text:
    Miles, Appellant, v. Pennsylvania Coal Company.

      Mines and mining — Surface support — Contract.
    While the owner of the surface is entitled as of natural right to its support by the owner of the subjacent mineral estate, the common owner of both estates, or the owner of the fee simple title to the tract of land, may by contract, relieve the owner of the mineral estates from any duty to support the surface, and from liability for any injury or damage done to it by mining and removing all of the mineral.
    Where a coal lease grants the right to remove all the coal, gives unlimited surface rights and stipulates that the lessee shall not be liable for any falling in of the surface in consequence of the mining and removing of the coal, the lessee may remove all the coal without any lia- • bility for injuries to the surface. A provision in the lease giving the lessors the right to enter upon the workings so as to satisfy themselves as to the correctness of the lessee’s return, and also giving the right to the lessors to designate where and in what manner more pillars are to be left, than it appears is the intention of the lessees to leave, does not change the construction of the instrument.
    Argued Feb. 27, 1907.
    Appeal, No. 77, Jan. T., 1907, by plaintiffs, from decree of C. P. Lackawanna Co., Jan. T., 1906, No. 2, dismissing bill in equity in case of William Miles et. al., v. The Pennsylvania Coal Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    The facts are stated in tlie opinion of the Supremo Court.

      Error assigned was decree dismissing the bill.

      H. M. Hannah and S. B. Price, for appellants. —
    The owner of the surface is entitled to absolute support, and, as in cases of rights to water, not as an easement or riglit depending on a supposed grant, but as a proprietary right at common law: Carlin v. Chappel, 101 Pa. 348; Youghiogheny River Coal Co. v. Bank, 211 Pa. 319; Horner v. Watson, 79 Pa. 242; Barnes v. Berwind, 3 Pennypacker, 140; Lehigh Coal & Nav. Co. v. Harlan, 27 Pa. 429.

      April 1, 1907:

      Everett Warren, with him E. N. Willard, Henry A. Knapp and Charles P. O’Malley, for appellee.
    It is well established that the surface owner’s right of surface support is a right which he may give up, or waive, or barter away, or dispose of as fully and freely as he may dispose of any other right: Scranton v. Phillips, 94 Pa. 15; Williams v. Hay, 120 Pa. 485.
   Opinion by

Mr. Justice Mestrezat,

By an agreement in writing dated November 23, 1880, the plaintiffs, or those under whom they claim, demised, leased and to mine let to the defendant company “ all the merchantable coal lying and being in the veins in, under and upon” a certain described tract of land in what was then Lackawanna township, Luzerne county, this state. The defendant companjq by virtue of this authority, mined and removed two-thirds of the coal, leaving the one-third thereof in the shape of pillars which support the surface. The company was proceeding to mine and remove the pillar’s when the plaintiffs filed this bill in the court below averring that the removal of the pillars would cause irreparable damage to .the surface, and praying an injunction to restrain such action by the defendant company. The defendant filed an answer averring that it had the right to mine and remove all the coal under the premises, including the pillars, and that any damage which might be caused to the surface of the land is released by the contract between the parties.

A motion was made for a preliminary injunction, which was refused. An appeal was taken by the plaintiffs to this court, which was heard last year, and the decree of the court refusing the preliminary injunction was sustained: Miles v. Pennsylvania Coal Company, 214 Pa. 544. On the return of the record to the court below, the case was proceeded in until a final decree, refusing an injunction, was entered from which we have this appeal.

The single question raised by the appeal is whether the defendant company has the right to mine and remove all the coal under the plaintiffs’ premises without leaving sufficient pillars to support the surface. The answer to the question requires the interpretation of the lease and depends entirely upon the proper construction of that instrument.

An able and elaborate opinion was filed by the trial judge in the court below on refusing the motion for a preliminary injunction and will be found in the report of the case when it was here on the previous occasion. The law applicable to the interpretation of such contracts is there correctly stated, as appears by the citation of our own cases and of other recognized authorities, and it is clearly pointed out that, applying the well-settled principles announced in those oases, the lease conferred upon the defendant company the right to mine and remove all the coal without leaving any pillars to support the surface, and without liability for any damage done to the surface.

It is settled law in this state that, in the absence of a contract providing the contrary, the owner of the mineral estate in a tract of land owes a duty, ex jure naturae, to the owner of the superincumbent estate of absolute support to the surface. The owner of the coal, like the owner of the surface, has an estate in land, but the former holds his subject to the right of the latter to demand that he do no injury to the surface by removing the coal. As we have said in a former case, the owner of the mineral must support the surface if it requires every pouud of coal to be left in place for that purpose. There can be no doubt that such are the reciprocal rights of the owners of the surface and of the mineral estate in this commonwealth. The several cases of this court on the subject conclusively determine the question.

While, however, the owner of the surface is entitled as of natural right to its support by the owner of the subjacent mineral estate, it is equally well settled that the common owner of both estates, or the owner of the fee simple title to the tract of land, may by contract relieve the owner of the mineral estate from any duty to support the surface and from liability for any injury or damage done to it by mining and removing all the mineral. Being the common owner of the whole title and, therefore, having the jus disponendi, he may make any legal disposition of the property he may desire. He may sell the coal and retain the surface, or he may sell the surface and retain the coal. In selling or leasing the coal, he may grant such rights to the vendee or lessee as either may desire or deem proper or necessary to remove the entire body of coal, as well as such., rights in, through or over the surface as may be necessary for the same purpose. In other words, having the absolute dominion over the property he may grant such rights therein and thereto as may be agreed upon and are stipulated for in the contract. This naturally and logically follows from his ownership of the fee simple title to the property.

In Barringer and Adams on Mines and Mining, 676, it is said: “ Though the right of surface support is absolute, yet the subjacent owner may be relieved of the corresponding obligation by a release from the surface owner or by the terms of the instrument creating his estate.” In Williams v. Hay, 120 Pa. 485, Mr. Justice Paxson, speaking for the court, says (p. 495): “ It is settled law in this state that where one person owns the surface and another person owns the coal or other minerals lying underneath, the under or mineral estate owes a servitude of sufficient support to the upper or superincumbent estate. This principle has no application where the same person is the owner of both estates, nor does it apply where by the contract between the parties they have covenanted for a different rule. Like any other right, the owner of the surface may part with the right to support, by his deed or coyenant.” Scranton v. Phillips, 94 Pa. 15, ivas an action to recover damages for injuries done to a lot and the building thereon by reason of the settling of the surface, caused by mining and removing the coal. It was held that the implied right of surface support might be excepted from the grant by apt words in the contract; and in delivering the opinion Mr. Justioe Merour, in construing the contract between the parties, said (p. 22): “ Thus, in clear, express and distinct language, it was agreed, the owner of the mine, his heirs and assigns, should be exempt from the very liability now attempted to be fastened on him and his assigns. We see no reason why a person shall not be bound by his agreement -to exempt another from liability for damages in working a coal mine, as well as from liability for damages resulting in the performance of any other kind of labor. No rule or policy of law forbids it.” In Smith v. Darby et al. L. K., 7 Q. B. 716, Mr. Justice Mellorsays (p. 726): “The man who grants the minerals and reserves the surface is entitled to make any bargain that he likes; both parties are just as much at liberty to make a bargain with reference to coals and. minerals, as to make a bargain with reference to anything else.”

The question, therefore, in this case is whether the contract of the parties permits the removal of all the coal, including the pillars, by the defendant company without liability for injury done thereby to the surface. If the plaintiffs by their contract have granted such right to the defendant company they are not now in a position, against the wishes of the defendant, to recall it, notwithstanding it may be, as their counsel urgently insists, injurious to their interests. Both parties must stand by the contract, which, on proper application, the court is required to enforce. A careful examination of the contract convinces us that the only purpose which both parties had in view when it was executed was the mining and removal of all the coal, and that such mining operations by the lessee should be without regard to the effect they might have upon the surface. The different provisions of the contract all point to this as the main and important purpose of the parties in entering into the lease. The demise is of “ all the merchantable coal .... in the veins in, under and upon ” the land; together with the right to mine and remove said coal in said veins until all the merchantable coal has been mined and removed from said veins on said hereby leased premises.” Then follow unlimited surface rights. The lessee is granted the right to use the lands “ for the digging and making of all air-shafts to and through the surface of said lands, with the right to dig the same as in the opinion of the said lessee may be necessary for the proper working and ventilation of the workings in the said veins of coal.” It is further convenanted that the lessee company may use any shafts, slopes or other openings already opened on the demised premises; and the company is granted without any restrictions whatever “ the right to deposit culm, dirt and refuse on the said lands hereby demised.” The surface was further put under the servitude of the lessee for road purposes by the following covenant: “ The said lessee-shall have the right of way over the surface of the said hereby demised tract of land for the construction and making of any and all railroads- and the roads that may be necessary for the removal and transportation of coal during the continuance of this lease, and after the coal on said hereby demised tract of land has been exhausted.”

It is apparent, we think, from these brief excerpts from the lease, that the intention of the lessors in entering into the contract was for the purpose of having the entire body of their coal mined and removed so that they could realize upon it; and that this was to be done Avithout regard to the effect of the mining operations upon the surface. The contract grants in terms all the coal, with the right to mine and remove it. The surface rights, it will be observed, are unlimited and substantially .confer authority upon the lessee to use the surface to the exclusion of its owners. The rights of the lessee company to the surface could scarcely be greater if the lessors had granted it the fee during the continuance of the mining operations. These stipulations show the intention of the parties in entering into the contract, and that the manifest purpose on the part of the lessors Avas to realize upon the entire mineral estate.

In addition to the intention of the lessors, thus clearly disclosed, that the lessee should mine and remove all the coal without regard to the injury done the surface, it is specifically covenanted in the agreement as follows: It is hereby further agreed that the said lessee shall not be liable for any falling in of any part or parts or all of the surface of the said hereby demised premises in consequence of the mining and removing of all of the said coal, and the said lessors shall indemnify the said lessee against any liability for any falling in of any surface of any lots on said demised premises the surface of which may have been sold by said lessors.” Here is an express covenant by the lessors not only relieving the lessee from injury to the surface in consequence of the mining operations in removing all the coal, but also indemnifying the lessee against liability for injury that may be done to the surface of any lots which may be owned by other persons than the lessors. Bead in connection with the stipulations in the lease granting the right to remove all the coal, this covenant against liability for injury to any part of the surface arising from the act of mining and removing all of the coal is conclusive against the contention of the lessors that the lessee is required under the lease to leave pillars or any part of- the coal for the support of the surface. As said by Mr. Justice Mercur in Scranton v. Phillips, 94 Pa. 15, “ in each case the question is, did the parties agree there should be no obligation in regard to support ? ” In the case in hand, the agreement is explicit and clearly confers upon the lessee the right to remove all the coal without regard to the damage which may result to the surface. Of course in exercising the right to remove all the coal, the lessee must use proper methods in its mining operations, and must not by careless and negligent mining injure the surface: Youghiogheny River Coal Co. v. Allegheny National Bank, 211 Pa. 319. But aside from this limitation the lessee company may, under its contract, remove all the pillars which it has heretofore left to support the surface, and if it results in injury to the superincumbent estate, the owner has no redress against the company.

It is contended, however, by the plaintiffs that the following clause of the lease prevents the removal of the pillars, and shows that the parties intended they should remain in place to support the surface: It is hereby further agreed that the said lessors shall have the privilege at any time, by their agent or engineer, to enter upon the workings of the said lessee in and upon the said hereby dendsed lauds, and to satisfy themselves as to the correctness of the returns of the quantity of the coal mined, and if said lessors may wish at any time to have more pillars left in the mines than it appears to bo the intention of the said lessee to leave or than said lessee may have left in similar workings in said hereby demised premises, the said lessors may by written notice to said lessee designate where and in what manner such pillars are to be left.” Notwithstanding the very earnest argument of the plaintiffs’ counsel in support of their interpretation of this clause of the contract, we are clear that it is not tenable. This clause must be construed with the other parts of the agreement with a view of giving effect to the whole instrument. It was not the intention that it should abrogate those parts of the agreement which give the lessee the right to remove all the merchantable coal with a release from liability for injury done the surface. That will not be presumed in the absence of language clearly importing such purpose. The first part of the clause gives the lessors the right to enter the mine to verify the correctness of the quantity of coal returned as mined by the lessee; and the latter part was to enable the lessors to ascertain if the mining operations were being conducted so that “ all the merchantable coal could be removed.” Both clauses were inserted in the contract to enable the lessors to protect their interests, and for that purpose the latter had the stipulation inserted that they might “designate where and in what manner such pillars are to be left.” The lessee company was impliedly required to conduct the mining operations skillfully and carefully, but the lessors intended by the stipulation in question to make themselves the judges of the fact, with authority to direct the place and number of the pillars necessary to accomplish the purpose. Had the pillars been removed or an insufficient number of pillars been left in the progress of the mining, it is apparent that it would have greatly diminished the quantity of coal which could have been removed from the mine, and consequently the amount of royalty which the lessors would have received. It was therefore necessary that the lessors secure their interests by a provision in the contract that they might, at any time during the progress of the mining, require the lessee to protect the mine by additional pillars of such extent and in- such locality as the lessors might designate. This was the manifest purpose of the clause in question. After all the coal, except the pillars, had been mined, and the pillars Avere no longer needed to protect the mine and the mining operations, the lessee was authorized by the contract to remove them and account to the lessors for the royalty.

The assignments of error are overruled, and the decree is affirmed.


source: Caselaw Access Project

author: Mr. Justice Mestrezat,

license: Public Domain

text:
    Bickel v. Pennsylvania Railroad Company, Appellant.

      Negligence — Railroads—Grade crossing — Contributory negligence — Case for jury — “Stop, look and listen.”

    It is the duty of the employees of a train approaching a crossing to give such signal as will protect the traveler if he is in the exercise of ordinary care. It is not a conclusive answer for a railroad company to say that the bell was rung or the whistle was sounded in reply to a charge that a train negligently approached a grade crossing, unless it appears that under the circumstances of the case such signal was sufficient to give timely notice to travelers who were approaching the crossing on the highway. At such crossing the duties of the company and of the traveler are reciprocal. Each must approach the crossing with a due regard for the rights of the other, and when either fails to observe the care required, it is negligence for which the guilty party is responsible. Either party will only be absolved from the charge of negligence if he has done what the circumstances of that particular case required a prudent man to do.
    In determining the duty of a person approaching a dangerous grade crossing with restive horses, regard must be had not only to the conduct of the driver under the circumstances, but that of the railroad company in not giving proper signals at a point where the driver would have heard them in time to save himself from being placed in a dangerous position.
    Argued March 4, 1907.
    Appeal, No. 204, Jan. T., 1906, by defendant, from judgment of C. P. Berks Co., March T., 1905, No. 17, on verdict for plaintiff in case of Angeline E. Bickel v. The Pennsylvania Railroad Company.
    Before Mitchell, C. J., Brown, Mestrezat, Elkin and Stewart, J J.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Endlich, J.
    The facts are stated in the opinion of the Supreme Court.
    Yerdict and judgment for plaintiff for $3,425. Defendant appealed.

      Error assigned was in entering judgment upon the verdict.

      Cyrus G: Derr, for appellant, cited:
    Blotz v. R. R. Co., 212 Pa. 154; Schum v. Penna. R. R. Co., 107 Pa. 8; Cohen v. Phila. & Reading Ry. Co., 211 Pa. 227; Gerety v. R. R. Co., 81 Pa. 274; Penna. R. R. Co. v. Goodman, 62 Pa. 329; Garlich v. Northern Pac. Ry. Co., 131 Fed. Repr. 837; Phila., etc., R. R. Co. v. Stinger, 78 Pa. 219; Black v. Bessemer & L. E. R. R. Co., 216 Pa. 173.

      Isaac Hiester, for appellee, cited:
    Childs v. Penna. R. R. Co., 150 Pa. 73; Goggin v. R. R. Co., 43 Pitts. L. J. 151; Faust v. P. & R. Ry. Co., 191 Pa. 420; P. & R. R. R. Co. v. Killips, 88 Pa. 405; R. R. Co. v. Stinger, 78 Pa. 219; Penna. R. R. Co. v. Weber, 72 Pa. 27; Patterson v. Ry. Co., 210 Pa. 47; Schum v. Penna. R. R. Co., 107 Pa. 8; Hoffmeister v. Penna. R. R. Co., 160 Pa. 568; Davidson v. Ry. Co., 179 Pa. 227; Muckinhaupt v. Erie R. R. Co., 196 Pa. 213; Cromley v. Penna. R. R. Co., 208 Pa. 445; Schwarz v. Del., L. & W. R. R. Co., 211 Pa. 625; Breunninger v. Penna. R. R. Co., 9 Pa. Superior Ct. 461; Ely v. Ry. Co., 158 Pa. 233.
    April 1, 1907:
   Opinion by

Mr. Justice Mestrezat,

This is an action of trespass brought by the plaintiff to recover damages for the death of her husband who was killed by a collision with the defendant company’s train at a grade crossing. In a charge, exceptionally clear and concededly adequate, the learned trial judge submitted the question of the defendant’s negligence and the deceased’s contributory negligence to the jury who returned a verdict for the plaintiff. A formal motion for a new trial was made but not pressed, and .the learned counsel for the defendant company took a rule upon the plaintiff to show cause why judgment non obstante veredicto should not be entered for the defendant under the Act of April 22, 1905, P. L. 286. In an exhaustive opinion by the trial judge, he has reviewed at length the facts as well as the law applicable to the case, and has conclusively demonstrated that there was sufficient evidence to justify the court in submitting the case to the jury. The authorities cited amply sustain his view of the law, and the testimony to which he refers clearly shows that the case could not have been withdrawn from the jury on either of the two questions submitted for their consideration. The defendant company has, therefore, had its case considered twice by an able and thoroughly competent court, who heard the testimony and who dealt with every question which now appears upon this record. So satisfactory to the defendant’s counsel was the case disposed of in the court below, that the single complaint in this court is that the trial court erred in not directing a verdict for the defendant, and subsequently, in not entering judgment for the defendant notwithstanding the verdict.

Under the testimony in the case, the defendant’s negligence was clearly a question of fact for the jury. And it was made to turn upon the question whether the whistle was blown at the whistle-post and the fireman rang the bell for the crossing at which the deceased was killed. The court, on request of defendant’s counsel, instructed the jury that “if the defendant’s engineman sounded the whistle at the whistle-post and the fireman rang the bell thence to the crossing at which the accident happened, the verdict must be for the defendant.” In affirming that point, the learned court surely gave the defendant company all it was entitled to under the facts of the case. Notwithstanding- the topography of the country, the character of the crossing and the obstructed view which the deceased had of the approaching train, the learned judge told the jury that the defendant company was relieved from liability if it blew the wdiistle at the post and rang the bell until the crossing was reached. Under the submission, the verdict establishes the fact that the engineer failed to give the signal at the whistle-post which, by making a rule requiring it, the defendant company shows that it regarded the signal at that place as necessary to protect the public who had occasion to use the crossing. The learned counsel for the defendant company contends that the testimony of its witnesses shows conclusively that the signal wras given at the whistle-post, but we think the trial court’s analysis of it clearly discloses that the engineer is the only witness who testifies positively that the signal was given. The testimony of the defendant’s other witnesses is clearly open to the doubt and uncertainty which the trial judge points out in his opinion. We think the contradictions of the engineer warranted the jury in disregarding his testimony entirely on that point. Material parts of it are flatly contradicted by other witnesses who were corroborated by certain nncon tro verted facts in the case. For the trial court under these circumstances to have instructed the jury that they should believe the testimony of the engineer and disregard all the other testimony in the case as to whether the signal -was given at the post or not, would have been manifest error. As we have said, an analysis of all the testimony on this point, of the defendant as well as of the plaintiff, shows that the question was undoubtedly for the jury.

The learned judge, as we have seen, gave the jury positive instructions that if the whistle was sounded at the whistle-post and the fireman rang the bell thence to the crossing, the defendant’s employees had done their duty and the defendant company was relieved from liability for the death of the plaintiff’s husband. The learned court might have gone further and told the jury broadly that it was the duty of the defendant’s employees in charge of the train to have given timely and sufficient warning of its approach to the crossing in view of the circumstances of the case, such as the character of the crossing, the ability of travelers to see an approaching train, the rate of speed of the train, etc., and that, failing to do so, the plaintiff, in the absence of negligence on -the part of the deceased, was entitled to recover. While the law does not point out any particular mode or manner in which notice of trains approaching a crossing shall be given, it does require that some suitable and adequate means, adapted to the circumstances, shall be adopted and applied: Sterrett, J., in Philadelphia & Reading Railroad Co. v. Killips, 88 Pa. 405. In Ellis v. Lake Shore, etc., Railway. Co., 188 Pa. 506, the defendant company submitted several points for instruction, its first point, which was negatived by the trial court, being as follows: If the jury find from the evidence in this case that the engineer of the defendant company sounded the whistle at a proper distance, and rang the bell as they approached the road crossing, then the defendants have done their whole duty, and are guilty of no negligence, and there can be no recovery in thjs case.” In sustaining this ruling, this court said (p. 519): “ We do not think it was error to decline to affirm the defendant’s first point. The vice of the point is that it assumed that the railroad company had performed its whole duty, provided the whistle was sounded and the bell rung at a proper distance from the crossing. But there was another element in the case which the jury were necessarily compelled to pass upon, viz.: the rate of speed at which the train approached the crossing. The character of the crossing itself was a circumstance which could not be ignored, and which necessarily affected the relative duties of both the plaintiff and the company. If it was a dangerous crossing, as was practically admitted on both sides, it was the duty of the plaintiff to exercise the more care in approaching it. At the same time, it was equally the duty of the defendant company to see that their trains passed at a reasonable rate of speed, proportioned to the danger. In other words, negligence is the absence of care according to the circumstances, and must be measured by the apparent danger.” In Childs v. Pennsylvania Railroad Co., 150 Pa. 13, the court discusses the rate of speed at which a railroad may run its trains in the open country and its duty to give signals in approaching a crossing. It is there said (p. 11): “ While railroad companies may move their trains at such rate of speed as the character of their machinery and roadbed may make practicable, they must not forget that increased speed for the train means increased danger to those who must cross the tracks, and that increased care on their part to guard against accidents becomes a duty.” After referring to the facts of the case, the court continues : “The question suggested by these facts is whether, at such a crossing, and with such a rate of speed, the bell can be heard far enough to be a proper method of giving warning. If it could be heard a quarter of a mile away, it would afford a trifle more than a quarter of a minute for the traveler to determine what to do, and to do it. If the whistle could be heard twice or three times as far, the time afforded the traveler to escape from danger would be twice or three times as great. If, for want of a few additional seccfrids of time, which another mode of giving warning would have afforded, property or life be destroyed, is it not for the jury to say whether or not the longer warning ought, under the circumstances, to have been given % ” In concluding the opinion, the learned judge says (p. 18): “ We think there was one question clearly raised by the testimony which was exclusively for the jury, Viz.: whether a train approaching a crossing, situated like that at Dark Run Lane, at a high rate of speed, can give sufficient notice of its approach by ringing a bell ? If they should find the fact to be, that a train moving at the rate of speed at which this train was running, would cover the distance between a point from which its bell could be heard at the crossing, and the place of crossing, in so short a time as to make the signal of little or no use to one in the act of crossing the track, then the failure to give notice by the whistle from a longer distance away would be negligence.”

From these and other cases the rule is established that it is the duty of the employees of a train approaching a crossing to give such signal as will protect the traveler if he is in the exercise of ordinary care. It is not a conclusive answer for a railroad company to say that the bell was rung or the whistle was 'sounded in reply to a charge that a train negligently approached a grade crossing, unless it appears that under the circumstances of the case such signal was sufficient to give timely notice to travelers who were approaching the crossing on the highway. At such crossing, the duties of the company and of the traveler are reciprocal. Each must approach the crossing with a due regard for the rights of the other, and when either fails to observe the care required, it is negligence for which the guilty party is responsible. Either party will only be absolved from the charge of negligence if he has done what the circumstances of that particular case required a prudent man to do.

The question of the contributory negligence of the deceased was likewise for the jury. Here, again, we are met "with the testimony of the engineer, but again we are compelled to suggest that his veracity was on trial and was a question for the decision of the jury. Falsus in uno, falsus in omnibus is a maxim which.applies to the testimony of the engineer. The testimony of some of the other withesses is wholly irreconcilable with that of the engineer, and hence the duty imposed upon the jury to say whether or not he was mistaken as to the conduct of the deceased and his son when they approached the fatal crossing. In the absence of a similar experience, we cannot determine What our conduct would be if we were within a few yards of a grade crossing with a team of skittish horses and an approaching train sounding shrill blasts from its whistle was discovered turning a curve about TOO feet distant and traveling towards us at the rate of forty-five miles an hour. Whether we would back the horses, turn them to one side, or attempt to cross the track, or could .control the team at all few men can tell until they are subjected to the perils of such a situation. A judge in his chambers or a lawyer in his office without the experience may surmise what he would do or what another ought to do under those circumstances, but it would simply be a guess on his part, lacking the confirmation of a practical test, and hence without the weight and deference due the finding of twelve intelligent men whose experience in the everyday affairs of life fit them more certainly to judge of what a prudent man would do under such circumstances. Here, the deceased and his son wore traveling on a highway almost parallel with the railroad and with their view of an approaching train obstructed by buildings, trees, etc., until they were within about sixty or' seventy feet of the crossing, when they could see a train for a distance of about 750 feet. The crossing was approached on a highway about twelve feet wide and of ascending grade. Sixty-seven feet distant from the crossing was a branch of the Reading railroad which the travelers were required to cross before they reached the defendant’s road. The train was traveling at a speed of at least forty-five miles an hour, which would have required possibly about ten seconds for it to have run 750 feet, from the place where it could first' have been seen by the deceased to the crossing whore it struck him. Conceding that the Reading road was seldom used, yet his duty required the deceased not to stop upon it, and hence he was within less than sixty-seven feet from the crossing and had not more than ten seconds to determine what to do, and to do it.” What a prudent man ought to do under those circumstances was clearly for the jury to say. If a proper signal had been given at the whistle-post 1,387 feet away, the chances are that the deceased and his son would have heard it and that they would not have been placed in this most dangerous position. In determining the duty of the deceased at this time, regard must bo had not only to his own conduct, but that of the defendant company. As said in Bard v. Philadelphia & Reading Railway Co., 199 Pa. 94: “ In determining the negligence of a plaintiff in a case of this character, it is often necessary to consider not only his conduct on the occasion but also that of the defendant. This was at the crossing of a street where both parties had a right to be. Each party had also the right to act with the belief that the other would exercise his right at the place in the manner and way his duty required him to do. . . . The plaintiff was justified in believing that the defendant’s employees would perform their duty in this respect (observe the care required in approaching a grade crossing), and he could act on such belief without any imputation of negligence.” The exact distance of the deceased from the crossing at the time he discovered the approaching train is not shown, but he must have been very nearly committed to the act of crossing because his horses were across the defendant company’s tracks when the engine struck the wagon “ right opposite the seat.” Considering the delay caused by the unruly conduct of his horses, as disclosed by the engineer’s testimony, the deceased would have had no difficulty in passing the crossing in safety, had not the rapid approach of the train and the two shrill blasts from the whistle frightened the horses and made them unmanageable. To a horse unaccustomed to a steam whistle, there is nothing that will frighten it more than the successive blasts of the whistle of a locomotive in the near vicinity. When, therefore, we consider the character of this crossing, the conduct of the defendant company’s employees, and the position of the deceased at the moment of his first warning of the approaching train, it is clear that the nature of his conduct on the occasion, whether negligent or otherwise, was under all the circumstances a question for the jury. It unquestionably was his duty to stop, look and listen for an approaching train at a proper place, and to continue to observe due care to prevent a collision until he had passed entirely beyond the company’s track, yet the law presumes, in the absence of evidence to the contrary, that this duty was performed. The credibility of the engineer, as well as that of all the other witnesses, was for the jury, and the testimony being sufficient, the learned judge committed no error in submitting the case.

The assignment of error is overruled, and the judgment of the court below is affirmed.


text:
    Chauvenet v. Person, Appellant.

      Mines and mining — Lease—Continuous mining — Forfeiture.
    The right to forfeit a mining lease for cesser of mining for one year is not defeated by a provision in the lease for the payment of a minimum royalty, and the acceptance of such a minimum royalty is not a waiver of the right of forfeiture.
    A lease of iron ore gave the lessee one year to explore the premises for ore and contained a covenant that immediately thereafter mining operations should commence, and that if the lessee failed to prosecute the operations, and should at any time during the remaining term of the agreement for a continued period of one year fail to mine and raise ore upon which royalty was payable, “with the view of fully working said land, everything contained herein shall at the option of the lessors, cease and be forever null and void, excepting as to the liability of the lessees herein.” The lease also provided “that after the expiration of one year from the date of this lease, the lessee must mine and take away at least one thousand tons of ore annually, or pay the royalty on that amount.” Held, (1) that after the expiration of one year, the lessors could avoid the lease on the lessee’s failing at “any time” to prosecute the mining operations for a continuous period of one year; (2) that the provision for the payment of a minimum royalty did not defeat the right of forfeiture for cesser of mining for one year; and (3) that the acceptance of the minimum royalty was not a waiver of the forfeiture-bearing clause of the lease.
    Elkin, J., dissents.
    Argued March 5, 1907.
    Appeal, No. 214, Jan. T., 1906, by defendant, from judgment of C. P. Berks Co., Nov. T., 1905, No. 49, on verdict for plaintiff in case of S. JET. Chauvenet v. M. J. Person, Allen C. Smith, John Kaufman and Ilenry Kaufman.
    Before Mitchell, C. J., Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Ejectment for mineral land in Earl township. Before Ermentkout, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The trial judge charged in part as follows:
    By the terms of the lease the action in declaring it null and void did not interfere with the liability of the lessees up to the time of serving the notice. The lessors had a right to collect and receive any royalties so due. The receipt of such royalty ivas not, therefore, a waiver of any right of forfeiture. The minimum royalty ivas all that the lessees were liable to pay. The payments of $200 on April 6, 1905, and of $50.00 on July 13, 1905, respectively, were due and payable, regardless of any question of forfeiture of the lease, as the minimum royalties then due.
    When the lease ivas executed, the lessees entered into possession of the premises. Although executed, it appears the lease was not acknowledged until July 13, 1905. Thisacknowledgment was simply supplying an omission to do so when the lease was executed, and can only be construed to be an acknowledgment and reaffirmation of the provisions therein contained. The formal acknowledgment before the officer was simply an act of justice to both parties, preventing any dispute as to its terms and preserving their respective rights. By so doing no rights thereunder were surrendered or waived by either party. The lease was in full force until the lessors exercised their option to terminate it. The acknowledgment of it was no waiver of lessors’ right to exercise any option they possessed.
    I, therefore, say that if the testimony is believed by the jury, and the facts as to the breach of the lease therein set forth are fully made out, the plaintiff would be entitled to a verdict in his favor for the land described in the writ and six cents damages and costs.
    Yerdict for plaintiff upon which judgment was entered. Defendants appealed.

      Errors assigned among others was above instruction, quoting it.

      Edward Harvey and C. H. Buhl, for appellants.
    Forfeiture of a lease will not as a rule be allowed for a mere failure to pay rent. There must be a demand : Verdolite Co. v. Richards, 7 North. Co. 113; Haldeman v. Sampter, 2. Del. Co. 106.
    The receipt of rent is a distinct and unequivocal admission that the relation of landlord and tenant still exists, and therefore is necessarily a waiver of any forfeiture of the lease which might previously have accrued: Newman v. Rutter, 8 Watts, 51; Beatty v. Masavage, 13 Luz. Leg. Reg. Rep. 40; Navigation Co. v. Early, 162 Pa. 338; Natl. Pub. Assn. v. Furniture Co., 18 W. N. C. 379; Riddle v. Mellon, 147 Pa. 30.
    Where the lessor sues for the entire amount of rent due, he ratifies and confirms the continued existence of the lease and waives all previous forfeitures: Alexander v. Touhy, 13 Kan. 64; Randol v. Tatum, 98 Cal. 390 (33 Pac. Repr. 433); McKildoe v. Darracott, 13 Gratt. (Va.) 278; Camp v. Scott, 47 Conn. 366; Collins v. Canty, 60 Mass. 415; Croft v. Lumley, 6 H. L. Cases, 672; Arnsby v. Woodward, 6 Barn. & Cress. 519; Conger v. Duryee, 90 N. Y. 594.

      April 1, 1907:

      Jefferson Snyder, of Snyder & Zieber, for appellee.
    The exaction of the minimum royalty does not cancel the right to forfeit for failure to mine in good faith: Becker v. Werner, 98 Pa. 555.
    The failure to operate the mines in good faith from April 20, 1904, until August 19, 1905, when Mrs. Spang gave notice that she availed herself of her option to declare a forfeiture, was a continuing breach of the lessee’s covenant, and even if the receipts of the minimum royalty April, 1905, and July 12, 1905, and the acknowledgment of the lease July 13, 1905, constituted a waiver of any breaches concluded at these several periods, the lessor had a right to declare a forfeiture for the continued breach concluded on August 19, 1905: Doe. v. Bancks, 4 Barnewall & Alderson, 401; Doe v. Baker, 5 Welsby, Hurlst. & Gordon, 498; Granite Bldg. Assn. v. Greene, 25 R. 1. 48 (54 Atl. Repr. 792); Alexander v. Hodges, 41 Mich. 691 (3 N. W. Repr. 187); Gluck v. Elkan, 36 Minn. 80 (30 N. W. Repr. 446); Farwell v. Easton, 63 Mo. 446; Jackson v. Allen, 3 Cowen, 220; Bleecker v. Smith, 13 Wend. 530; Doe v. Woodbridge, 9 Barn. & Cress. 376; Fryett v. Jeffreys, 1 Espinasse, N. P. Cases, 393; Price v. Worwood, 4 H. & N. 512.
   Opinion by

Mr. Justice Mestrezat,

This is ejectment to enforce the forfeiture of a mining lease. Sarah A. Spang was the owner in fee of a tract of land containing about 118 acres in Berks county, and she and Jacob K. Spang, her husband, the lessors,” by an agreement dated April 20, 1903, assigned, granted, bargained and sold to Allen C. Smith, “ the lessee,” for the term of twenty years, the exclusive right to all the iron ore and other minerals in the land with the right to mine and remove the same. The consideration was twenty cents a ton, payable quarterly, on all merchantable iron ore mined and taken from the premises.

The lease contained the following provision: “ It is further understood and agreed that the said lessee shall have the privilege for a period of one year from the date hereof of exploring and digging for ore upon the said demised premises, and that immediately thereafter mining operations must actively commence ; and in case the said lessee shall immediately upon the expiration of one year from this date fail to prosecute his mining operations and shall at any time during said remaining term of this agreement for a continuous period of one year fail to dig for, mine, raise and wash iron ore upon which royalty is payable as provided in this agreement, with the view of fully working said lands, then in that case, these presents and everything contained herein shall, at the option of the lessors, cease and be forever null and void, excepting as to the liability of the lessee herein. It is further understood and agreed that after the expiration of one year from the date of this lease, the lessee must mine and take away at least one thousand tons of iron ore annually or pay the royalty on that amount. It is also agreed and understood that any and all payments made by the lessee to the lessors of royalty upon iron ore not mined as above provided, shall be considered as payment in advance and that the lessee may deduct all such amounts or payments from iron ore subsequently mined and taken away by the lessee and on which royalty is payable under this lease.”

The lessee entered into possession of the premises and made some explorations, but failed to commence and prosecute mining operations upon the premises. On April 6, 1905, he paid to the lessors $200, “being the minimum royalty due from April 20, 1904 to April 20, 1905.” On July 13, 1905, the lessee paid to Jacob E. Spang $50.00, “ quarterly royalty due under lease July 20, 1905.” On the same day the lessors acknowledged the execution of the lease and had it recorded in the recorder’s office of Berks county.

By a notice in writing dated August 19, 1905, the lessors notified the lessee “ that mining operations were not actively commenced after-the year set from the date of said, agreement for exploring and digging for ore; and in view of the fact that you have failed to prosecute mining operations within a year from the date of the agreement, as well as that for a continuous period of one year you have failed to dig for, raise and wash iron ore, the undersigned lessors, according to the option given them under said lease, hereby desire to notify you that they now avail themselves of said option whereby said agreement, and everything contained therein, shall cease and be forever null and void ; and now here notify you of their desire forthwith to repossess themselves of the said premises, . . . . and that the agreement entered into April 20,1903, between you and the undersigned, cease and be null and void from the date thereof.”

By deed dated October 11, 1905, Sarah A. Spang and her husband conveyed the premises in fee to S. II. Chauvenet, the plaintiff, who shortly thereafter brought this action to enforce the forfeiture of the lease. On the trial of the cause in the court below the learned judge was of the opinion that the lessors had a right to exercise their option in declaring the lease void, and directed a verdict for the plaintiff. The defendants have taken this appeal.

The correctness of the judgment of the court below and the rights of the parties depend upon the contract of April 20, 1903. We must interpret the agreement so as to carry out the intention of the parties, if it can be gleaned from the instrument with the assistance of the law: 2 Snyder on Mines, sec. 1281. In such cases, the lease presupposes that the lessee will work the mine, and gives him the entire control over the premises: Koch’s Appeal, 93 Pa. 434. Here, the purpose of the lessors in leasing the ore unquestionably was, as shown by the lease, “ with the view of fully working said lands.” It was not with the intention of securing a small rental or royalty on the ore and leaving it in place, but for the purposé of having the lands fully developed and realizing as speedily as possible on all the ore in the lands at the royalty named in the lease. Best, J., in Doe v. Bancks, 4 B. & Ald. 401, speaking of a forfeiture-bearing covenant in a mining lease, uses the following language which is pertinent and applicable here: “ The rent was to depend upon the number of tons of coal raised. In order to derive any benefit from the mine, it was the object of the landlord, by introducing this clause, to compel his tenant to work it. The clause therefore was introduced solely for the benefit of the landlord, to enable him in case of a cesser to work, to take possession of the mines, and either work them himself, or let them to some other tenant. That, therefore, being the object of the parties in introducing this clause, I think it "will bo fully answered, by holding the lease to be void at the option of the landlord.”

We have quoted at length the forfeiture-bearing clause of the lease involved in this controversy. It gives the lessee one year to explore the premises for ore, and contains a covenant that immediately thereafter mining operations- shall actively commence and that if the lessee fail to prosecute the operations and shall at any time during the remaining term of the agreement for a continuous period of one year fail to mine and raise ore upon which royalty is payable, “ with the view of fully working said lands, everything contained herein shall, at the option of the lessors, cease and be forever null and void, excepting as to the liability of the lessee herein.” This language is plain and comprehensive and leaves nothing in doubt. The duty of the lessee is clearly pointed out, and the rights of the lessors, on his failure to perform that duty, are plainly declared. During the first year after the execution of the agreement, the lessors had the privilege of exploring the premises. Then active mining operations were to commence and to be duly prosecuted. To enforce the covenant requiring the lessee to operate the mines, the stipulation was inserted authorizing the lessors to avoid the lease on the lessee’s failing at any time” to prosecute the mining operations for a continuous period of one year. It is manifest, therefore, that under this clause of the contract the lessors could forfeit the lease on failure to prosecute’the work actively for one year. It is equally clear that, as the lessee has never commenced nor carried on mining operations, the lessors were at liberty to declare the lease forfeited and resume possession of the premises at the time notice to that effect was given, unless another part of the contract prevented the lessors from enforcing the forfeiture.

It is contended by the learned counsel for the appellants that a forfeiture is prevented by reason of the clause providing “ that after the expiration of one year from the date of this lease, the lessee must mine and take away at least one thousand tons of ore annually or pay the royalty on that amount.” It is claimed that payment under this clause of the contract relieves him from the duty of commencing or prose'cuting mining operations upon the demised premises. It is urged by the appellants that this clause gave the lessee the privilege of paying a minimum royalty in lieu of prosecuting the mining operations, and that a compliance with it relieves him from his covenant to work the mines.

We think this contention is wholly untenable. It overlooks the manifest purpose of the parties in entering into the lease as well as the explicit language of the instrument itself. It reads the minimum royalty clause as an alternative provision of the forfeiture-bearing clause. In other words, the appellants’ contention is that the lessors can declare a forfeiture of the lease only if the lessee fails to prosecute mining operations at any time for the period of a year or fails to pay the royalty on 1,000 tons of ore annifally. The position would be correct if the contract had provided that the failure to prosecute the mining operations should cause a forfeiture unless the lessee paid the minimum royalty. Such clauses are frequently inserted in oil and gas leases, and then of course the payment of the royalty relieves the lessee from the penalty of forfeiture, but this contract is not susceptible of that interpretation. The forfeiture-bearing clause was inserted expressly for the benefit of the lessors; and is enforceable at their option whenever the lessee fails to observe his covenant to prosecute mining operations “ for a continuous period of one year.” If he failed to prosecute the mining operations “ with the view of fully working said lands,” as required by the contract, the lessors then were authorized to declare a forfeiture of the lease. This gave them, at their option, authority to compel the lessee to develop or surrender possession of the mines. If, however, we are to read the minimum royalty clause, as contended by the appellants it should be read, then the provision inserted in the lease to enable the lessors to compel the lessee to observe his contract by “ fully working said lands ” is annulled, and the latter may remain in possession of the lessors’ mines by simply paying a small annual rental or royalty and thereby depriving the lessors of having their mines fully developed and realizing upon the ore. That such was not the intention of the parties we think is too clear for argument. After the expiration of one year from the time in which the lessee had the right to explore the land, the lessors might at any time exercise their option to declare a forfeiture on failure of the lessee to prosecute the mining operations. They could, however, permit the lessee to remain in possession of the premises without carrying on the mining operations, and if they did so the lessee was required, as a consideration for the forbearance, to pay the minimum royalty provided in the contract, but the payment of that royalty did not prevent their exercising the option to declare a forfeiture of the lease. As said in a standard work on the subject, the right of forfeiture was not abridged by the addition of a covenant to pay fixed damages for delay: Bar-ringer and Adams on Mines, 149. The minimum royalty clause was simply a provision for the payment of a rental during the time the lessee failed to carry on mining operations until the forfeiture should be declared, and was clearly not a covenant requiring the lessee to do a certain amount of mining or pay a minimum royalty, and imposing the penalty of a forfeiture on failure to do one or the other. It should be observed that the contract does not authorize the lessors to forfeit the lease for refusing to pay royalty, but only for failing to prosecute mining operations for a continuous period of one year. The neglect to pay the minimum royalty was a breach of the lessee’s covenant, but not a cause for forfeiting the lease. The payment of the royalty, therefore, has no bearing whatever upon the right of the lessors to declare a forfeiture of the lease. The right to forfeit the contract is wholly disconnected with the payment of the royalty, and is not affected by its payment or nonpayment. The right to exercise the forfeiture depends entirely upon another and different default by the lessee.

We do not agree with the contention of the' appellants that the payment and receipt of the minimum royalty was a waiver of the forfeiture-bearing clause of the contract. So long as the lessee neglected to commence and carry on the mining operations, he was required, under the contract, to pay the royalty, and as often as it became due and payable the lessors could enforce its payment without affecting their right to subsequently declare á forfeiture of the lease. It was a consideration for the exercise by the lessors of forbearance to annul the lease, and became due at the times stipulated, during said remaining term of this agreement.” If at any time after the expiration of two years from the date of the lease, there had been any of the minimum royalty due, the lessors could have declared a forfeiture of the lease and also, collected the amount of the arrears of royalty, as the lease specifically provides that at the option of the lessors it shall become void, “ excepting as to the liability of the lessee herein.” It is, therefore, clear that the act of the lessors in declaring the lease void at any time, would not, by the express stipulation of the contract, relieve the lessee from the payment of arrears of minimum royalty, or from the performance of any other duty or act required of him by the agreement. The right and the authority to annul the lease were exclusively for the benefit of the lessors, and the lessee could in no way derive any advantage or be relieved from any duty imposed by the contract by the exercise of the lessors’ option to nullify the lease. The royalty on the ore mined was, as we have seen, payable quarterly and the minimum royalty was payable in the same way. This was so understood by the lessee as appears by the receipt, accepted by him, for the §50.00 paid on July 13, 1905, as “the quarterly royalty due under the lease.” This was the second payment made on the minimum royalty, and it was all due when paid.

The conditions permitting a forfeiture existed on August 19, 1905, when the lessors exercised their option and, by a notice in writing addressed to the lessee, declared the lease void. Until this declaration was made, and for a year immediately prior thereto, the lease was in full force and effect and hence the lessors were acting in strict compliance with the contract in declaring it void at that time. The English courts have passed upon this very question and sustained the view here taken. In Doe v. Bancks, 4 B. & Ald. 401, in the King’s Bench, a lease of coal mines reserved a royalty rent for every ton of coal raised, and contained a proviso that the lease should be void, to all intents and purposes, if the tenant should cease Avorking at any time for íavo years. After the working had ceased more than Iavo years, the lessor received rent which, it was claimed, was a waiver of the forfeiture. It was held, however, “ that a tenancy from year to year was not thereby created ; for the lease was not absolutely void by the cesser to work, but voidable only at the option of the lessor, and that he might avoid the lease upon any cesser to work commencing two years before the day of demise in the ejectment.” Abbott, C. J., said (p. 406): “ There is no distinction between the very day after the receipt of the rent and the period of a week or month. I am of opinion that the legal effect of this instrument is that it is voidable only at the election of the landlord, and that he is at liberty to make the lease void at the end of any two years, during which two years there had been a continued cesser to work.” The same doctrine was announced in Doe v. Baker et al., 5 Welsby, Hurlst. & Gordon, 498, where it was held that the receipt of rent is no waiver of a continuing breach of covenant. In that case a lessee was bound under penalty of forfeiture to repair within a reasonable time. After breach the lessor accepted rent, but it was held that the reasonable time for reparation did not commence afresh after such acceptance of rent. In Taylor’s Landlord and Tenant, sec. 500, the learned author, citing numerous cases sustaining the doctrine, says: “ Where there is a continuing cause of forfeiture, the landlord will not be precluded from taking advantage of it by receiving rent which accrued after the breach was originally committed.”

Here the cause of forfeiture continued until the declaration by the lessors. So long as the lease remained in force and the lessee failed to prosecute the mining operations, the cause of forfeiture continued and the lessors had the option of declaring it void. The receipt of the rent in the meantime did not affect this right, and the only way that the lessee could prevent the lessors from annulling the lease was to observe the contract on his part and prosecute mining operations with the diligence contemplated by the agreement.

The appellants in this case have no equity to support their position. It tends to obstruct and prevent the development of the mineral resources of the state. The lessee is not acting in good faith in not proceeding to prosecute mining operations as was contemplated by both parties when they executed the lease. In Munroe v. Armstrong, 96 Pa. 307, an ejectment to enforce a forfeiture-bearing clause in a lease, this court said (p. 310): “ Holding on to a lease after ceasing search is often for purposes of speculation, the thing which a prudent landowner guards against. Forfeiture for non-development or delay is essential to private and public interests in relation to the use and alienation of property. In such cases as this equity follows the law. In general, equity abhors a forfeiture, but not when it works equity and protects a landowner from the laches of a lessee whose lease is of no value until developed, except for a purpose foreign to the agreement.” In the recent case of Steelsmith v. Gartlan, 44 L. R. A. 107, the supreme court of West Virginia, in disposing of a controversy over a lease, quotes with approval this language of Munroe v. Armstrong. In discussing the conduct of a lessee in a mining lease, the court of appeals of New York in Genet v. Delaware and Hudson Canal Company, 19 L. R. A. 127, said (p. 133): The conduct of the defendant has been entirely subversive of the spirit of the contract, and of the object and purpose for which it was entered into. The execution of the contract in good faith ivas fully contemplated. The defendants have acted as if a minimum rent was in the nature of an annual bonus paid to the plaintiffs merely to keep the property out of the market, or to prevent it falling into the hands of a rival. They certainly have no right to make any such use of the contract, as that would be to ignore its essence and destroy its life.”

The remarks of the court in the cases cited are pertinent to the facts of the case in hand. The learned trial judge correctly interpreted the lease involved in this suit, and committed no error in directing a verdict for the plaintiffs.

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

Elkin, J., dissents.


author: Per Curiam,

text:
    Sacchetti, Appellant, v. Fehr.

      Libel — Plea—Justification—Measure of proof — Evidence—Charge— Act of April 11, 1901, P. L. 74.
    Where a plea of justification has been entered in an action for libel, the burden is on the defendant to satisfy the jury by his evidence that the publication was substantially true in every material respect, but he is not required to produce proof that would establish the guilt of the plaintiff beyond a reasonable doubt, and that would warrant his conviction in a criminal court.
    Under the Act of April 11, 1901, sec. 2, P. L. 74, proof “to the satisfaction of the jury as in other cases ” means proof as in other civil cases by a preponderance of evidence.
    Argued March 11, 1907.
    Appeal, No. 222, Jan. T., 1906, by plaintiff, from judgment of C. P. Northampton Co., Dec. T., 1904, No. 41, on verdict for defendant in. case of Onofrio Sacchetti v. Oliver L. Fehr.
    April 1, 1907:
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass for libel. Before Scott, J.
    The opinion of the Supreme Court states the case.
    The court charged in part as follows:
    [He is not required to produce a measure of proof to satisfy you beyond a reasonable doubt that would be sufficient to convict this plaintiff of a criminal offense, if it did charge a criminal offense under the statute, if he were upon trial in a criminal court; he must satisfy you by the weight of the evidence.] [1]
    [If you find that the defendant has satisfied you by the full measure of proof, as I have described it, then that ends this controversy, and your verdict must be for the defendant.] [2]
    Yerdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were above instructions, quoting them.

      George W. Geiser, for appellant.
    The court should have instructed the jury that evidence of the same strength was necessary as would convict the plaintiff in a criminal prosecution for perjury, and also what constituted such evidence: Steinman v. McWilliams, 6 Pa. 170; Burford v. Wible, 32 Pa. 95; Gorman v. Sutton, 32 Pa. 247.

      E. J. Fox, with him J. W. Fox, for appellee.
   Per Curiam,

The single question raised by the assignments of error relates to the measure of proof required to sustain a plea of justification in an action for libel. The instruction by the learned trial judge to the jury was that the burden was on the defendant to satisfy them by the evidence that the publication was substantially true in every material respect, but that he was not required to produce proof that would establish the guilt of the plaintiff beyond a reasonable doubt and that would warrant his conviction in a criminal court. Section 2 of the Act of April 11, 1901, P. L. 74 provides that: “ In all civil actions for libel the plea of justification shall be accepted as an adequate and complete defense, when it is pleaded and proved to the satisfaction of the jury as in other cases, that the publication is substantially true and is proper for public information or investigation, and has not been maliciously or negligently made.” Proof to the satisfaction of the jury “as in other cases ” means proof as in other civil cases by a preponderance of evidence, and whatever the rule may have been before, that is the measure of proof now required.

The judgment is affirmed.


text:
    McAuley, Appellant v. Chaplin-Fulton Manufacturing Company.

      Patents — Infringement—Automatic water feeder for boilers.

    The Louis B. Fulton Patent No. 662488, dated November 27, 1900, for an improvement in water regulators for boilers, having for its object the automatic control of the feed water supply for a boiler, is a new invention, and not an infringement of the “McAuley-Fulton” patent dated November 12, 1895, No. 549877, for an automatic water feeder, for boilers, the operation of which is controlled by the water in the boiler whereby the appliance is automatically set in operation upon the water in the boiler falling below low-water mark, and stopped when a proper supply of water has been obtained.
    Argued March 12, 1907.
    Appeal, No. 178, Oct. T., 1906, by plaintiff, from decree of C. P. No. 2, Allegheny Co., April Term, 1903, No. 875, on bill in equity in case of Robert G. McAuley v. The Chaplin-Fulton Manufacturing Company, a corporation, and Louis B. Fulton.
    Before Full, Brown, Mestbbzat, Potter and Elkin, JJ.
    Affirmed.
    Bill in equity for a,n injunction.
    Frazer, P. J., filed the following opinion:
    The purpose of this bill is to secure an accounting for royalties upon the sale of boiler feeders manufactured and sold by defendant company under patents in which plaintiff claimed to have an interest. From the bill, answer and proofs we find the following facts:
    FINDING^ OF FACTS.
    1. In generating steam the water in the boiler is constantly varying within certain vertical limits. For the purpose of periodically renewing and providing a supply of water, numerous appliances have been patented, both in this and in foreign countries, for automatically controlling the flow of water into the boiler. These devices are not new to the art, and all are to a greater or lesser extent constructed on the same principle.
    2. Plaintiff and the defendant, Louis B. Fulton, are the joint inventors of an automatic .water feeder for boilers, the operation of which is controlled by the water in the boiler, whereby the appliance is automatically set in operation upon the water in the boiler falling below low-water mark, and stopped when a proper supply of water has been obtained, the invention being covered by letters patent of the United States, dated November 12, 1885, and numbered 549877, which letters patent were subsequently assigned to the Chaplin-Fulton Manufacturing Company in accordance with an agreement between plaintiff and defendants, dated August 19, 1895.
    3. The agreement referred to in the preceding finding provides for the assignment by McAuley and Fulton to the Chaplin-Fulton Manufacturing Company of the letters patent for the boiler feeder when granted. And in consideration therefor the Chaplin-Fulton Manufacturing Company agrees to pay McAuley and Fulton a royalty of $4.00 on each and every boiler feeder made and sold by it. It is further provided that in the event of the Chaplin-Fulton Manufacturing Company discontinuing the manufacture of such feeders for a period of more than twelve months, or failing to pay the royalties provided for within sixty days after the same became due and payable, “ the entire right, title and interest in and to said invention and Letters Patent is to revert to the parties of the first part (McAuley and Fulton), and in that event the party of the second part (the Chaplin-Fulton Mfg. Co.) agrees to re-convey to said parties of the first part all of said right, title and interest.” And it is further provided in clause five of the agreement as follows: “ The parties of the first part agree, jointly and severally, to assign to the party of the second part any and all interest in .and to any improvements that they or either of them may at any time make on said invention, the same to be included within the terms of this agreement.”
    4. Subsequent to the granting of the letters patent above referred to, the Chaplin-Fulton Manufacturing Company began the manufacture of boiler feeders in accordance with such letters patent and continued to do so until March, 1901, about 123 feeders in all being manufactured and sold by defendant company, at an average price of $100 each, upon which plaintiff is entitled to royalties.
    5. On November 6, 1897, Louis B. Fulton, one of the defendants, filed his application for letters patent for an improvement in water regulators for boilers, having for its object the automatic control of the feed water supply to a boiler, and received from the United States government letters patent, dated November 27, 1900, and numbered 662488, which letters patent were duly assigned by him to defendant company.
    6. Defendant company, since such assignment to it by Louis B. Fulton, has been engaged in the manufacture and sale of feed water regulators under the letters patent assigned to it by him, and is still engaged in manufacturing and selling the same. The water regulators manufactured under the patent of Louis B. Fulton are less complicated than those manufactured under the patent of McAuley and Fulton, and are much cheaper, the average price for which the same are sold being about $75.00 each. Under these letters patent a large number of feeders have been manufactured and sold and are now in use throughout the country.
    7. The McAuley-Fulton invention provides an automatic feeder, the operation of which is controlled by the water in the boiler, whereby it will be automatically set in motion as soon as the water in the boiler falls below the low-water mark and stops when the proper supply has been, obtained! In the operation of making steam and the necessary periodical renewal of the water in the boiler, the water level is constantly varying within certain prescribed vertical limits. The surface of the water in the boiler being turbulent and foaming, to secure a quiet water level, connection is made with, a water column, located outside the boiler, the water column being connected below with the water in the boiler, and above with the steam therein. The water supply to the boiler is effected through an intermittently operating injector or pump or other flow device controlled by the machine of the patent. The machine is designed to operate valves which control a steam supply a,nd exhaust to and from the flow device, so that when the water of the boiler falls to .the low level the flow device will operate, and when the water in the boiler rises to the high level the flow device will stop operating. This valve mechanism is actuated by a pivoted tilting lever arranged to make striking or abutting contact with the projecting valve stem.
    The pivoted lever is counterweighted at one end and is provided at the other end with a water-actuated body, the weight of which is variable owing to the presence or absence of water, at high or low level. The water-actuated body is a hollow sphere and communicates through the hollow arm of the lever which supports it, with a tube which leads down to the low-water level in the water column. When the bottom of this tube is uncovered by the falling water in the column, steam forces the water out of the hollow water-actuated sphere, thus decreasing its weight so that the counterweight at the other end will tilt the lever and actuate the valve to set the water flow device into operation. When the bottom of the tube is covered by the rising water in the column, steam in the tube and hollow sphere condenses, causing a partial vacuum, and the steam pressure in the upper part of the water column forces water through and around the tube and into the sphere, increasing its weight and overbalancing the counterweight at the opposite end, causing it to tilt in the opposite direction to effect reverse operation of the valve mechanism, by which the water flow device is stopped. To facilitate quick filling and emptying of the water-actuated sphere, the hollow arm of the lever communicates downwardly with a partitioned chamber in the water column, the water being always subject to the same conditions of level and steam pressure existing in the water column and boiler. To facilitate free exhaust of steam from the water flow device, a secondary relief valve is arranged at the other side of the lever bearing and is actuated by the tilting lever alternately with the pressure valve. To ensure quick and prompt operation of emptying the water-actuated sphere, it is located at a considerable height above the normal water level in the water column and boiler.
    8. In the Fulton invention a casing having an interior chamber is mounted on top of a water column and connects at its bottom with the latter, at a point beneath the water level therein, through a pipe, and at its top through another pipe which opens into the column at what is normally the level of the water in the boiler. Within the vessel is located a displacement body, which may bo composed of a block of wood or any other suitable material. This displacement body is mounted on the end of a lever which is fulcrumed on the lateral extension of a vessel, and the outer arm of such lever is provided with a counterbalancing weight. To the upper portion of this vessel is secured the casing of a valve which is unseated when the vessel is filled with water, being hold from its seat by steam pressure entering the casing through a pipe. Steam so entering the casing will pass through the pipe to and above the diaphragm of the pressure or controlling valve, which latter is unseated when the pressure is cut off through a pipe by the seating of another valve, such controlling valve being opened by pressure against its under side. When the water in the boiler lowers beneath the end of the pipe which extends into the boiler, steam will pass through such pipe into the upper part of the casing, causing the water therein to flow back to the boiler or water column through a pipe, the displacement body in its descent serving to aid the outflow of the water from the casing. Thereupon the fingers of a lever, acting on the extension, will force a valve to its seat so as to cut off the admission of steam pressure, allowing a valve to be unseated by the combined action of pressure against its under side and a spring. Thereupon water will be supplied to the boiler and when the proper quantity has been obtained the lower end of the pipe which extends into the boiler will be submerged, thereby entrapping the steam in the chamber, and such steam being condensed, water will rise in the casing, and the impetus thereof, together with the agency of the counterbalancing weight, will cause the elevation of the displacement body, and consequently the tilting of the lever. The pressure of the finger being relieved from the extension, a valve will be automatically unseated by the steam pressure, allowing the latter to pass from the casing through a pipe to the diaphragm of a valve, effecting the seating of the latter, and the cutting off of steam to the injector and stopping the flow of water into the boiler.
    9. While the two machines perform the same duty, they are dissimilar in appearance and materially different in construction and operation. In the Fulton device the lever is operated by the presence and absence of water, not within, but at the outside of the operating device, whereas, in the McAuley-Fulton invention and all previous structures of the kind called to our attention, the lever is operated by the presence and absence of water introduced into a hollow shell or body forming part of the lever or mounted on one end thereof, the water being emptied by the introduction of steam into such hollow body or enlarged end of a pipe leading directly to the latter. In all constructions previous to the Fulton device the only agency for affecting the tilting of the lever was the supplying and discharging of water into the lever itself. In the Fulton appliance, a body suspended from a solid lever and located in a stationary vessel into which water is alternately supplied and emptied, is employed as the means of putting the appliance into operation, the operation of the Fulton feeder being the reverse of the McAuley-Fulton device.
    10. While the McAuley-Fulton device and the Fulton device are quite dissimilar in appearance, construction and arrangement, both are operated by the same force differently applied, and both accomplish the same purpose.
    11. In accordance with the terms of the contract of August 19, 1895, defendant company bestowed good workmanship on the McAuley-Fulton device manufactured by it, and in good faith endeavored to introduce the invention into general use and promote its sale, and no feeders were manufactured by it in accordance with the Fulton letters patent until there was no longer any sale for the McAuley-Fulton device.
    12. Defendant company at the trial tendered complainant and Louis B. Fulton a reassignment of the McAuley-Fulton patent as provided for in tbe agreement of August 19, 1895.

      CONCLUSIONS OF LAW.
    The sole question here is whether the Fulton machine is a new invention or an improvement to the McAuley-Fulton machine. If the former, this bill must be dismissed; if the latter, plaintiff is entitled to an accounting. Robinson on Patents, sec. 210, defines an improvement to be “ an addition to or alteration in some existing means, which increases its efficiency without destroying its identity,” and in section 213, “ But inasmuch as no improvement can subsist without an original on which to rest, this development must always leave the essence of the original invention unimpaired. Whenever, in extending the efficiency of an idea of means, the line which separates that means from every other is crossed, through any change in its essential characteristics, identity is lost, the idea of the original invention is excluded, and the result of the inventive act becomes a new and substantive invention,” and again in section 215, “ If the changes indicate the introduction in the idea of means of a different force, a different object, or a different mode of application, it is more than a change of form, more even than an improvement, it is a separate invention.” In determining what is and what is not an improvement, it seems to be the policy of the courts in passing upon contracts to assign improvements to construe such contracts so as to cover only improvements in the particular patent or machine which forms the immediate subject-matter of the assignment. In Independent Electric Co. v. Jeffrey Mfg. Co., 76 Fed. Repr. 981, the court construed a contract to assign improvements, much more comprehensive in its terms than the one before us, to include only improvements upon the particular machine secured by the patent, and said, “ To hold that the assignment in question would pass all of Leckner’s future mining machine patents, would, as counsel for complainant suggests, be equivalent to holding that these two assignments constituted, in fact, a mortgage on Leckner’s brain, to bind all his future products, which is exactly the thing objected to by the court in Mfg. Co. v. Gill, 32 Fed. Repr. 697. In that case, Justice Bradley made it clear that under the rule in Littlefield v. Perry, 88 U. S. 205, only improvements on the particular machine secured by the patent would pass by an assignment of a patent with future improvements.” Other cases to the same effect might be cited. While the Me Auley-F ul ton machine and the Fulton machine are intended to perform the same duty, that fact alone does not make the latter device merely an improvement on the former. These devices are constructed upon entirely different lines; they are dissimilar in appearance, and in the Fulton machine the force putting the device into operation is applied in a manner different from all previous constructions of the kind. In machines constructed previous to the Fulton device, the lever was operated by the presence or absence of water on the outside and not within. In the construction of his machine, Mr. Fulton ignored this idea and was the first inventor to introduce into feed water regulators the principle of employing a body suspended from a solid lever and located in a stationary vessel into which water is alternately supplied and emptied, the displacement body having no interior communication and its own weight being always the same. In the Mc-Auley-Fulton invention there is a lever, one arm of which is hollow, carrying a sphere at its outer end, -which sphere communicates with the interior of the boiler, the emptying of water being effected by the introduction of steam through a pipe which passes through the hollow arm and opens into the sphere. In the Fulton invention the lever has no hollow arm, the hollow sphere being connected through a hollow arm with the interior of the boiler and no steam pipe passing through an arm of the lever into the sphere. The water never enters the displacement body or the float. The latter lowers by-its own weight. When water is passing through the chamber it is elevated by the buoyancy of the water, coupled with condensation of steam under the chamber wherein it is located. The lever cannot, under any interpretation of the scope of the invention of McAuley and Fulton, be construed as a McAuley-Fulton lever or as operating on the same principle. If the water -were introduced into and discharged from the displacement body or float, and the latter connected through the hollow arm of the lever with the interior of the boiler it might be an equivalent, but instead, the lever and displacement body of the Fulton invention are so radically different from the McAulej^-Fulton invention as, in our opinion, to constitute a new invention in the art, operating on a different' principle and not in any way dependent upon the employment of a hollow lever 'having a sphere at one end connecting with the interior of the boiler. To hold the Fulton invention to be an equivalent of the MeAuley-Fulton machine would, in our opinion, be contrary to the principle laid down in Electric Co. v. Jeffrey Mfg. Co. and Mfg. Co. v. Gill, above referred to.
    April 1, 1907:
    After considering all the evidence in the case, together with the construction and operation of the two machines, we are of opinion that the Fulton machine is a new invention and not an improvement upon the McAuley-Fulton device; that the “ essential characteristics ” of the former are different from those of the latter; that the Fulton device could not be applied to the McAide/’-Fulton appliance “ without destroying its identity.” We, therefore, conclude that plaintiff is not entitled to an accounting on account of machines manufactured and sold under the Fulton device. The bill is, therefore, dismissed at his costs.
    Let a decree be drawn accordingly.

      Error assigned was decree dismissing the bill.

      Charles M. Clarice, with him W. H. McQlung, for appellant.

      J. Nota Me Gill, with him J. 8. Ferguson, for appellees.
   Per Curiam,

The decree dismissing the bill is affirmed at the cost of the appellant on the findings of fact and the conclusions of law of the learned judge of the common pleas.


text:
    Xander v. Easton Trust Company, Appellant.

      Will — Devise—Life estate — Rule in Shelley’s case — Children.
    Testator divided his estate into five equal shares, and gave his son C. one equal share “which said one equal share shall be invested by my hereinafter named executors, who shall pay the annual interest or income arising therefrom, to my said son C., and upon his death divide it among the children of the said C. share and share alike.” Held, that the son took a life estate only.

      Argued March 13, 1907.
    Appeal, No. 399, Jan. T., 1906, by defendants, from judgment of C. P. Northampton Co., Nov. Term, 1906, No. 93, on case stated in suit of George L. Xander, Administrator d. b. n. c. t. a. of Samuel Hayden, deceased, v. The Easton Trust Company, Trustee of Cornelius ITayden, and Edward Dreyfus, Executor of Cornelius Hayden, deceased, Nellie A. Lochman and Harry E. Hayden, Legatees and Intervenors.
    Before Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Case stated to determine the title to real estate. Scott, J., filed the following opinion:
    The single question for decision here is whether Cornelius Hayden was invested with an absolute estate, devised by his father in the paragraph of the will, a copy of which follows, viz.:
    “ The rest and remainder of my estate, real, personal and mixed of whatever nature and kind the same may be, I give, devise and bequeath unto my children and grandchildren in manner as follows, to wit: The same to be divided into five equal shares of which my son Howard A. Hayden shall receive one equal share; my son' George W. ^Hayden one equal share; my son Cornelius Hayden one equal share, which said one equal share shall be invested by my hereinafter named executor, who shall pay the annual interest or income arising therefrom to my said son Cornelius Hayden and upon his death divide it among the children of the said Cornelius Hadyen share and share alike; one of said equal parts of my estate as aforesaid divided between my son Edward Hayden and his son Harry Hayden in the manner following, to wit: three-fourths of the said equal share to my son Edward Hayden and one-fourth of said one equal share to his son Harry Hayden; the remaining one-fifth equal share of my estate as aforesaid to be divided share and share alike among Cora Hayden, Daniel Hayden and Nina Hayden, the three youngest children of my deceased son Daniel Hayden; in case any of the said three grandchildren should be dead at the time of my decease, then the share or shares of such deceased grandchild or grandchildren is to be divided equally between the survivor or survivors of them ; in case any of the said three grandchildren should die after my decease, then the part or share of such deceased grandchild or grandchildren shall go to the survivor or survivors of the three; in case all three of the children aforesaid, to wit: the children of my deceased son Daniel should die without lawful heirs, then in that case the part or share of my estate that went to such child or children, shall revert to my estate and be divided equally among my sons Howard A., George W., Edward and Cornelius, share and share alike forever.”
    Under the stipulation filed and upon the statement of facts therein contained, judgment is to be entered for the plaintiff, as administrator d. b. n. with will annexed of Samuel Hayden, deceased, if Cornelius Hayden had but a life estate; otherwise for defendants.
    If it be conceded, notwithstanding the primary and technical meaning attached to the word “ children ” as one of purchase (Pifer v. Locke, 205 Pa. 616), that it was cleai’ly the intention of the testator the remainder-man should take by descent from the donee as “ heirs of the body; ” that the devise would thus in ordinary cases become absolute by the operation of the rule in Shelley’s case (Haldeman v. Haldeman, 40 Pa. 29; Yarnall’s Appeal, 70 Pa. 335; Simpson v. Read, 205 Pa. 53; Vilsack’s Estate, 207 Pa.. 611); that this testamentary purpose is apparent from the will itself beyond all doubt (Guthrie’s Appeal, 37 Pa. 9; Oyster v. Oyster, 100 Pa. 538); that the provision for division over distributively as tenants in common, but without superadded words of limitation, does not so support the original presumption of taking by purchase that an intent otherwise may still be patently implied (Guthrie’s Appeal, 37 Pa. 9; Haldeman v. Haldeman, 40 Pa. 29; Physick’s Appeal, 50 Pa. 128; Ogden’s App., 70 Pa. 501) all of which is not too certain, yet there is a serious obstacle in the path of the contention that the estate of Cornelius became absolute.
    The rule in Shelley’s case cannot be applied unless the estate of the life tenant and that of those in remainder are the same quality ; both must be equitable or both legal. If there be an active trust for the former, with remainder over of the legal estate, they will not unite: Rife v. Geyer, 59 Pa. 393; Little v. Wilcox, 119 Pa. 439; Eshbach’s Estate, 197 Pa. 153; nor if there be a special trust to preserve contingent interests.

      The residuary estate of the testator is divided into five equal shares, one of which the devisee was to receive, but “ which said one equal share shall be invested by my hereinafter named executor, who shall pay the annual interest or income arising therefrom to my said son Cornelius Hayden, and upon his death ” divide it share and share alike among his children.
    The son was unmarried and childless at the time of testator’s death: Act of June 4, 1879, P. L. 88. There was a contingent remainder in fee of the legal estate: Keller et al. v. Lees et al., 176 Pa. 402.
    The interest of Cornelius was not devised expressly to the executors, or any third person in trust for him, but the intention to withhold the corpus, by the direction for his executors to invest and pay over the annual income, is plain: Livezey’s Appeal, 106 Pa. 201; Craige’s Est., 12 Phila. 163. It was not to be indefinite in duration. The purpose to give him but a fife estate in this one share is manifest enough from the limitation over. The rule in Shelley’s case cannot be applied to discover an intention: Guthrie’s Appeal, 37 Pa. 9. The fact that he had a contingent, absolute, undivided interest in the share devised to the children of another brother is immaterial to the present subject-matter of dispute.
    It is not necessary that a trustee should be named in the will eo nomine. The duties imposed upon the executor are the incidents of a trust and not functions of his in administration upon the decedent’s estate: Sheets’s Estate, 52 Pa. 257; Anck’s Estate, 11 Phila. 118.
    The trust herein created cannot be treated as executed in the life tenant for two reasons. It protects the estate in remainder, and the trustee is required to exercise judgment and discretion respecting investments. The line of authorities upon these propositions are summarized by Judge Ashman in Hemphill’s Estate, 180 Pa. 95. He was affirmed, per curiam, upon his “ concise and satisfactory opinion,” and I need not refer to other cases. “The automatic function,” said the learned judge, “ of merely receiving for the cestqui que trust, and immediately paying over to him the trust fund, or its in-home, will not make a trust active.” For this reason, in Haldeman v. Haldeman, 40 Pa. 29, where the question seems to have been suggested although the reporter does not state it, it was held that no such trust was created by the terms of that will, as would prevent the operation of Shelley’s rule. In some of the other cases involving not dissimilar conditions the matter was not discussed nor decided.
    April 1, 1907:
    But it may be taken as settled, that if there is a testamentary direction to “ invest ” the corpus of an estate and pay over the income, an active trust is established : Keene’s Estate, 81 Pa. 133; Estate of Mary Ann Craige, 12 Phila. 163 and cases cited. The same result follows in bequests of personalty: Eichelberger’s Estate, 135 Pa. 160. As it is presumed no intestacy is intended, that construction is to be adopted, if possible, which will avoid it. But sometimes it is inadmissible and forbidden.
    The exceedingly able argument of the counsel who appeared for the parties intervening has not convinced me that his contention can be sustained.
    Now, December 10, 1906, judgment is directed to be entered for the plaintiff on the case stated and against the defendant for $4,167.30.

      Error assigned was the judgment of the court.

      Robert E. James, Jr., for intervenors, appellants.

      Edward J. Fox, for defendant, appellant.

      O. II. Meyers and George L. Xander, for appellee, were not heard.
   Per Curiam,

The judgment entered in this case is affirmed for the reason stated in the opinion of the learned judge of the common pleas.


text:
    Wehr v. Carbon County Electric Railway Company, Appellant.
    April 1, 1907:

      Negligence — Street railways — Death—Fright of horse — Case for jury.

    In an action against a street railway company to recover damages for death of plaintiff’s husband, it appeared that the deceased was struck and killed by a car while endeavoring to control and lead his horse from the track. The horse was gentle, accustomed to steam and trolley cars, and had not before been known to frighten at either. There was evidence that when the horse turned on to the track, the car was over seventy feet from it, and it could have been stopped within twenty-five feet, and that the motorman was not at his post on the front platform, but was in the middle of the car. Held, that the case was for the jury, and that a verdict and judgment for plaintiff should be sustained.
    Argued March 13, 1907.
    Appeal, No. 83, Jan. T., 1907, by defendant, from judgment of C. P. Carbon Co., April T., 1901, No. 32, on verdict for plaintiff in case of Emma Jane Wehr v. Carbon County Electric Railway Company.
    Before Fell, Bbown, Mestbezat, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Staples, P. J.
    The facts appear by the opinion of the Supreme Court.
    Yerdict and judgment for plaintiff for $2,950. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Frederick Bertolette, with him W. W. Watson, for appellant.

      E. O. Efothstevn, with him William G. Freymam,, for appel lee.
   Per Curiam,

The husband of the plaintiff was killed under these circumstances. He went from his home to- Mauch Chunk with a wagon, load of vegetables to sell. While his horse and wagon were standing on a borough street between the curb and the car track and he was at the rear of the wagon talking to purchasers, a car approached in front. His attention was called to the car by his son, seven years of age, who was seated in the front part of the wagon. He went to the horse’s head and took hold of the bridle. The horse was alarmed by the noise of the car and turned onto the track. While endeavoring to control the horse and lead him from the track, the deceased was struck by the car. The horse was gentle, accustomed to steam and trolley cars, and had not before been known to frighten at either. The questions in the case were whether the death was the result of an unavoidable accident caused by the horse’s sudden turning onto the track in front of the car, or whether it resulted from the negligence of the motorman in not exercising vigilance and care in the management of the car. Since there was evidence tending to show that when the horse turned onto the track the oar ivas over seventy feet from it, and could have been stopped within twenty-five feet, and that the motorman was not at his post on the front platform but was in the middle of the car, the case was necessarily for the jury.

The j udgment is affirmed.