text:
    McGregor v. Pennsylvania Railroad Company, Appellant.

      Negligence—Railroads—Safety appliances—Master and, servant.

    In an action against a railroad company to recover damages for the death of an employee, the company cannot be convicted of negligence in failing to provide automatic signals in its yard, where there is nothing in the testimony to show that the system of signals provided and the appliances for the switching of cars and making- up of trains in the yard, were not such as were in ordinary use by railroads for such purposes, or that they were dangerous and unsafe.
    To impose such a standard of care as requires, in the ordinary affairs of life, precaution on the part of individuals against all the possibilities which may occur, is establishing a degree of responsibility quite beyond any legal limitations which have yet been declared.
    Argued April 20, 1905.
    Appeal, No. 107, Jan. T., 1905, by defendant, from judgment of C. P. Huntingdon Co., May T., 1900, No. 1, on verdict for plaintiff in case of Laura McGregor v. Pennsylvania Railroad Company.
    Before Dean, Brown, Mbstrezat, Potter and Elkin, JJ.
    Reversed.
    Trespass to recover damages for death of plaintiff’s husband. Before Bell, P. J., specially presiding.
    At the trial it appeared that on November 8,1899, plaintiff’s husband, H. R. McGregor, a freight brakeman, was killed in the defendant’s yards in the city of Altoona. The accident was the result of a collision between a freight car and the bumper of an engine. The deceased was on the freight car at the time. It was claimed that the defendant was negligent in not providing an automatic system of signals. Other facts appear by the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $4,000. Defendant appealed.

      Error assigned amongst others was in entering judgment on the verdict.

      John D. Dorris, for appellant.
    The legal test of reasonable safety in machinery or methods is ordinary use, and a jury cam not be permitted to set up any other: Leonard v. Herrmann, 195 Pa. 222; Peterson v. Penna. R. R. Co., 195 Pa. 494; Higgins v. Fanning & Co., 195 Pa. 599; Lehigh, etc., Coal Co. v. Hayes, 128 Pa. 294; Kennelty v. R. R. Co., 166 Pa. 60.

      W. 0. Fletcher, with him W. M. Henderson, for appellee.—•
    Negligence is always for the jury where there are any doubts as to the facts, or as to the inferences to be drawn from them: Whitman v. Pennsylvania Railroad Company, 156 Pa. 175; Smith v. B. & O. R. R. Co., 158 Pa. 82; Bannon v. Lutz, 158 Pa. 166.
    That the switching of heavily loaded trains is a dangerous practice is undisputed. The deceased assumed this risk providing his employer exercised such care and caution as the nature of the work required. As a brakeman, he had nothing to do with the system of switches or signals in the yard and he assumed no risk growing out of their defects: Bannon v. Lutz, 158 Pa. 166; Patterson v. Pittsburg, etc., R. R. Company, 76 Pa. 389; Kehler v. Schwenk, 151 Pa. 505; Patterson v. Pittsburg Railroad Company, 76 Pa. 389; Lewis v. Seifert, 116 Pa. 628; Abel v. Del. & Hudson Canal Co., 128 N. Y. 662 (28 N. E. Repr. 663); Davis v. Snyder Twp., 196 Pa. 273; Kay v. R. R. Co., 65 Pa. 269; Tissue v. R. R. Co., 112 Pa. 91; Penna. & N. Y. Canal & R. R. Co. v. Mason, 109 Pa. 296.
    The concurrence of an ordinary event which should have been foreseen by the defendant will not relieve it: Wood v. Penna. R. R. Co., 177 Pa. 306; Coppins v. R. R. Co., 122 N. Y. 557 (25 N. E. Repr. 915); Grand Trunk Ry. Co. v. Cummings, 106 U. S. 700 (1 Sup. Ct. Repr. 493).
    June 22, 1905:
   Opinion by

Mb. Justice Elkin,

No matter how distressing the accident, or unfortunate the circumstances surrounding the death of the decedent, who was the'husband of the plaintiff and the employee of the appellant, there can be no recovery of damages unless the death was the result of negligence on the part of the defendant company. The learned trial judge entertained some doubt about the liability of the defendant in this action, which is evidenced by the reservation of the following questions, with the right to enter judgment non obstante veredicto: “ First, is there any evidence of negligence on the part of the defendant company which would warrant the judgment in favor of the plaintiff. Second, under the undisputed evidence, was not the negligence of either Mr. Allaway, the switchman, or Mr. Chase, the engineer, who were fellow servants of the decedent, proximately the cause of the accident. Third, was not the cause of the accident one of the risks the decedent assumed when he engaged as brakeman dropping down trains through the yard of the Pennsylvania Railroad in Altoona.”

In passing upon the reserved questions, the trial judge, among other things, said: “ But even assuming that said engineer and said switchman, who were fellow employees of said decedent brakeman, were guilty of negligence, was it not a question for the jury as to whether there was not negligence on the part of the railroad company.”

After a careful consideration of the case, and an exhaustive examination of the testimony, we are of opinion that there was no evidence of negligence by the defendant and that the learned court erred in not so ruling. It is suggested by the court and bjr the learned counsel for appellee that automatic signals should have been provided, but the evidence does not justify such a conclusion. There is nothing in the testimony to show that the system of signals provided by the railroad company, and the appliances for the switching of cars and making up of trains in the yard were not such as were in ordinary use by railroads for such purposes, or that they were dangerous or unsafe.

. .Something has been said about the failure of the defendant company to establish a.system of rules for employees in and about the yard. The testimony in this respect is meager and unsatisfactory, although one of the witnesses said there was a book of rules regulating these matters. It is clear, however, that the testimony produced by the plaintiff was not sufficient to charge the defendant with negligence in not providing proper rules. There was no evidence in the case either as to rules, appliances or signals that would warrant a jury in finding as a fact that the defendant company ivas negligent in any or all of these respects. It follows, therefore, that there was error in submitting the case to the jury, or after submission, in not entering judgment non obstante veredicto in favor of the defendant.

To permit a recovery in this case would impose upon the defendant a standard of care and responsibility beyond that recognized in any of our cases. As was said by Mr. Justice Green in Southside Passenger Ry. Co. v. Trich, 117 Pa. 390: “ To impose such a standard of care as requires, in the ordinary affairs of life, precaution on the part of individuals against all the possibilities which may occur, is establishing a degree of responsibility quite beyond any legal limitations which have yet been declared.” The appellee having failed to show by testimony negligence on the part of the defendant such as would make it liable in damages, there can be no recovery in this case. This view of the law being fatal to the claim of the plaintiff, it is unnecessary to discuss the question of the decedent’s contributory negligence, or whether the accident was the result of the negligence of fellow servants.

Judgment reversed.


source: Caselaw Access Project

author: Pee Cueiam,

license: Public Domain

text:
    Rockafeller, Appellant, v. Northern Central Railway Company.

      Railways—Road law—Vacation of road—Damages.

    Where a railroad company vacates a road and substitutes another for the one "vacated, it will not be liable in damages to a landowner for the vacation of the original road.
    Argued April 24, 1905.
    Appeal, No. 272, Jan. T., 1905, by plaintiff, from order of C. P. Cumberland Co., Sept. T., 1904, No. 127, discharging rule to appoint viewers in case of Thomas B. Rockafeller v. The Northern Central Railway Company.
    Before Mitchell, C. J., Dean, Fell, Brown and Elkin, JJ.
    Affirmed.
    Petition for the appointment of viewers to assess damages for injuries alleged to have been caused by the vacation of a public road.

      The defendant filed an answer in which it was alleged, inter alia, as follows :
    3. Defendant before closing up any portion of said public roads specified in the plaintiff’s petition caused the said state road to be reconstructed at its own proper expense on the most favorable location, running with same direction and connecting with the other portion thereof, and in as perfect a manner as the former roads had been constructed, as required by the act of assembly of February 19, 1849, after which defendant opened and dedicated said newly constructed road to public use, and the same was adopted as a public road by the supervisors of said township, and was in public use, at and before the filing of the plaintiff’s petition, and ever since said dedication to public use, has been and still is, used as a public road by the traveling public, in place of these portions of the former roads which were closed up by the defendant.
    6. That plaintiff does not in his petition allege any such taking from him by the defendant, of land, buildings, materials, or other property, as entitles him to have viewers appointed to assess his damages for such taking, and defendant avers further that the alleged personal inconvenience of the plaintiff in not having as direct access or as short a route as heretofore by public road to Marysville and other points referred to in his petition, is not such an injury to the lot of ground therein described, as entitles him to the appointment of viewers to assess damages to him therefor; nor is there any other allegation in his petition entitling him to an assessment of damages by viewers.
    The case was heard on petition and answer.
    The court discharged the rule.

      Hrror assigned was the order of the court.

      Wetzel Hambleton, with them R. M. Henderson and J. Webster Henderson, for appellant.

      Nevin M. Wanner, with him Rupley £ Brinton, for appellee.
    June 22, 1905 :
   Pee Cueiam,

The principles governing this class of cases have been fully discussed, in Howell v. Boro. of Morrisville, ante, p. 349. On its material facts this case is not distinguishable from McGee’s Appeal, 114 Pa. 470, which is conclusive against appellant’s claim.

Order affirmed.


author: Mb. Justice Bbown,

text:
    Taylor, Appellant, v. Erie City Passenger Railway Company.

      Street railways—Consent of owner—Estoppel—Equity.

    Where a street railway company has secured the consent of an abutting owner to the location of its railway on a public road, and has constructed its railway, but several years afterwards has been restrained at the instance of the township from unduly extending its switch in front of the consenting owner’s property, the testamentary trustee of the consenting owner cannot, thirteen years after the consent was -given, and nine years after the decree was entered, and several years after the township had waived its right to enforce it, maintain a bill in equity to compel the railway company to remove the switch in question which might have been removed by the' township authorities under the decree in their favor before they waived their right to enforce it.
    Argued April 25, 1905.
    Appeal, No. 114, Jan. T., 1905, by plaintiff, from decree of C. P. Erie Co., Feb. T., 1903, No. 1, dismissing bill in equity in case of Matthew H. Taylor, Charles H. Strong, Richard H. Townsend, Jr., and John W. Little, Trustees of the Real Estate of William L. Scott, deceased, v. The Erie City Passenger Railway Company and Erie Electric Railway Company.
    Before Mitchell, C. J., Dean, Fell, Bbown and Elkin, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Walling, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree dismissing the bill.

      Frank Gunnison, for appellant.
    The appellant may maintain a bill for an injunction for the abatement of an unlawful obstruction: Penna. R. R. Co.’s App., 115 Pa. 514; Thomas v. Ry. Co., 167 Pa. 120.

      The right on the part of an individual injured by the exercise of an unauthorized act by a corporation, is given by the Act of June 19, 1871, P. L. 1360: Edgewood R. R. Co.’s App., 79 Pa. 257; Western Penna. R. R. Co.’s App., 104 Pa. 399; Hopkins v. Mfg. Co., 180 Pa. 199; Trenton Cut-Off R. R. Co. v. Ry. Co., 8 Pa. Dist. Rep. 549; Penna R. R. Co. v. Electric Ry. Co., 152 Pa. 116.

      J. M. Sherwin, with him S. A. Davenport, for appellee.—
    The plaintiffs, aside from all questions as to their standing to avail themselves of the decree in the equity case in which they were not parties, are estopped from questioning the right of defendant to maintain this switch: Cox v. Phila. W. & B. R. R. Co., 10 W. N. C. 552; Hinnershitz v. United Traction Co., 199 Pa. 3; Penna. R. R. Co. v. Montgomery County Pass. Ry. Co., 167 Pa. 62; Potter v. Scranton Traction Co., 176 Pa. 271.
    • Plaintiffs are estopped because they have stood idly by while the defendants have expended in the last three years over $200,000, to equip this line of which this switch is a necessary part: Bradford v. Telephone, etc., Co., 206 Pa. 582.
    Greater injury, both to the company and traveling public, will result from the removal of the switch, than by permitting it to remain : Becker v. Ry. Co., 188 Pa. 484; Heilman v. Ry Co., 180 Pa. 627; Heilman v. Ry. Co., 175 Pa. 188; Rafferty v. Traction Co., 147 Pa. 579; Pottsville v. Ry. Co., 148 Pa. 175.
    The act of 1871, is not called in question, inasmuch as the jurisdiction of the court was not challenged. The case was tried without the question of jurisdiction being raised, and plaintiff has cited no decision whereby the act of 1871 gives to a person, not a party to a decree, a right to enforce such a decree: Becker v. Lebanon etc. Ry. Co., 188 Pa. 484.
    June 22, 1905 :
   Opinion by

Mb. Justice Bbown,

The appellants filed this bill to enjoin the use of a switch and to compel the appellees to remove it. The real estate abutting on the road on which the street-railway is constructed belonged to William L. Scott, deceased, who devised it to the appellants in trust. In 1889, when the appellees constructed their railway, he gave them permission to locate it in front of his property, with the necessary turn-outs. During that year the switch in controversy, known as the “ Blacksmith ” or “ Cemetery ” switch, was constructed and has been used ever since by the appellees as a part of their system, in the improvement of which they have expended a large sum of money. Prior to 1893 they had five switches or sidings between the city of Erie and Trinity cemetery. In that year they began to lengthen the sidings and the authorities of Mill Creek township filed a bill to restrain them from doing so, on the ground that the sidings were to be unnecessarily lengthened and would, if lengthened, practically make a second track on the highway. The decree of the court below, affirmed here, Willis et al. Commissioners of Mill Creek Township, v. The Erie City Passenger Railway Company et al., 188 Pa. 56, prohibited the construction of any siding of a greater length than 360 feet, and directed that, as the switches were relocated and constructed, those supplied by them should be removed.

The “Blacksmith” or “Cemetery” switch was constructed in pursuance of authority expressly given the defendants to construct it by the property owner and the township authorities, and but for the proceeding instituted by the latter in 1893, resulting in the decree stated, the appellants would not be raising the question of the right to continue to use it. In 1889 the owner of the property, whom they represented in 1902, when they filed this bill, had, in writing, granted to the appellees the right “ to occupy and extend their line of railway and the necessary turn-outs ” in front of his premises. This switch is one of these turn-outs. When the appellees, in 1893, were so lengthening their sidings as to practically construct a second track on the public road, the commissioners of Mill Creek township, to prevent the danger of traveling over the road with a second track constructed on it under the guise of sidings, filed a bill to enjoin their construction, and, after a full hearing a decree was made directing that five new ones could be constructed, and that as soon as any of them were relocated and constructed, those which they supplied should be removed. To that proceeding by the township commissioners these appellants were not parties, and they are not in a position to ask for the enforcement of the decree. They allege that the appellees are in contempt of it. This question, however, can be raised only by those who are entitled to enforce it. It was not made for the benefit of any private individual, but for the public in a proceeding by the public authorities, who had the supervision of the highway. After the five switches had been constructed they might have asked for the enforcement of the decree, and, if so, an order would have been made for the removal of the “ Blacksmith ” or “ Cemetery ” switch, as it had been supplied by another. But they could waive the enforcement of the decree, and did so, by formally permitting the defendants to continue the use of the switch, which was found by the court below to be of great value to them in the operation of the railway, of great convenience to the traveling public and occasioning no damage to the appellants. More than four years after the township authorities might have insisted upon a removal of the switch, and more than three years after they had consented to its continuance, the appellants filed this bill. Even if there had not been an express grant from Scott, authorizing the construction of the switch, with no objection to it from him or the present appellants until this bill was filed, equity would not decree its removal after this great lapse of time and the expenditure by the appellees of large sums of money in improving their tracks and system, of which the switch forms a part.

Defendants’ seventh request for a legal finding by the court below was that, as the road commissioners of Mill Creek township, by resolution duly passed June 23, 1899, had given their consent to the continued use of the “ Blacksmith ” switch by the defendants, the construction of which had been duly authorized in writing by William L. Scott, the owner of the adjoining property, and as it had been constructed and remained in the use of the company without objection on the part of the heirs and representatives of Scott from 1889 until this bill was filed, the defendants were entitled to continue to use it in the operation of their railway. In this request the whole situation is presented. The learned judge properly found as requested, and the decree which logically followed his finding is affirmed at appellant’s costs.


author: Mr. Justice Brown,

text:
    Deemer v. Bells Run Railroad Company, Appellant.

      Railroads—Private or public use—Eminent domain—Act of June 19, 1871, P. L. 1360.
    On a bill in equity filed under the Act of June 19, 1871, P. L. 1360, to restrain a railroad company regularly incorporated under the Act of April 4, 1868, P. L. 62, from exercising the right of eminent domain, on the ground that its charter had been obtained solely for a private use, the burden is upon the plaintiff to show clearly that the railroad is being constructed for a private and not a public use. The mere fact that the railroad is being constructed through an undeveloped country whore there are no communities or settlements and no mineral developments is no reason for denying to the company the right to exercise its corporate franchises.
    Argued May 1, 1905.
    Appeal, No. 312, Jan. T., 1904, by defendant, from decree of C. P. E.lk Co., April T., No. 2, awarding preliminary injunction in case of Elias Deemer and John H. Hunt, trading as Elias Deemer & Company, v. Bells Run Railroad Company.
    Before Mitchell, C. J., Dean, Brown, Mestrezat and Potter, JJ.
    Reversed.
    Bill in equity for an injunction. Before Mayer, P. J.
    The opinion of the Supreme Court states the facts.

      Error assigned was the decree of the court.

      Q. La Rue Munson, with him Addison Candor, Brown Stevenson and McCauley $ Whitmore, for appellant.—
    It clearly appears that the defendant has the franchise to enter upon the plaintiffs’ land, and thereon construct and operate its railroad; hence, all further inquiry on behalf of the plaintiffs in this issue is at an end under a well-settled line of authority in this state: Windsor Glass Co. v. Carnegie Co., 204 Pa. 459; Western Penna. R. R. Co.’s App., 104 Pa. 399; Phila. & Merion Ry. Co.’s Petition, 187 Pa. 123; Western N. Y. & Penna. Ry. Co. v. Ry. Co., 193 Pa. 127; Penna. R. R. Co. v. St. Ry. Co., 176 Pa. 559; Rudolph v. R. R. Co., 166 Pa. 430; Gaw v. R. R. Co., 196 Pa. 442; Oliver v. Bridge Co., 197 Pa. 344; Slocum’s App., 12 W. N. C. 84; Dobson v. R. R. Co., 6 Montg. 109; DeCamp v. Hibernia R. R., 47 N. J. 43.

      John Gr. Beading, with him T. G. Hijople and Wm. B. JDeemer, for appellees.
    The bill filed in this case brings it directly within the decision of this court in Edgewood Railroad Co.’s App., 79 Pa. 257.
    The decree was proper: Mory v. Oley Valley Ry. Co., 199 Pa. 152; Kincaid v. Mahoning Valley R. R. Co., 25 Pa. C. C. Rep. 545; Packard v. Thiel College, 209 Pa. 349.
    June 22, 1905 :
   Opinion by

Mr. Justice Brown,

The Bells Run Railroad Company was incorporated under the Act of April 4,1868, P. L. 62. The road to be constructed by it is from a point on the Dent’s Run Railroad, in Elk County, to a point on the Philadelphia and Erie Railroad, in Cameron county, and is about fourteen and one-half miles in length. After the railroad had been constructed to the southern line of the lands of the appellees, and the company had failed to secure a right of way over these lands, it tendered the appellees a bond, in accordance with the act of assembly, to secure the payment of all damages sustained by them in the taking of their land for railroad purposes. They thereupon filed this bill, averring that the charter of the company had been obtained solely for private use and benefit, and not for any public use or for the transportation of persons and property generally, and prayed for a decree that the company be declared not a corporation for a public railroad, that it does not have the right to take the property of the appellees under its alleged right of eminent domain, and that it be restrained from doing so. On the bill and answer and affidavits filed by the respective parties the preliminary injunction prayed for was awarded, from which there is this appeal.

The court below found that the company had complied with all the requirements as to the location of its line, and that the same had been validly located, adding, however, “ But the question raised by this bill is, whether the charter of the defendant company confers upon it the right of eminent domain.” This is not a correct statement of the question involved in this proceeding. If it were, there could be but one answer to it, for the company has clearly conferred upon it the. right of eminent domain. The question is whether, possessing such right, it is attempting to exercise the same for public purposes, or, under cover of it, is attempting to take private property for purely private uses. It possesses no franchise'to take_ private property for a private use, and if it is attempting to do so, this proceeding was properly instituted under the Act of June 19,1871, P. L. 1360.

After the appellant had surveyed and located the route of its road from one terminus to the other, and had completed six miles, up to the line of appellees’ lands, it was halted by them for the reason given. As evidence of its right to continue its road through their lands it presented its letters-patent, authorizing it, upon securing them for damages, to occupy their lands, and this right cannot be interfered with, if it was about to be exercised for the purpose for which it had been conferred. If, on the other hand, under its right of eminent domain, the company is about to take private property, not for a public, but for a private use, the appellees are entitled to relief by injunction to be awarded under the act of June 19, 1871, for the charter of the company cannot be perverted to accomplish objects for which it was not granted. But conferring, as it does, the right of eminent domain upon the appellant, which has surveyed and located the route of its road and built three-sevenths of it, the burden of showing that the company is exercising franchises that it does not possess is upon those alleging that it is attempting to do what it is not authorized to do—'-constructing a railroad for purely private purposes. If this clearly appears, it will be regarded as a perversion of the commonwealth’s charter, which will not be permitted. - In the two cases on which the court below relied as authority for issuing its injunction—MeCandless’s Appeal, 70 Pa. 210, and Edge wood Railroad Company’s Appeal, 79 Pa. 257—this clearly appeared. In the first case we said the railroad was “ clearly intended solely for the use ” of the mill and machinery of Rhodes, and in it “the public could have no advantage whatever.” In the second it was clear that the road was intended to carry the coal of the Hampton company, and “ nothing else.” Does it clearly appear that this road is to serve only a private use ?

The averment of the bill that the appellant was incorporated for private use, and is not intended for any public use, or for the transportation of persons and property generally over the road, is met not only with a denial in the answer, but with the distinct averment, “ The company was incorporated for the purpose of constructing, maintaining and operating their railroad for public use in the conveyance of persons and property.” Two of the seven affidavits filed by the plaintiffs were' made by Elias Deemer and John H. Hunt, the plaintiffs, and are but a reiteration of wbat appears in their bill. In no one of the other five is there a distinct averment that the railroad is not intended for public use. In the affidavit of John Morgan there is an averment “ that there are no villages, communities or settlements along the proposed line of said Bells Run Railroad, and no mineral developments to the best of deponent’s information and belief; that it is a country yet to be opened up and developed, and, as deponent believes, there is no occasion there for other than a logging railroad for lumbering purposes.” The other affidavits filed by the plaintiffs are devoted chiefly to the injury they will suffer by the construction of the railroad through their lands. They themselves aver that they object to this or any other railroad going through them. Ten affidavits were filed by the defendant. Among them, those of William Emery, George B. Merrill and John C. Merrill aver distinctly that the charter for the road had been obtained solely and entirely for public use and for the general transportation of persons and property. These three affidavits, taken in connection with the other seven filed by the defendant, ought to have prevented a finding by the court that the railroad company was clearly taking private property for private use; and without such a finding the right of eminent domain, clearly conferred upon the appellant, is not to be swept away. There is no presumption that it is abusing its charter, or that, under cover of the same, it is attempting to exercise franchises which it does not possess. The presumption is otherwise. It is authorized to locate and build a railroad and, in doing so, to take private property for its public purpose. It has located and is building a railroad, but is stopped by the learned court below because the evidence shows “ that the territory between the Dent’s Run Railroad and tlie Philadelphia and Erie Railroad, along the proposed location of said Bells Run Railroad, is unimproved land and consists chiefly of timber land and land from which the timber lias been more or less cut; that there are no villages, communities or settlements along said proposed line of the Bells Run Railroad and no mineral development; there are no stations at the termini of the said railroad and there will be no passengers to convey upon it.” This is a strange reason for denying to the appellant the right to exercise its corporate franchises. To develop undeveloped regions is one of the objects to be attained by railroads, and the tracks of many of them have first been laid in the wilderness. In time there are settlements along them, villages appear and stations are established as needed. What development may result from the construction of this railroad remains to he seen, but one of its corporate rights is the right to try to develop the country through which it has located its route, and this right is not to be summarily taken away from it.

We do not, as a rule, interfere with the interlocutory action of the court below “ unless clearly erroneous and immediately injurious to the appellant:” Western New York & Pennsylvania Railway Company v. Buffalo, Rochester & Pittsburg Railway Company, 193 Pa. 127. This case is within the exception to the rule and calls for our interference. The decree is reversed and the preliminary injunction awarded is dissolved, the costs on this appeal to be paid by the appellees.


author: Mb. Justice Potteb,

text:
    Herbstritt v. The Lackawanna Lumber Company, Appellant.

      Practice, C. P.—Amendment—Master and servant—Negligence.

    Where an action of trespass is brought for the death of a person alleged in the statement of claim to be an employee of the defendant, the statement may be amended after the period of the statute of limitations has expired, by an averment that the deceased was an employee of a third party, and not of the defendant.

      Negligence—Railroads—Private ■ railroads—Proximate and remote cause.

    In an action against a corporation owning a private railroad, to recover damages for the death of plaintiff’s husband, it appeared that at the time of the accident the decedent was working on some standing cars, and that certain other cars which were being loaded on the same branch track further up a grade, broke away, ran down the grade, collided with the car upon which the deceased was standing, and killed him. The evidence showed that on a Sunday night the defendant switched the cars which broke loose, to the point where they were to be loaded, and after setting the brakes and propping the wheels with wood, delivered them over to the employees of another company or a contractor for such company. Before the loading began the foreman in charge put additional props under the wheels. As the loading progressed the increased weight of the car caused the shoes of the brake to settle away from the wheels, and loosened them, causing the cars to break away. The brakes were not tightened up as the loading progressed, although this was customary. The accident occurred on Tuesday. It was claimed that additional safety switches should have been placed by the defendant along the tracks, in anticipation of such an accident. It was shown that the use of such a switch would tend to make more dangerous the ordinary operations of the cars over the tramway, and that, as a rule, they were .only placed at the lower end of the branch track, so as to protect the mainline. Held, (1), that as the cars which broke loose were not in the possession of, or under the control of the defendant at the time of the accident, the latter was not liable; (2) that the absence of a safety switch was not, under the circumstances, the primary or proximate cause of the accident; and (3) that binding instructions should have been given for defendant.
    Argued May 2, 1905.
    Appeal, No. 348, Jan. T., 1904, by defendant, from judgment of C. P. Potter Co., June T., 1902, No. 91, on verdict for plaintiff in case of Amanda Herbstritt v. The Lackawanna Lumber Company.
    Before Mitchell, C. J., Dean, Brown, Mestrezat and 'Potter, JJ.
    Reversed.
    • Trespass to recover damages for death of plaintiff’s husband. Before Ormerod, P. J,
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $8,000. Defendant appealed. j

      Errors assigned among others were (2, 3, 7) refusal of defendant’s points; (8, 15 and 16) quoted in the opinion of the Supreme Court; and (1) in allowing the amendment of the statement.

      Samuel B. Price, with him W. I. Lewis and Arch. F. Jones, for appellant.
    After the statute of limitations has run, the plaintiff will not be permitted to shift his ground or enlarge its surface by amendment: Frauenthal v. Derr et al., 3 Kulp, 379; Whitaker et al. v. Thompson et al., 2 Kulp, 250; Smith v. Smith, 45 Pa. 403; Wright v. Hart, 44 Pa. 454; Grier v. Assurance Co., 183 Pa. 334; Knox v. Hilty, 118 Pa. 430; Peterson v. R. R. Co., 195 Pa. 494; Philadelphia v. Pass. Ry. Co., 203 Pa. 38.
    In order that' the person who has been injured by accident may hold another responsible on the ground of negligence, there must be a causal connection between the negligence and the hurt: Curtin v. Somerset, 140 Pa. 70; Price v. R. R. Co., 202 Pa. 176; Mixter v. Imperial Coal Co., 152 Pa. 395.
    Where the facts are undisputed the question of proximate cause is always for the court: Hoag v. Lake Shore & M. S. R. R. Co., 85 Pa. 293; West Mahonoy Township v. Watson, 116 Pa. 344; Scott v. Allegheny Valley Ry. Co., 172 Pa. 646.

      Eugene Mullin, with him J. P. Mullin, for appellee.
    Not withstanding the provisions of the act of 1855 requiring suit to be brought within one year, the declaration may be amended after the expiration of one year: Huntingdon & Broad Top R. R. Co. v. Decker, 84 Pa. 419; Seipel v. R. R. Extension Co., 129 Pa. 425; Fillman v. Ryon, 168 Pa. 484; Booth v. Dorsey, 202 Pa. 381; Bigler v. Lead & Oil Co., 50 Pitts. L. J. 32; Erie City Iron Works v. Barber, 118 Pa. 6.
    If the defendant company was operating this railroad for the benefit of the public, as the evidence discloses, it was a railroad company within the meaning of the act of 1868 and the provisions of the act would be applicable to the case at issue: Green’s Brice’s Ultra Vires, 279; Auburn & Cato Plank-Road v. Douglass, 9 N. Y. 444.
    It was the duty of the defendant to properly block or secure the cars which caused the accident in such a manner as to prevent them from breaking away. It was also its duty td furnish its employees with proper materials to safely hold the cars in position and there is no evidence that this was done: Butterman v. McClintic-Marshall Const. Co., 206 Pa. 82; North Pennsylvania R. R. Co. v. Kirk, 90 Pa. 15; Buente v. Traction Co., 2 Pa. Superior Ct. 185; Henderson v. R. R. Co., 144 Pa. 461; Strawbridge v. Bradford, 128 Pa. 200.
    The question of negligence ought generally to be submitted to the jury: Hydraulic Works Co. v. Orr, 83 Pa. 332; Railroad Company v. McKeen, 90 Pa. 122; Railroad Company v. Killips, 88 Pa. 405; Murphy v. Crossan, 98 Pa. 495; Schum v. R. R. Co., 107 Pa. 8; Penna. R. R. Co. v. Peters, 116 Pa. 206.
    If a master subjects his servants to dangers such as he ought to provide against, he is liable for any accident resulting therefrom: Patterson v. Pittsburg, etc., R. R. Co., 76 Pa. 389; Prescott v. Ball Engine Co., 176 Pa. 459; McCombs v. Ry. Co., 130 Pa. 182; Donner v. Del. & Hudson Canal Co., 164 Pa. 17; Englehaupt v. Erie R. R. Co., 209 Pa. 182; Rahenkamp v. Traction Co., 14 Pa. Superior Ct. 635; Bunting v. Hogsett, 27 W. N. C. 317; Butterman v. McClintic-Marshall Const. Co., 206 Pa. 82.

      Samuel B. Price, with him W. I. Lewis and Arch. F. Jones, for appellant, in reply.
    No act of the defendant was the proximate cause of the accident.
    Where an independent intervening cause interrupts the natural sequence and causal connection between the original act of negligence and the injury, the intervening cause becomes the proximate cause and the author of the negligence is not liable: Milwaukee, etc., Ry. Co. v. Kellogg, 94 U. S. 469; Fairbanks v. Kerr, 70 Pa. 86; Scheffer v. Washington City, etc., R. R. Co., 105 U. S. 249.
    The negligence alleged in the declaration is the neglect to provide sufficient brakes, and to provide safety switches.
    If the act of 1868 applies, and the deceased was a co-employee under its terms, there can be no recovery because the negligence, if there were any, was that of a co-employee: Ricard v. North Penna. R. R. Co., 89 Pa. 193; Balt. & Ohio R. R. Co. v. Colvin, 118 Pa. 230.
    June 22, 1905:
   Opinion by

Mb. Justice Potteb,

The defendant company owned and operated a private railroad and several switches, which it used chiefly for handling its own logs and bark. The plaintiff’s husband, Andrew J. Herbstritt, was on January 21, 1902, in the employ of the Pennsylvania Stave Company, and was engaged in scaling logs which were being loaded upon railroad cars, standing on a tramway of the defendant.

Six box cars, which were not the property of the defendant, but belonged to railroad companies, were standing on the same tramway, some distance up the grade, from the point where Mr. Herbstritt was at work. These cars were being loaded by the Bayliss Pulp Company, or its employees. In some manner, not shown by the evidence, these cars broke away and ran down the grade, and ran into the cars upon which Mr. Herbstritt was standing, and he was killed. His widow afterwards brought this suit to recover damages, for causing his death.

The declaration as first filed, alleged that Herbstritt was employed by the defendant company; but the evidence at the first trial showed that this was a mistake and that he was employed by the stave company. A nonsuit was entered, which-was subsequently taken off, and an amendment to the declaration was allowed,, charging “ that the said Andrew J. Herbstritt, husband of the plaintiff, was employed by the Pennsylvania Stave Company to scale logs upon' the premises of the defendant. In pursuance of such employment, and with the consent of the defendant company, said Andrew J. Herbstritt, was engaged in the business of scaling'logs.”

Objection was made to the allowance of the amendment, upon the ground that it materially changed the cause of action, after the bar of the statute of limitations had interposed. The objection was overruled, and this action of the court is made the subject of the first assignment of error. We have not been convinced that the court was wrong in this respect. The real cause of action as alleged in the first declaration, was the killing of the plaintiff’s husband, by the negligence of the defendant company in permitting the loaded cars to descend the steep grade and strike the cars upon which Andrew Herbstritt was working, with such force as to cause his death. This was the real cause of complaint, and it remained the same under both declarations. The measure of responsibility would of course vary, in accordance with the fact of Mr. Herbstritt being an employee of the defendant or not: but in any event the cause of action was the alleged negligence in permitting the escape of the loaded cars, and the consequent disastrous collision.

The serious question in the case is raised by the third assignment which alleges error in the refusal of the defendant’s fifteenth point, which was as follows: “ Fifteenth. The uncontradicted evidence in this case being that the cars that caused the injury were in the possession and use of the pulp company and its servants and employees from Sunday night until Tuesday, the day of the accident, breaks the causal connection between any act of the defendant company and the accident, and thereby relieves the defendant company from any liability.”

The same question is also raised by the seventh assignment, which complains of the refusal of the defendant’s eighth point, as follows: “ Eighth. The cars, the breaking away of which caused the death of the plaintiff’s husband, not being in the possession of the defendant, not' being used by the defendant at the time, but being loaded by strangers to the case, for their own use, the defendant cannot be made to answer for the result of the accident.”

It appears clearly from the evidence that the six cars which broke loose and caused the death of the plaintiff’s husband, were sent in at the request of the Bayliss Pulp Company, or of persons who were employed by them or who contracted with them to supply wood for the purposes of making pulp. The defendant company switched the cars in with its engine, and by its employees, set the brakes on the cars and left them at the point designated by the pulp company. As there was considerable grade at the place where the cars were left standing, they did not depend upon the holding power of the brakes alone, but, in addition, the cars were propped with short pieces of wood placed, against the end- and at the sides, braced between the axle and the ties. The cars in question were switched in on Sunday, and left to be loaded for the pulp company, and so remained standing upon the tracks until the following Tuesday morning.

It appears from the testimony that a Mr. Fitzgerald had the contract to furnish this wood to the pulp company. He in turn contracted with one, Comstock, to load the wood at so much per cord. Mr. Hill, who was foreman for Fitzgerald, sent the order for the cars to the defendant company, and he testifies that they were delivered on Sunday afternoon. Pie says that the next morning after the cars were placed on the switch, he took a man with him and propped one side, while his companion did the other side, of the six cars that were standing there. This shows that he was not depending upon the props already placed in position by the employees of the defendant company when the empty cars were left standing upon the switch. He then ordered the cars to be loaded full of wood.

It is very clear from the testimony that the defendant company had nothing whatever to do with the control or care of these cars after they were switched in. During the time they were being loaded, they were in the hands and under the control of the contractors who were loading them with wood. It does not appear what caused the cars to start. But no reasonable cause Avas suggested, other than that of the additional Aveight caused by the loading of the cars. It might have been that the brakes were loosened by some one; but whether or not this was the case, does not appear. The brakes and the props Avere sufficient to hold the cars in place while empty, and apparently for some little time after they were loaded. It does clearly appear that when the pulp company took possession of the cars and began loading them it assumed the responsibility of holding the cars in place. This Avas shown by the fact that the first step taken by Mr. Hill when he began the operation of loading, Avas to place additional props under and upon both sides of the cars.

One of the witnesses, Mr. Peck, testified that loading the cars had an effect upon the brakes, and that, as the weight increased upon the car, it caused the shoes to settle away from the wheels, and loosened them, tie said that it was customary in loading such cars, to keep tightening up the brakes, and that this Avas done by the jobber, or the man A¡vho ordered the cars and under Avhose direction they were being loaded. It would be most unreasonable to hold the defendant company responsible for the management of the cars during the time they Avere in the possession of the employees of the pulp company or its contractors, while being loaded. The responsibility for permitting the cars to escape must be placed upon the men Avho were in control of them at the time. Clearly these men were not the employees of the defendant company. It is no less clear that the direct and proximate cause of the accident was the breaking away of the cars. In the argument of counsel for the appellee, considerable stress was placed upon the contention that additional safety switches should have been placed by the defendant company along the tracks, in anticipation of such an accident as this. But, under any circumstances, the absence of a safety switch was not the pri mary or proximate cause of the accident. The use of a safety switch would be but the interposition of an heroic. remedy whereby the runaway cars, after having started on their downward career, might be derailed and wrecked. The safety switch would not guard in any way men or property, if any there were on the runaway cars, although if effective it would prevent collision with anything below the switch. It was also shown by the testimony that the use of additional safety switches would tend to make more dangerous the ordinary operation of the cars over the tramway, and that, as a rule, they were only placed at the lower end of the branch track, so as to protect the main line.

A careful examination of the evidence has satisfied us that the defendant’s eighth and fifteenth points should have been affirmed. So also should the sixteenth point, which asked for binding instructions in its favor.

The second, third and seventh assignments of error are sustained, and the judgment is reversed.


author: Me. Justice Mestrezat,

text:
    Johnson, Appellant, v. Crawford.

      Arbitration—Time limit—Failure to submit—Contract.

    Where an agreement of arbitration provides that the matters in controversy shall be submitted to the arbitrators within sixty days, and no submission is made within the sixty days because of the incapacity of one of the arbitrators, the court will set aside the submission to arbitrate and strike it from the record.
    The parties are bound by the terms of their submission and the failure to comply with the stipulation requiring the case to be submitted within the time designated in the agreement is fatal to any proceedings taken thereafter under the submission. The parties themselves may extend the time within which the cause is to be heard by arbitrators or the award is to be made, but without such action by the parties the limit named in the submission must be observed. The arbitrators themselves cannot disregard the stipulation of the submission in this respect, and if they do, their award is of no validity and will be set aside.
    Argued May 2, 1905.
    Appeal, No. 10, Jan. T., 1905, by plaintiff, from order of C. P. Elk Co., Oct. T., 1904, No. 171, setting aside arbitration proceedings in case of Maria P. Johnson v. George H. Crawford and Walter S. Yothers, trading as Crawford & Yothers.
    Before Mitchell, C. J., Dean, Bbown, Mestbezat and Potteb, JJ.
    Affirmed.
    Rule to set aside arbitration.
    The facts appear by the opinion of the Supreme Court.

      Error assigned was order setting aside arbitration proceedings.

      A. L. Qole and John Houston Merrill, with them O. H. M Oaur ley, for appellant.
    —The incapacitating illness of the third arbitrator, during the entire period limited for the presentation of the proofs, was not a revocation of the submission by operation of law; and therefore the learned court i Now erred in vacating the agreement upon that ground : Potter Sterrett, 24 Pa. 411; Huggins v. Neill, 2 Pa. Superior Ct. 103, Wolf v. Augustine, 181 Pa. 576; Colder v. Weaver, 7 Watts, 466; Gass’ App., 78 Pa. 39; Dewey v. School Dist., 43 Mich. 480 (5 N. W. Repr. 646); Gear v. Gear, 37 N. E. Repr. 1059; Stewart v. Loring, 87 Mass. 306; Doty v. Whittlesey, 1 Root (Conn.), 310; Scully v. Kirkpatrick, 79 Pa. 324.
    If the illness of the arbitrator did not work a revocation of the submission by operation of law, then the appointment of his successor following his resignation, and the subsequent proceedings, were not invalid; and the learned court below erred in setting them aside : Potter v. Sterrett, 24 Pa. 411; Huggins v. Neill, 2 Pa. Superior Ct. 103; Wolf v. Augustine, 181 Pa. 576; Lilly v. Person, 168 Pa. 219.

      Harry Alvan Hall, with him Eugene H Baird, for appellees.
    The submission was revoked by its own terms owing to the fact that the arbitrators did not qualify or meet within sixty days after it was executed in the absence of any agreement of the parties or order of court to the contrary : Shermer v. Beale, 1 Wash. (Va.) 11; Bryer v. Stewart, 2 Hayw. (N. Car.) 111; Halden v. Glasscock, 5 B. & C. 390; Buckman v. Davis, 28 Pa. 211; Wilson v. Cross, 7 Watts, 495; Shisler v. Keavy, 75 Pa. 79; Sands v. Rolshouse, 3 Pa. 456; Rogers v. Playford, 12 Pa. 181; Reid v. Fryatt, 1 M. & S. 1; Denton v. Strong, L. R. 9 Q. B. 117; Rex v. Stevens, 5 East, 244; Dakins v. Wagner, 3 Dowling P. C. 535; Tyler v. Jones, 3 B. & C. 144; Lawrence v. Hodgson, 1 Y. & J. 16; Burley v. Stephens, 1 M. & W. 156; Haggart v. Morgan, 5 N. Y. 422; Church v. Parkhurst, 17 N. Y. Superior Ct. 491; Morton v. Cameron, 26 N. Y. Superior Ct. 189; Schepp v. Manley, 59 Hun, 440 (13 N. Y. Supp. 728).
    June 22, 1905:
   Opinion by

Me. Justice Mestrezat,

By an agreement in writing, dated March 1,1904, the parties to this suit entered an amicable action in assumpsit in the court of common pleas' of Elk county with the same effect as if a summons had been regularly issued and served and so returned. On the same day, the parties by. a writing under seal agreed “ to submit all matters in controversy and at variance between the plaintiff and defendants hereto, from any cause, matter or thing whatsoever, to two arbitrators, one to be chosen by the plaintiff and one to be chosen by the defendants Avithin ten ■days from this date. And said arbitrators shall choose a third arbitrator or umpire and all of said matters in controversy and .at variance between the parties shall be submitted to said arbitrators within sixty days from the date hereof, and said arbitrators shall hear the parties .... ascertain and determine the amount due from the defendants to the plaintiff. ... It being further agreed that this said submission to such arbitrators shall be made a rule of court in the court of common pleas of Elk county.”

Pursuant to this submission and on the day it was signed the plaintiff chose James K. Gardner and the defendants chose M. J. Quinn to act for them respectively as arbitrators. On March 9, 4904, the two arbitrators thus appointed chose C. B. Farr “as the third arbitrator or umpire in the above proceedings.”

Owing to continued ill health, Mr. Farr was unable to serve as an arbitrator and on July 21,1904, nearly five mouths,, after the date of the submission and without any meeting or hearing having been had by the arbitrators, he tendered his resignation and requested the other arbitrators to appoint another person in his stead. Thereupon, on the same day, the other two arbitrators' chose A. R. Spicer “as the third arbitrator or umpire in the above proceedings.” The board of arbitrators, as thus constituted, notified the parties that they would hear the case on September 20, 1904. Prior to the date of this hearing, the attorneys of the defendants notified the attorney of the plaintiff “ that as the time within which the arbitrators should have proceeded to hear this case, under the terms of the agreement, has long since expired, and as there might now be some question concerning the validity of their award our clients, upon consultation, respectfully decline to proceed.” On September 7, the defendants presented their petition to court setting forth the above facts and prayed the court “ to declare and decree that said agreement of reference has expired by its own limitation and that the same be stricken from the records.” A rule was granted on the plaintiff to show cause why the prayer of the petition should not be granted, and subsequently the court “ ordered and decreed that the said agreement has expired by its own limitation, and that all proceedings thereunder shall be vacated and set aside.” From this decree the plaintiff has appealed.

The learned trial court was clearly right in setting aside the submission to arbitrate. The agreement of the parties by which the submission was made provides that “ all of said matters in controversy and at variance between the parties shall be submitted to said arbitrators within sixty days from the date hereof.” The parties are bound by the terms of their submission and the failure to comply with the stipulation requiring the case to be submitted within the time designated in the agreement is fatal to any proceedings taken thereafter under the submission. The parties themselves may extend the time within which the cause is to be heard by arbitrators or the award is to be made, but without such action by the parties the limit named in the submission must be observed. The arbitrators themselves cannot disregard the stipulation of the submission in this respect, and if they do, their award is of no validity and will be set aside.

The cause of the neglect of the arbitrators to act within the time fixed in the submission, not being imputable to the parties, is immaterial. The stipulation in this agreement is mandatory and the illness of one of the arbitrators would not relieve the parties from submitting the controversy to the arbitrators within the sixty day limit. Had the third arbitrator, for any eause, declined to act 'within the sixty days, the other two arbitrators, it has been held, could have selected another in his place, and the three would have constituted a legal tribunal under the submission. But that was not done, and within the time limit no steps were taken to substitute another arbitrator for Mr. Farr, who was ill, or to submit the case to the arbitrators who had been chosen to adjust the differences of the parties. The submission was, therefore, invalidated, and the authority of the arbitrators, appointed in pursuance of it, was at an end.

All the authorities recognize the principle that arbitrators must act within the time fixed in the submission, and that a failure to do so invalidates all proceedings subsequent to the expiration of the time limit. In Russell on The Power and Duty of an Arbitrator and the Law of Submissions and Awards (7th Eng. ed. 1891), 138, the learned author says-: “When the submission fixes a limit, the award must he made within it, unless further time be subsequently given. . . . Without the consent of the parties, neither the court nor a judge could at common law grant any enlargement when the time had lapsed; the authority of the arbitrator was gone and all the proceedings already taken became ineffectual.” In 2 Am. & Eng. Ency. of Law (2d ed.), 591, it is said: “ An arbitrator cannot extend the time unless the agreement gives him the power, and it must be done within the time fixed for making the award. .... Refusal of several arbitrators to act revokes the submission. . . . The arbitrator’s authority ceases at the end of the time fixed for making the award. This time may be extended by the consent of the parties, or waived by their acts.”

In 3 Cyclopaedia of Law and Procedure, 631, it is said: “ Whenever, by the terms'of the submission, either at common law or under rule of court, the award is required to be made within a specified time, the authority of the arbitrators terminates upon the expiration of the time specified.” .

In Morse on Arbitration (1872), 223, the learned author says: “ If tbe submission or rule of court names any time within which the award or report is to be made, the authority of the referees or arbitrators ceases with the expiration of that time. .... Of course there may be an extension of the time, made by the parties themselves, beyond the limitation first set. . . . The refusal of a person named as arbitrator to act as such, or his resignation of the office, will put an end to the submission.”

It is well settled in this state that a submission to arbitration cannot be revoked when the agreement partakes of the nature of a contract whereby important rights are gained and lost reciprocally and the submission is the moving consideration to these acts : Paist v. Caldwell, 75 Pa. 161; McCune v. Lytle, 197 Pa. 404. Neither can a submission be revoked by the parties which is made a rule of court: Zehner v. Lehigh Coal & Navigation Co., 187 Pa. 487. But it is also settled law that although a submission is supported by a consideration and is made a rule of court, a vacancy in a board of arbitrators before an award, occasioned by death or the refusal of one of the arbitrators to act or by any other cause, unless otherwise stipulated, operates as a revocation of the submission, and the court will on application annul it and set aside the rule to arbitrate: Wolf v. Augustine, 181 Pa. 576; Potter v. Sterrett, 24 Pa. 411. In the case at bar, as in all cases of arbitration and reference, the terms of the submission regulate and control the action of the arbitrators and the failure to act within the time designated in the submission is of like effect as if one of the arbitrators in a submission without a time limit decline to act at all. In such cases, it is the act of the arbitrator or arbitrators, and not of the party, that revokes the submission. A submission may be irrevocable by a party, but action or non-action on the part of the arbitrators may revoke it.

The parties in this case desired a speedy disposition of their controversy, and the manifest purpose was that a failure of the arbitrators to act within the time fixed in the submission should be a revocation of their authority. The court has carried out this purpose by striking off the submission.

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


author: Mb.. Justice Potteb,

text:
    Weschler’s Estate.

      Will—Continuance of testator’s business—Profits—Principal.

    Where testator directs that his business should be continued for five years after his death, and that so much of the net profits thereof should be given annually to his children as could be divided without impairment of capital or injury to the business, and that when the business should be closed up the capital should be divided amongst his children, his daughters’ shares in trust for their life with remainder to their children, the profits are to be divided up amongst the children, although some of the profits during the five years were used in enlarging the plant; and this is especially so where it appears that the expenditures on the plant brought an increase of price at which the property was sold.
    Argued May 2, 1905.
    Appeal, No. 126, Jan. T., 1905, by D. D. Weschler et al., executors, from decree of O. C. Erie Co., Feb. T., 1904, No. 42, dismissing exceptions to auditor’s report in Estate of Jacob Weschler, deceased.
    Before Mitchell, C. J., Dean, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Exceptions to report of Joseph M. Force, Esq., auditor.
    The auditor reported as follows :
    Jacob Weschler, at the time of his death, was engaged in the malting business, in the city of Erie, and had been so engaged for a number of years prior thereto.
    By his will he directed that his malting business should be continued for at least five years after his death, under the management and control of his son, Daniel D. Weschler, at a salary of f4,000 per year, with the provision that if at the end of five years, all his children then living so desired, it should be continued for a longer period, and further directed that at least once in the year, so much of the net profits of the business as could be divided without impairment of the capital or injury to the business, should be paid, one-fifth to his son, D. D. Weschler; one-fifth to his son, Joseph J. Weschler; one-fifth to his son, Andrew Weschler; one-fifth to his daughter, Mrs. Bena Leary, and the other one-fifth to his daughter, Mrs. Prances Brown.
    He further provided that when the business should be closed up the capital invested therein should be divided into five equal parts, one-fifth to be given to each of his two sons above mentioned, and the other two-fifths to be held by Daniel D. Weschler, and J. L. Sternberg, in trust, to pay the interest and income thereon to his daughters, Mrs. Bena Leary and Mrs. Frances Brown, during their respective lives, and at the death of either of them, the one-fifth held in trust for the mother to be divided among her children, share and share alike.
    He also gave to his daughter, Mrs. Leary, the use of the house in which she resided, said property after her death to go to her children, in fee.
    Ho gave to Mrs. Frances Brown the dwelling house and lot where she resides, for and during her life and after her death to go to her children, in fee simple, the value of these two houses and lots to be charged against the one-fifth interest in his estate given to Mrs. Brown and Mrs. Leary.
    The rest and residue of his estate he divided into five parts, giving to each of his sons one-fifth in fee simple, and to Daniel D. Weschler and J. L. Sternberg, the other two-fifths in trust, the same to be invested and the net income thereof to be paid, one-fifth to'Mrs. Bena Leary, and one-fifth to Mrs. Frances Brown, during the life of each of them, and at the death of either of them the one-fifth held for the mother, to be paid to her children, share and share alike.
    Under the direction in said will, Daniel D. Weschler took charge of the business at the death of his father, and conducted it as manager until its sale to the American Malting Company, in October, 1897.
    While acting as manager said D. D. Weschler furnished annually to the heirs and legatees a statement showing the condition of the business, which said statements were offered in evidence.
    A statement showing the condition of the business October 1, 1893, gives the net profit from the business for the preceding year as $16,932.36.
    A statement showing the condition of the business October 1, 1894, gives the net profit from the business for that year as $28,980.22.
    A statement showing the condition of the business October 1, 1895, gives the net profits from the business for that. year as $28,818.16.
    A statement showing the condition of the business on September 1, 1896, gives the net profit of the business for that year as $42,441.18.
    A statement showing the condition of the business on September 1, 1897, gives the net profits in the business as $34,557.36.
    The evidence also shows that at the date of Jacob Weschler’s death the net profits for the preceding year amounted to $16,932.36, being the same amount given above in the statement of October 12,1893.
    During the time Daniel D. Weschler acted as manager of the business, George W. Schlindwein had charge of the books and made all the statements furnished to the heirs. Mr. Schlindwein explains the methods by which he arrived at the profits for any given year, showing that it was ascertained by finding the difference between the cost of the raw material with expense of manufacturing and value of stock on hand added to the amount of sales received during the year.
    Mr. Schlindwein, in his testimony, gives the net profits for the time the business was managed by D. D. Weschler as $130,076.37, a slight variation from the amount shown in the statement prepared by him and furnished the legatees, and which have been offered in evidence. Of this amount $44,472.45 was distributed to the legatees, the exceptants, Mrs. Brown and Mrs. Leary, receiving $8,894.49.
    According to the testimony it appears that when the property was sold to the American Malting Company the executors received therefor $253,500.37 in excess of the actual cost of the plant. It is contended by the exceptants that the sum so received in excess of the amount invested in the plant should be treated as net profits and divided among the legatees, Mrs. Brown and Mrs. Leary, each being entitled to receive one-fifth thereof.
    Instead of this being done, one-fifth of this amount, together with one-fifth of the balance of the $130,076.37, the net profits earned under the management of Daniel D. Weschler, was by the executors turned over to Daniel D. Weschler and J. L. Sternberg, trustees under the will, to be held by them for the benefit of exceptants during their lives, and to be paid their children at their death.
    This is the principal question raised by the exceptions filed, whether the $130,076.37 and the $253,500.37 are “net profits ” within, the meaning of the will of Jacob Weschler, one-fifth of which are to be given to each of.his children, or whether these sums or either of them instead of being net profits are to be treated as a part of the capital of the estate, and one-fifth thereof to be held by said trustees, as provided in said will.
    Is the amount for which the plant sold in excess of the cost thereof, apart of the profit which Jacob Weschler intended should be distributed among his five children in equal shares, or did he have in mind the net earnings derived from the management of his business by Daniel D. Weschler during such time as it was conducted by him ?
    If instead of accepting the offer of the American Malting Company the executors had refused the same, would the increase in the value of the plant, as indicated by the offer, have been considered as profits to be equally divided among the five children of Jacob Weschler?
    Was this $253,500.87 for which the property was sold in excess of its cost, a profit arising during the time business was continued, or was it a gain derived from the sale of the plant on the discontinuance of the business, and could it have been within the mind of the testator when he provided that “so much of the net profits as can be divided without impairment of the capital or injury to the business, shall be divided and paid as follows,” when this gain or profit was only acquired by a discontinuance of the very business referred to ?
    Was this sum profit or was it a part of the capital and included within a later clause of the will which provides. “ when the business shall be closed up I give and bequeath the capital therein as follows : ”
    If this $253,500.37 was part of the capital of the business, then two-fifths thereof was properly given by the executors to J. L. Sternberg and Daniel D. Weschler, the trustees under the will.
    If it was not a part of the capital, but was part of the profits from the business while conducted by Daniel D. Weschler as manager, then two-fifths thereof should be distributed to the exceptants.
    This was part of the selling price of the malting plant, which consisted of the buildings, machinery, tools, horses, wagons and all things used in and necessary to carry on the-malting business as it had been theretofore conducted.

      It can hardly be claimed that this excess over the cost of the plant all accrued after the death of Jacob Weschler, and if it or any part thereof accrued prior to his death, that part, under the principle declared in Earp’s Appeal, 28 Pa. 368, would be part of the principal fund, and would therefore be capital and not profit within the contention of exceptants.
    I am of the opinion that the net annual profits derived from the business as conducted by- Daniel D. Weschler, was the fund which Jacob Weschler intended to have divided annually between his children, and that he had no thought or intention of making division in any manner of any sum for which his malting plant might be sold by his executors, in excess of the cost of the same.
    Unless, therefore, the rules of construction as laid down by the courts of this commonwealth, require this $253,500.37 to be treated as profits, under the terms of this will, it should not be so treated.
    In the cases cited by counsel for exceptants, the income devised was the earnings of money invested in stock or bonds, and the questions decided were mostly concerning accumulations of dividends or interest thereon. This was not an accumulation in the sense of increasing the capital by combining with it certain earnings of the business, but it was an increase of the value of the capital itself, unaided by any act of the manager.
    Nor do I regard this as a doubtful case or one where the will is either ambiguous or obscure, where it becomes necessary to apply the rules of construction declared in the case cited by counsel for exceptants.
    The intention of the testator seems perfectly clear that his children should share equally in the profit derived from the conduct of the business under the manager he had provided by his will, and that his daughters, Frances Brown and Bena Leary, should each have the income from one-fifth of his estate after it was divided, and in addition so much of the principal of said fifth as might be necessary for her comfortable support, the balance of said principal to go to the children of said daughter, at the death of the mother.
    I am, therefore, of the opinion that the total amount realized from the sale of the malting plant, was “ capital ” within the meaning and intention of the will of Jacob Weschler, and that the exceptants are not entitled to any portion thereof, but that two-fifths of the sum was properly paid by the executors to J..L. Sternberg and Daniel D. Weschler, in trust, the income from one-fifth to be paid by said trustees to Mrs. Frances Brown, and the income from the other fifth to be paid to Mrs. Bena Leary during the life of each.
    I am also of the opinion that Mrs. Frances Brown and Mrs. Bena Leary, the exceptants, are each entitled to receive the sum of $17,120.78 from' the fund paid by the executors to J. L. Sternberg and Daniel D. Weschler, trustees, that being their respective one-fifth share of the undivided profits amounting to $130,076.37 earned during the time the business was operated by Daniel D. Weschler as manager.
    Exceptions to the award of a share of the undivided profits to Frances Brown and to Bena Leary were filed by the executors and were dismissed by the court.

      Error assigned was in dismissing exceptions to auditor’s report.

      T. A. Lamb, for appellant.

      Albert B. Osborne, for appellee.
    June 22, 1905:
   Opinion by

Mb.. Justice Potteb,

The testator directed that his malting business should be continued for at least five years after his death, and that during that time so much of the net profits should be given annually to his children as could be divided without impairment of the capital or injury to-the business. He further directed that when the business should be closed, the capital should be divided into five parts; two of the parts were given to trustees to pay over the interest and income thereof annually to his two daughters during their lifetime, and the principal to the children of said daughters.

The business was carried on from the death of testator, in 1893, until in 1897 it was sold out. During that period, as found by the auditor, the net profits were $130,076.37, and of this amount $44,472.45 was distributed to the legatees, which gave them each $8,894.49. If the entire amount of the profits had been distributed each would have received $26,015.27. The auditor decided that the daughters were entitled to receive the entire sum, and awarded to each the sum of $17,120.78, that being, with the amount already paid them, the one-fifth share of the undivided profits earned during the time the business was carried on after the death of the testator.' The executors excepted to the finding of the auditor in this respect, but the court below overruled the exceptions, and his action in so doing is here assigned as error.

It is argued on behalf of the executors that a portion of the profits had been, with the consent of all concerned, transferred from the profit account to the capital account by means of necessary expenditures in the enlargement of the plant before it was sold. It is true that the improvements were authorized by all the heirs. But we see nothing in the agreement which would justify charging the cost to and against the profit account. As a matter of fact it does not seem to have beemso charged on the books. All the resources of the estate were apparently blended in one common fund, so that it did not appear whether the cost was paid from profits or from capital account. Nor would it appear to be of any practical importance. For the final sale of the property was made at a figure which showed a gain of $253,500.37 over the cost of the plant, and this was all treated as an increase of capital account, and the proportionate share of the daughters therein was held by the trustees, for the daughters, under the terms of the will. So that under no circumstances is there any just cause for complaint by those interested in the estate in remainder. The improvements made were considered by all concerned as beneficial to the estate, and may reasonably be supposed to have aided largely in bringing about the sale at an enhanced price. And again, as is suggested by counsel for the appellees, the fund primarily liable for the debts of the decedent, was the property, real and personal, of which he died possessed. This was sufficient to pay all liabilities and leave a large excess. So that there was no occasion to seek to transfer the burden of discharging the debts, to the profits of the business earned after the death of the testator. We coincide with the view taken by the auditor, which was confirmed by the court below. The decree of the orphans’ court is affirmed, and this appeal is dismissed at the cost of the appellants.


author: Per Curiam,

text:
    Kleckner, Appellant, v. Kleckner.

      Deed—Parent and bhild—Fraud—Support and maintenance—Evidence— Presumption.

    Where an elderly woman feeling herself unable to continue the management of her real estate conveys it to her son in consideration of support and maintenance for her life, and it appears that the income will only be sufficient to support her, and that her support remains a charge on the land, no fraud or unfair practice will be presumed from the conveyance, and in the absence of evidence of fraud and actual undue influence such conveyance will be sustained. In such a case the absence of a power of revocation in the deed is immaterial.
    Argued May 8, 1905.
    Appeal, No. 291, Jan. T., 1904, by plaintiff, from decree of C. P. Union Co., Sept. T., 1902, No. 1, dismissing bill in equity in case of Angeline C. Kleckner v. William M. Kleckner.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Elkin, JJ.
    Affirmed.
    Bill in equity for the rescission and cancellation of a deed. Before McClure, P. J.
    From the record it appeared that on August 13, 1901, Angeline C. Kleckner, the mother'of defendant, conveyed to the latter certain real estate by deed which contained the following covenant:
    “ The said party of the second part for himself, his heirs, executors, administrators and assigns, in consideration of the premises, hereby grants and agrees to and with the said party of the first part, that he will during the life of the party of the first part furnish and supply her free of charge with good and sufficient meat, drink, raiment, board and maintainance, coal and wood, washing and ironing, of every description, and medical attendance and medicines, in case of illness, and in all and every respect provide and care for her in a complete and decent manner in accordance with her requirements as she has been heretofore maintained and provided for. And at her death will bury her in a Christianlike manner and provide a suitable tombstone at her grave free of charge.”
    The bill prayed for a cancellation of this deed on the ground of fraud.

      The court found as a fact that no fraud had been committed, and no actual undue influence exercised in procuring the deed.
    The court’s conclusions of law were as follows:
    The contention of the plaintiff is that there was not only constructive but actual fraud in procuring the execution of the deed by Mrs. Kleckner to her son. That between them the confidential relation of parent and child existed and the defendant sought to ingratiate himself- into his mother’s good will and confidence so that she would rely upon him and place her affairs in his hands. That in consequence of this relation the burden rests upon the defendant to prove to the satisfaction of a chancellor that the plaintiff acted voluntarily and deliberately and fully knew what she was doing; that she was competent to act, free from undue influence; had competent and independent advice and that the transaction was righteous. And that the defendant having failed in one and all of these requirements, a decree must be entered against him: Miskej^’s Appeal, 107 Pa. 611; Yardley v. Cuthbertson, 108 Pa. 395; Darlington’s Estate, 147 Pa. 624; Darlington’s Appeal, 86 Pa. 512; Cuthbertson’s Appeal, 97 Pa. 168; Worrall’s Appeal, 110 Pa. 349; Stepp v. Frampton, 179 Pa. 284; Russell’s Appeal, 75 Pa. 269; Longenecker v. Church, 200 Pa. 567, and kindred cases are cited in support of these propositions.
    The case in hand is easily distinguishable from those above enumerated. This is not a gift or bequest to a stranger, nor a voluntary conveyance to one occupying a position of trust and confidence. It is a conveyance by a mother to her son of practically all her property it is true, but for a good and valuable consideration, viz.: her support and maintenance for life; and, in the absence of fraud or undue influence, such family arrangements have been upheld by our courts. They are of quite frequent occurrence—no less than three of them having-been before us for adjudication during the past year—and fraud, circumvention or unfair practice in their making is .not presumed.
    It is strongly urged that this contract is so unconscionable and unrighteous as to call for the court to set it aside ; that the plaintiff is stripped of all her property by a deed without power of revocation; and that she has nothing more than the personal obligation of her son, who is without means, save what the conveyance gave him, to insure her support and maintenance. It appears to us that a misconception of the effect of the deed in question has occasioned much of the dissatisfaction in regard to it and the present hostile attitude of the parties. This is a conditional conveyance, the land stands as surety for the grantee and he is powerless to remove the charge thereby imposed upon it by sale or otherwise: Rohn v. Odenwelder, 162 Pa. 346, and cases there reviewed. And, as this was not a mere voluntary conveyance, but one founded on a good and valuable consideration,-it would not have been proper to have inserted a power of revocation and the absence of such power is entirely immaterial: Doran v. McConlogue, 150 Pa. 98. By accepting the grant the defendant assumed the obligation of providing for his mother “ in a complete and decent manner in accordance with her requirements as she has been heretofore maintained and provided for; ” and this he will be compelled to do whether the income and profits of the farm (some $200 to $300 per year) are sufficient for that purpose or not. She is relieved of the oversight of the farm which she felt unable to continue and was contemplating having assistance for that purpose. If the son fails to perform his duty to his mother and comply with the terms of the grant she has her remedy and the land will be restored to her. But we cannot avoid it in anticipation of his breach of his covenants. Thus far the son has not taken possession of the farm, no doubt owing to his mother’s attempted repudiation of her contract and the litigation which has grown out of it. She has received the proceeds, paid the taxes and refused reimbursement when tendered her. With the plaintiff hostile and rejecting his prof-erred services he could not comply with his agreement, but no inference that he will not in the future can be drawn therefrom.
    “ As to the improvidence of the deed, no more can be alleged than could be said of very many similar conveyances that have been made in Pennsylvania, and never questioned, or if questioned, not overthrown. All such dispositions of property are violations of those maxims of prudence that enjoin a man, whilst he has health in his body, to keep the staff in his own hands, and not divide his substance among his children till he come to die. Still they are common, and this one is as well guarded as they usually are: ” Woodwabjd, J., in Nace v. Boyer, 80 Pa. 99. “But how is the arrangement an unconscionable one? It is not a bargain and sale between strangers, but a family arrangement between a father and his children, by which the former, perhaps imprudently anticipating the course of nature, places in their hands that which, sooner or later, would be theirs at any rate, in consideration of maintenance and support free from all further worldly care, responsibility or trouble: ” Smyser, P. J., Ibid. See also Kelly’s Appeal, 108 Pa. 29.
    It is nevertheless well settled that when one who, though weak and failing, is not of unsound mind, deliberately bestows his property on a child in consideration of the latter’s undertaking to provide for his support, a court of equity will not avoid the grant, if it appears that he was aware of the consequences of his act and that it could not be recalled : Howe v. Howe, 99 Mass. 88; Hadley v. Latimer, 11 Tenn. 537; Nhce v. Boyer, 30 Pa. 99, 111; Darnell v. Rowland, 30 Indiana, 342. In the case last cited the court refused to set aside the deed, although the facts were strongly indicative of undue influence, if not of an abuse of confidence : 3 White and Tudor’s Leading Cases, 1211.
    Where the positions of the two parties are reversed, where the parent is aged, infirm, or otherwise in a condition of dependence upon his own child, and the child occupies a corresponding relation of authority, conveyances conferring benefits upon the child may be set aside. Cases of this kind turn upon the exercise of actual undue influence, and not upon any presumption of invalidity; a gift from parent to child is certainly not presumed to be invalid: Pomeroy’s Eq., vol. 2, sec. 962.
    That this doctrine has been adopted by the courts of Pennsylvania, and that they do not look with jealousy upon voluntary grants and conveyances upon good consideration from parents to children, see Doran v. McConlogue, 150 Pa. 98; Simon v. Simon, 163 Pa. 292; Knowlson v. Fleming, 165 Pa. 10, in addition to the cases above referred to.
    This is, as we have said, a family agreement. It was made by the only persons who have any title or reasonable expectant interest in the property left by the husband and father. No third person’s rights are affected by it. The mother is relieved of the care and management of the farm, and, as it will take the net income to maintain her, the son will receive no benefit until after her death. The grantor’s interests are as well guarded as in such conveyances they usually are and the land is kept in the blood of the Kleckners in conformity witli the law of descent in Pennsylvania. There is a wide difference between this case and those which appear in our books where the very delicate power of setting aside executed conveyances of property has been exercised by our courts of equity.
    From what has been said it follows as a matter of law that the bill must be dismissed.

      Error assigned was decree of the court dismissing the bill.

      Andrew A. Leiser, with him Andrew A. Leiser, Jr., for appellants.

      George B. Reimensnyder, with him J. Q. Bucher, for appellee.
    June 22, 1905:
   Per Curiam,

The bill seeks the rescission and cancellation of a deed made by the complainant to her son, on the ground that it was obtained by fraud. The question of fraud is the only one in the case. The evidence was very full on the whole transaction, the judge had it all before him and he found against the complainant. It would serve no useful purpose to review the evidence in detail. It is sufficient to say that we are satisfied witji the learned judge’s view of the facts and we affirm the decree on his conclusions of law.

Decree affirmed.


author: Per Curiam

text:
    Keefer v. Union County, Appellant.

      Contract—Extra work—Question of fact—Province of jury.

    In an action against a county to recover a balance alleged to be due on a contract, where the controversy in the case turns on the question of fact whether the work done by the plaintiff was outside of. his contract, and if so, whether it was done on the order of the county commissioners, and no errors appear in the rulings on evidence nor the instructions to the jury, a verdict and judgment for plaintiff will be sustained.
    Argued May 8, 1905.
    Appeal, No. 323, Jan. T., 1904, by defendant, from judgment of C. P. Union Co., May T., 1900, No. 34, on verdict for plaintiff in case of George W. Keefer v. Union County and the County of Northumberland.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Elkin, JJ.
    Affirmed.
    Assumpsit to recover a balance alleged to be due for the construction of a bridge, over the west branch of the Susquehanna river, between Milton in Northumberland county and West Milton in Union county. Before McClure, P. J.
    Verdict for plaintiff for #5,443.27, on which judgment was entered for #3,294.87, all above that sum having been remitted. Defendant appealed.

      Errors assigned were (1-63) various rulings on evidence and various instructions.

      William B. Follmer and Andrew A. Leiser, for appellant.

      George B. Beimensngder, with him Philip B. Linn, for appellee.
    June 22, 1905:
   Per Curiam

The sixty-three assignments of error raise no question of law which requires discussion. The controversy in the case was whether the work done by plaintiff was outside of his contract and if so whether it was done on the order of the county commissioners. The jury found the facts in his favor, and the court, after a very careful review, required a remittitur from plaintiff as to certain items and approved the verdict as thus modified. We find no error in his conclusion.

Judgment affirmed.


text:
    Chalfant, Appellant, v. Rocks.

      Contract—Executed contract—Incense—Absence of words of inheritance— Deed.

    Lan owner of coal, entered into an agreement in writing with C., as follows: “L. doth bargain and sell unto the aforesaid C. all that certain tract or parcel of coal containing three acres for the sum of three hundred dollars, situated, etc., .... The aforesaid C. is not to sell any coal only what he hauls himself or have hauled; also cannot sell the said three acres of coal to any person or persons, but L. his heirs and assigns.” Held, that the agreement was an executed assignment or conveyance of a license to take coal without words of inheritance, and that the right conveyed or assigned expired with the life of C.
    Argued May 9, 1905.
    Appeal, No. 21, Jan. T., 1905, by plaintiffs, from judgment of C. P. Fayette Co., Dec. T., 1903, No. 44, for defendants non obstante veredicto in case of Jemima A. Chalfant et al. v. Francis Rocks, William F. Soisson and Rocks Coal & Coke Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Elkin, JJ.
    Affirmed.
    Ejectment for three acres of coal in Redstone township. Before Umbel, J.
    At the trial it appeared that the defendants claimed title through one James A. Lynn who died in 1883. Plaintiffs claimed title under the following agreement in writing:
    “An article of agreement made and entered into this the 15th day of August 1877 Between James M. Linn of Redstone township of the first part and Fletcher F. Chalfant of the second part of Jefferson township all of Fayette county and State of Pennsylvania
    “ Witnesseth That the aforesaid Jas. M. Linn doth bargain and sell unto the aforesaid Fletcher F. Chalfant all that certain tract or parcel of coal containing three acres for the sum of three hundred dollars situated south of the brick house where John Hartsock now lives Beginning at a Red oak tree at the mouth of the new entry Running thence to Baileys line on the top of the hill thence by Baileys line to a point south the old opening thence by old opening around the point to place of Beginning To make three acres of coal Excepting what has been taken out, the aforesaid, Jas. M. Linn Reserves the use of the new entry.
    “ The said F. F. Chalfant is to not sell anj^ coal only what he hauls himself or have hauled also cannot sell the said three acres of coal to any person or persons But Jas. M. Linn his heirs or assigns the said F. F. Chalfant has the privilege of erecting a coal scaffold Between the old Bank and the point opposite Brick house But has no other privilege of surface Said F. Chalfant has the privilege dumping the debris over the Road : In testimony whereof the parties have hereunto set their hands and seals.”
    F. C. Clialfant died on April 21, 1902. At the trial there was a verdict for plaintiff subject to the question of law reserved, whether the article of agreement between Linn and Chalfant was executory or executed.
    The court subsequently entered judgment for defendants non obstante veredicto.

      Error assigned was in entering judgment for defendants non obstante veredicto.

      W. J. Sturgis, with him George D. Howell, for appellant.—
    The rule requiring the word “ heirs ” to convey land in fee, is purely technical, and the reasons which supported the rule no longer exist: Defraunce v. Brooks, 8 W. & S. 67.
    The fact that the contract contemplated that Chalfant would mine out and totally destroy the corpus of the thing contracted about, is of itself a circumstance, sufficient to settle the construction to be given this informal instrument: Kenrick v. Smick, 7 W. & S. 41.
    The parties intended their contract to be what they called it, an “article of agreement,” and not an executed deed: Sheaffer v. Sheaffer, 37 Pa. 525; Stewart v. Lang, 37 Pa. 201,

      A. 0. Hagan, with him J. O. Worh, for appellees, cited:
    Gray v. Packer, 4 W. & S. 17; Bortz v. Bortz, 48 Pa. 382; Cook v. Trimble, 9 Watts, 15; Hepburn v. Snyder, 3 Pa. 72.
    June 22, 1905:
   Per Curiam,

The agreement upon which the plaintiffs’ title is founded cannot reasonably be construed as more than a personal license. Though called by the parties a sale the vendee is “ not to sell any coal only what he hauls himself or have hauled,” and he is also restricted from selling the “ said three acres of coal to any person or persons but Jas. M. Linn (the vendor) his heirs or assigns.” The words of the grant are in presentí, the description of the land complete, and the -receipt is of the consideration money in full. There is no indication of any further instrument being in contemplation, and the restrictions in this one are incompatible with a conveyance in fee, but "entirely in harmony with a personal license.

But even if considered as a conveyance there are no words of inheritance and on the death of the grantee nothing passed to his heirs.

Judgment affirmed.


author: Pek Ctjkiam,

text:
    Boop v. Laurelton Lumber Company, Appellant.

      Negligence—Sawmill—Master and servant—Defective machinery.

    In an action by an employee against the owners of a sawmill to recover damages for personal injuries sustained by reason of a defective fly wheel, persons who have been engaged in the running and operating of sawmills for many years, although not in the repair of fly wheels, may testify that it was not good practice to repair fly wheels, but when they were broken they should be consigned to the scrap heap. In such a case the burden is upon the defendants to show that it was the ordinary and usual custom for sawmill operators to place wheels broken as the one in question was, in their mills, and not simply to show that the wheel was repaired as wheels are usually repaired in machine shops.
    Argued May 9, 1905.
    Appeal, No. 110, Jan. T., 1905, by defendant, from judgment of O. P. Union Co., Sept. T., 1904, No. 43, on verdict for plaintiff in case of Bénjamin Boop by his next friend and father, Morris Boop, v. Laurelton Lumber Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before McClure, P. J.
    At the trial it appeared that plaintiff, an employee of the defendant, was seriously injured on May 24, 1904, while working in defendant’s sawmill. There was evidence which tended to show that the accident was caused by a broken fly wheel which had been improperly repaired.
    When John Anderson, a witness for plaintiff, was on the stand he was asked this question :
    Mr. Johnson: Do you know the custom as to making repairs about engines ? A. Yes, sir; about engines.
    The Court: Well, wheels? A. Well, as I stated before, I never saw any repaired where I worked, never saw a fly wheel repaired; never had an occasion for it; I have seen them broken but never repaired them. They throwed them out on the scrap pile.
    The Court: I think we will allow the question to be asked; the man has been about sawmills many years. Defendant excepts, and bill sealed. [1]
    Anderson and other witnesses were permitted under objection -and exception to testify that broken fly wheels even when repaired were not safe for use in sawmills. [2-15]
    The court refused binding instructions for defendant. [21]
    Verdict and judgment for plaintiff for $2,191.
    On motion for a new trial McClure, P. J., filed the following opinion:
    This case in all its features was essentially one for a jury. The closest question probably for them to decide was whether or not the broken wheel or the running away of the engine caused by the slipping or breaking of the main belt was the proximate cause of the accident 'to the plaintiff. There was no direct evidence as to just how the belting became deranged, as the belts were off when the witness Keister saw the engine immediately before the accident. The jury, however, has found that the defective wheel was the proximate cause and there was sufficient evidence to justify this finding. Serious objection was raised to the admission of the testimony of some of the plaintiff’s witnesses on the 'ground that they had not shown themselves to have been experts and hence their opinion was not admissible. From the defendant’s point of view this may have been true, but the plaintiff’s contention was that it was not good practice to repair fly wheels, and therefore the want of experience of the witnesses in making the repairs would not militate against their competency as witnesses, they having been engaged in the running and operating of sawmills and other machinery for many years. The plaintiff’s theory was that no repairs should be made to a fly wheel, but when broken as this one was, it should be consigned to the scrap heap, as Mr. Townsend testified.
    While some of the witnesses had greater experience than others, in the operation of machinery of the character in question, they all had sufficient to permit them to testify as experts.
    Another position taken by defendant’s counsel was that the plaintiff failed to show that this wheel was not repaired in accordance with the ordinary usage of the business, and that; when the defendant proved by its witnesses that this wheel was repaired the way wheels of this kind are usually repaired, the plaintiff should not have been permitted to recover. It is, of course, well settled in Pennsylvania that an employer is only bound to furnish machinery and appliances that are of ordinary character and reasonable safety, and the former is the conclusive test of the latter. Whatever is according to the general, usual and ordinary course adopted by those in the same business is reasonably safe within the meaning of the law : Kehler v. Schwenk, 144 Pa. 348 ; Delaware River Iron Ship Building -Co. v. Nuttall, 119 Pa. 149; Higgins v. Fanning & Co., 195 Pa. 599.
    This rule fixing the usage of the business as the measure of safety applies to the business in which the parties are engaged —here the sawmill business. Hence to make the rule applicable to the case in hand it should be shown, not that the wheel was repaired as fly wheels of this character are usually repaired in machine shops for whatever use they may happen to bé put, but whether broken and repaired fly wheels such as this are generally, usually and ordinarily installed and kept in position by the owners of sawmills. The evidence shows that sawmill engines are prone to run away. This is no doubt caused by the variation of the load upon the engine. Part of the time, when the saws are not making a cut, all the engine has to do is to turn the shafting. Immediately when the saw strikes the log, all of the power of the engine is required. The tension is thus thrown suddenly and heavily upon the main belt, and the tendency is either to break it or throw it from the wheel. The main belt thrashing around either breaks or throws the governor belt off of the pulley, and there is nothing to control the engine.
    This, of course, is much more likely to occur in small portable mills, but the evidence points to the fact that it is not an unusual occurrence in all sawmills for the engine to speed up beyond the limit required for the operation of the mill. Accordingly it becomes the duty of the owners, to provide machinery that is reasonably safe under such circumstances. As we have said, to relieve the defendant by the rule of the ordinary usage of the trade, it should appear that it was the ordinary and usual custom for sawmill operators to place wheels broken as this one was in their mills, and not simply to show that the wheel was repaired as wheels are usually repaired in machine shops.

      Errors assigned among others were (1--15) rulings on evidence, quoting the bill of exceptions; (21) in refusing binding instructions for defendant.

      George B. Reimensnyder, with him Philip B. Linn, for appellant.

      Albert FT. Johnson and Andrew A. Leiser, with them Andrew A. Leiser, Jr., for appellee.
    June 22, 1905 :
   Pek Ctjkiam,

This judgment is affirmed on the opinion of the court below refusing a new trial.