text:
    Equitable Building & Loan Association v. Thomas, Appellant.

      Mortgage — Satisfaction of mortgage — Junior mortgage — Purchase of land by owner of the first mortgage — Division of land.

    Where a mortgage is given upon a tract of land, and subsequently that land is divided and becomes the property of two different owners, and the property of one is sold upon a judgment which is a junior to the lien of the mortgage covering the entire tract, and the owner of the mortgage covering the entire tract purchases the property at sheriff’s sale, such purchaser satisfies the mortgage on his own property only, but does not satisfy that on his neighbor’s property.

      Building and loan associations — Bidding on loan — Principal and agent— Ratification of agency — Estoppel.
    Where at a meeting of a building and loan association a person bids on a loan for a member without authority, and the member subsequently directs in writing the association to appropriate a portion of the loan to premiums bid for the loan, the member is estopped thereafter from denying the authority of the agent to make the bid.
    Argued Oct. 29,1906.
    Appeals, Nos. 119 and 150, Oct. T., 1906, b_y defendants, from order of O. P„ No. 3, Allegheny Co., Aug. T., 1901, Nos. 161 and 361, discharging rule to open judgment in case of The Equitable Building & Loan Association v. David Thomas and Margaret Thomas.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Pule to open judgment.
    Evans, L, filed the following opinion:
    This is an application to open a judgment entered upon a bond accompanying the mortgage executed by the defendants to the plaintiff building and loan association, and now assigned by the plaintiff association to the Farmers & Mechanics Building & Loan Association. Subsequent to the execution of tbe bond and mortgage in question, the defendant sold a part of the property covered by the lien of the mortgage and the purchaser of that property executed a bond and mortgage to the Farmers & Mechanics Building & Loan Association, the use plaintiff in the judgment in dispute. Default was made on the mortgage to the Farmers and Mechanics association, foreclosure had, and the property bought in by the plaintiff. Prior to the sale of the property on the judgment recovered by the Farmers and Mechanics association, it purchased the judgment entered upon the bond accompanying the mortgage given to the Equitable Building & Loan Association by the defendants in this case. The ground upon which defendants ask to have the judgment opened is, first, that in the purchase of a part of the property covered by the judgment at bar on a junior lien the Farmers and Mechanics association is compelled to satisfy the judgment entered upon the bond accompanying the mortgage given by the defendants to the Equitable Building & Loan Association; and, second, that in the mortgage given to the Equitable Building & Loan Association there was no bidding for the money at the time the money was loaned by the equitable association to the defendants, and therefore the $1,200 premium charged is usury. The proposition that the purchase of only a part of the land covered by the mortgage to the Equitable association by the assignee of that mortgage at sheriff’s sale had upon a junior incumbrance, satisfied the mortgage to the Equitable Building & Loan Association, is not sustained by the authorities cited by the petitioner. If the identical land which is subject to a mortgage is bought at sheriff’s sale on a junior incumbrance, by the mortgagee of the first mortgage, that purchase would satisfy the first mortgage because the purchaser at a sale upon the junior incumbrance takes the land subject to the first mortgage and the payment of the first mortgage is part of the consideration. But the courts of this state have never held, and we are of the opinion that they never will hold, that where a mortgage is given upon a tract of land and subsequently that land is divided and becomes the property of two different owners and the property of one is sold upon a judgment which is a junior to the lien of the mortgage covering the entire tract, if the owner of the mortgage covering the entire tract purchase the property at sheriff’s sale, he not only satisfies the mortgage on his own property but satisfies that on his neighbor’s. property. This is the contention here on the part of the defendant, and it is not sustained either by decisions or principle.
    The question as to whether the amount charged as premium by the Equitable Building & Loan Association in its loan to the defendants is usury, depends upon the question whether there was bidding done on behalf of the borrower when the loan was made by the association, and this is a disputed question of fact. George W. Flowers, Esq., a member of the bar, who was at the time attorney for the budding and loan association, testifies that he was authorized by the defendants to bid for them at the sale of the money of the association, and. that he did so bid, and the premium charged was the premium that he bid. The fact that he did bid and that he bid the amount of the premiums charged is not denied, but it is denied by Thomas and his wife that Flowers was authorized by them, or by others for them, to represent them and bid for the money. Subsequent to the making of the loan and the execution of the mortgage, Mrs. Thomas signed an order directed to the Equitable Building & Loan Association giving it directions how to pay out the proceeds of the loan, which the Equitable Building & Loan Association had made to her. This instruction was in writing, signed by Mrs. Thomas, and witnessed by her husband, and directed to the building and loan association to appropriate of that loan the amount of $1,200 to premiums bid for the loan. If as a fact Flowers did bid for Mrs. Thomas without authority, then her subsequent conduct is ratification of his agenc3q and she may not now set up the fact that Flowers in assuming to represent her in bidding for this loan was not her authorized agent.
    January 7, 1907:
    Bule to open judgment discharged.

      Wm. E. Schoyer, of Schoyer & Hunter, for appellants.
    Where a portion of mortgaged property is sold and the purchase price is unpaid, the sold portion must be first taken to satisfy overlying liens, to the extent of the unpaid purchase money: Turner v. Flenniken, 164 Pa. 469; Blank v. Eichelberger, 6 W. N. C. 25 ; Watson v. Neal, 38 S. C. 90 ; Steele v. Andrews, 19 N. J. Eq. 409; Hansell v. Lutz, 20 Pa. 284; Com. v. Wilson, 34 Pa. 63 ; Dollar Savings Bank v. Burns, 87 Pa. 491; Cock v. Bailey, 146 Pa. 328; Fuel Co. v. Gas Co., 162 Pa. 78; Bryar’s App., 111 Pa. 81; Zeller v. Henry, 157 Pa. 1; Stiles’s App., 95 Pa. 122; Pownall v. B. & L. Assn., 34 P. L. J. (N. S.) 190; Roeser v. German Natl. B. & L. Assn., 36 P. L. J. (N. S.) 49.
    When there is no bidding for a loan, premiums charged are usurious, and only the amount loaned with legal interest can be recovered: Gillespie v. Weiss, 8 Pa. Dist. Rep. 170; Darlington’s App., 86 Pa. 512.
    An agreement to pay usury cannot be ratified: Marr v. Marr, 110 Pa. 60.

      C. L. Stevenson and J. M. Stoner,
    for appellee, were not heard.
   Per Curiam,

Order affirmed on the opinion of the court below.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Kennedy v. Pittsburg & Lake Erie Railroad Company, Appellant.

      Wills — Gift to widow — Real and personal estate — Consumption of principal — Power to convey.

    Testator gave to his widow “all my (his) estate both real and personal .... during her natural life with privilege to use part of the principal if she should need it ... . and at the decease of my wife I will and direct my executor to sell .... all my real and personal estate not used by my wife in her lifetime, and divide the proceeds, etc.” Held, that the widow had a right to consume the principal of both the real and personal estate, and consequently had the right to convey the real estate.
    Argued Oct. 29, 1906.
    January 7, 1907:
    Appeal, No. 12, Oct. T., 1907, by-defendant, from judgment of O. P. No. 1, Allegheny Co., Dec. T., 1906, No. 286, for plaintiff on case stated in suit of Eliza Ann Kennedy v. Pittsburg & Lake Erie Railroad Com.pany.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Case stated to determine the title to real estate.
    Brown, J., filed an opinion in which he held that plaintiff had a right to make a conveyance of real estate under the provision of the will quoted in the opinion of the Supreme Court. He accordingly entered judgment for plaintiff for $2,000.

      Error assigned was the judgment of the court.

      William M. Robinson, of Reed, Smith, Shaw & Beal,

    for appellant, cited: Cox v. Sims, 125 Pa. 522 ; Fox’s Appeal, 99 Pa. 382; Follweiler’s Appeal, 102 Pa. 581; Taylor v. Bell, 158 Pa. 651.

      James T. Buchanan, for appellee.
   Per Curiam,

The testator gave to his widow, the plaintiff, all my [his] estate both real and personal .... during her natural life with privilege to use part of the principal if she should need it ... . and at the decease of my wife I will and direct my executor to sell .... all my real and personal estate not used by my wife in her lifetime, and divide the proceeds,” etc. This language does not admit of the least doubt of what the testator in fact meant, and his actual intent is his legal intent. He gave the power to use the principal in words in themselves and in their context equally applicable to both the real and the personal estate, and then he clinched that meaning by the direction to the executor at her death to sell “ all my real and personal estate not used by my wife in her lifetime.” He thus twice classed the real and personal estate together, made no distinction between them in his provision for his wife’s power over them, and intended that no such distinction should be made.

The power to use the principal means the power to consume, and the power to consume real estate necessarily includes the power to convey. ,

It is argued by appellant that the precedents have construed similar language as applicable only to the personal estate, and Fox’s Appeal, 99 Pa. 382; Follweiler’s Appeal, 102 Pa. 581; Cox v. Sims, 125 Pa. 522 and Taylor v. Bell, 158 Pa. 651, are cited in support of this position. Put in none of these cases did the will contain the efficient language of the present, classing the real and personal property together as the subject of the pbwer to use. In all of them the power to use, i. e., convey the real estate, was sought to be inferred from the gift over of “ what remains,” pr “what shall be left” or “so much as may remain unexpended ” or similar phrases. None of such cases therefore is a close precedent as to the language of this will, even if we overlook, as we certainly never should, the caution of Sharswood, J., in Fox’s Appeal, 99 Pa. 382. “ Every will is to be construed from its four corners to arrive at the true intention of the testator. Decisions upon other wills may assist, but cannot control the construction.”

Judgment affirmed.


author: Mr. Justice Elkin,

text:
    Strasser v. Steck, Appellant.

      Contract — Option—Coal lands — Construction of contract.

    An owner of options on coal land having a right to sell the same, entered into an agreement in writing by which he agreed to “grant, bargain and sell, all the coal and land owned and optioned by him.” The agreement further provided as follows: “In consideration whereof said second party, for himself or his assigns, agrees to pay to said first party the sum of One dollar, the.receipt whereof is hereby acknowledged, in full for this option, and in the event of this agreement being absolute by the election and notice above mentioned, then and not otherwise, said second party agrees to pay. said first party the sundry sums between the prices mentioned in said options to the individual farmers and the sum of forty dollars per acre for each and every acre which may be taken up, and to which good titles are to be had, payable as follows: When the deeds are delivered from the present owners the payments to the farmers to be as stipulated in the options and the same may be determined by surveys.” The purchaser subsequently elected, to accept the option, and so notified the seller. The purchaser failed to exercise his right to purchase from the farmer's after he became the owner of the options. Held, that he was liable to the seller for the difference between the option price and $40.00 per acre.
    Argued Oct. 30, 1906.
    Appeal, No. 26, Oct. T., 1906, by defendant, from, judgment of C. P. No. 3, Allegheny Co., Feb. T., 1902, No. 405, on verdict for plaintiff in case of L. S. Strasser v. Amos Steck.
    Before Mitchell, O. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit to recover on a contract of sale. Before Evans, J.
    From the record it appeared that the contract between the two parties was as follows:
    “ This optional agreement, made February 21,1901, between L. S. Strasser, of New Kensington, Westmoreland'county, Pennsylvania, party of the first part, and Amos Steck, of Pitts-burg, Pennsylvania, party of the second part,
    “ Witnesseth : That said party of the first part, for the consideration hereinafter mentioned, covenants and agrees to grant, bargain and sell to the said second party, all the coal and land owned and optioned by him, said party of the first part, situate in Jefferson and adjoining townships, in the county of Washington, state of Pennsylvania; said options calling for an acreage of 2,237 acres, more or less, and to convey the same to said party of the second part, or his assigns, by deeds of general warranty in fee simple and free of all incumbrances, provided that on or at any time before March 2, 1901, said second party gives to said first party notice in writing that the said second party elects to accept the property described in said options, a schedule of which is hereto attached and made part hereof, said property being more particularly described in said options.
    “ In consideration whereof said second party, for himself or his assigns, agrees to pay to said first party the sum of $1.00, the receipt whereof is hereby acknowledged, in full for this option, and in the event of this agreement being absolute by the election and notice above mentioned, then and not otherwise, said second party agrees to pay said first party the sundry sums between the prices mentioned in said options to the individual farmers and the sum of $10.00 per acre for each and every acre which may be taken up, and to which good titles are to be had, payable as follows r When the deeds are delivered from the present owners the payments to the farmers to be as stipulated in the options and the same may be determined by surveys.
    “ This agreement to be binding upon and inure to the benefit of the heirs, execjitors, administrators and assigns of the parties hereto.”
    On March 15, 1901, Steck notified Strasser in writing of his election to take and accept the coal franchises and privileges, which had been granted by the landowners under the options. Steck, however, failed to exercise his right to purchase from the farmers, and denied any liability to Strasser. It appeared that the, amounts mentioned in the various options ranged from $28.00 to $35.00 per acre.
    Plaintiff presented the following point:
    1. That if prior to and at the time of the making of the contract between the plaintiff and defendant, the defendant directed the plaintiff that upon the making of deeds of conveyance for the several tracts of coal.referred to in plaintiff’s statement of claim, that such deeds should be made directly from the several owners to the defendant, and if the jury further find that the defendant continued from that time down to August 3, 1901, to state to the plaintiff that the deeds should be drawn, and that the plaintiff acquiesced therein, then such evidence is to be construed as a construction of the contract entered into between the parties and defendant. Answer: Affirmed. [5]
    The court charged in part as follows:
    [If you find for the plaintiff, then he is entitled to recover what he lost. He alleges that he lost these options, as I understand the testimony, by reason of this conduct on the part of the defendant; that is, postponing the carrying out of this during the summer, and then towards the end of the options (I don’t remember how soon they expired, but my recollection is, within a month from August 3), that he then broke his contract, and by reason of that the plaintiff lost his rights under the options. If that be true, if you find that by reason of a breach of this contract on the part of the defendant, the plaintiff lost all rights that he had under those options and was compelled to surrender them, then he is entitled to recover what he lost, and what he lost was the value to him of those contracts, the money that he would make out of those contracts provided the defendant had carried out his part of this contract of purchase. That means, ordinarily, the difference between the purchase price and any expenses which were attached to it by reason of the plaintiff’s duties in carrying out his contract.] [6] ^
    [If you find that the plaintiff is entitled to recover because the defendant made an unreasonable demand, and because of the plaintiff’s, inability to comply with that unreasonable demand, he declared the contract off, then if the plaintiff is entitled to recover, he is entitled to recover whatever he lost. If he lost these options because of that, then he is entitled to recover the value of those options to him provided they had been carried out.] [7]
    Yerdict and judgment for plaintiff for $20,358.14. Defendant appealed.

      Errors assigned, were (5-7) above instructions, quoting them.

      W. B. Rodgers, with him H. A. Davis and Paul H. Gaither,
    for appellant, cited: Evrit Wightman v. Bancroft, 22 Ohio, 172.

      January 7, 1907:

      Sol. Schoyer, Jr., with him John P. Hunter,

    for appellee, cited: Britton v. Stanley, 4 Wharton, 114; Kirker v. Kaufmann, 31 P. L. J. (N. S.) 205 ; Eberz v. Heisler, 12 Pa. Superior Ct. 388 ; Carpenter v. Holcomb, 105 Mass. 280; Frick’s App., 101 Pa. 485 ; People’s St. Ry. Co. v. Spencer, 156 Pa. 85 ; McClintock v. South Penn Oil Co., 146 Pa. 144.
   Opinion bit

Mr. Justice Elkin,

If the agreement entered into between the parties to this action was a contract for the sale of land, the judgment must be reversed ; if'it was a contract for the sale of options, the case was properly disposed of in the court below. Prior to February 21,1901, when the contract in question was made, appellee had procured options from fifteen landowners giving him the right to elect to purchase the coal underlying their respective properties within certain limits and at certain fixed prices. In addition to the optioned coal, he owned or controlled a couple of tracts in his own right. The appellant had been engaged in buying and selling coal lands, coke plants and coal operations for a long period of years and was familiar with the prevailing method of handling such deals through options. He knew that the optioned coal did not belong to appellee and that the only interest Strasser had to sell was his right or privilege to elect to purchase under his options. This, however, was a substantial interest in land which could be conveyed to a vendee: Kerr v. Day, 14 Pa. 112; People’s Street Railway Company v. Spencer, 156 Pa. 85. Appellee had the legal right to sell his options. Did he do so? The contract itself must furnish the answer. We think the second clause clearly indicates that it was a contract to sell the options. This clause is as follows, to wit: “ In consideration whereof said second party for himself, or his assigns agrees to pay to said first party the sum of one ($1.00) dollar, the receipt whereof is hereby acknowledged, in full for this option, and in the event of this agreement being absolute by the election and notice above mentioned, then and not otherwise, said second party agrees to pay said first party the sundry sums between the prices mentioned in said options to the individual farmers and the sum of forty ($40.00) dollars per acre for each and every acre which may be taken up and to which good titles are to be bad, payable as follows: When the deeds are delivered from the present owners, the payments to the farmers to be as stipulated in the options and the same may be determined by surveys.” Here, then, in express terms it is provided that when the agreement becomes absolute by election and notice, which were subsequently made and given, appellant agreed to pay appellee, not $40.00 an acre the full price agreed upon for the coal, but the difference between the optioned price and $40.00 p'er acre. In other word's, this difference represented the profit and compensation of the appellee in taking up the options. Again, it is provided, that when the deeds are delivered, not by appellee to appellant, but from the “ present owners,” the “ farmers ” are to be paid “ as stipulated in the options.” Paid by whom? Clearly by Steck, the purchaser of the options. His covenant was to pay, first, Strasser, the difference between the prices fixed in the options and $40.00 per acre, and, second, the farmers according to the terms of the options. All of which is inconsistent with the contention that the optional agreement was a contract whereby appellee agreed to sell and convey to appellant the coal lands under option.

If Steck was contracting to purchase the optioned coal land from Strasser why did he insert in the agreement the covenant about the delivery of the deeds from, and the payment of the purchase money to, the “farmers” ? It is true appellee did, in the first clause of the agreement, covenant to grant, bargain and sell the coal land owned and optioned by him, and these words are ordinarily used in the conveyance of absolute title, but they may be used in the conveyance of any estate, or interest, which may be transmitted to a vendee, and it follows, that appellee had such an interest under his options as could be granted, bargained and sold. In the present case the legal effect of the whole contract was to grant, bargain and sell options. In the options with the landowners, it was provided that the conveyance should be by “ good and sufficient deed,” while in the optional agreement between appellant and appellee the covenant was to convey by deed of general warranty free of all incumbrances. It is strongly urged that Steck by this covenant contracted for the warranty of Strasser and not for that of the landowners. If this covenant stood alone, without explanation or qualification by other parts of the contract, there could be no doubt as to the correctness of this position. It, however, must be read and understood in connection with the whole contract and the subject-matter about which the parties were contracting. When so construed there can be no doubt that the intention of the parties as gathered from the four corners thereof was that if any landowner failed to convey to appellant by deed of general warranty free of all incumbrances, or other satisfactory conveyance, appellee would not be entitled to receive the difference between the optioned price and $40.00-per acre as his compensation for that option. If the title was not good according to the covenants of appellee, the appellant might refuse to elect to take, and in that event, appellee would not be entitled to receive the consideration or compensation provided for him in the optional agreement. Throughout the whole transaction appellant knew that appellee did not own the coal lands, and only had the options to purchase them, and this is what he bargained for. When appellant on March 15, 1901, notified appellee in ■writing of his election to take and accept the coal franchises and privileges, which had been granted by the landowners under the options, the optional agreement was exercised and the rights and liabilities of the parties thereto were fixed thereby. He then became the equitable owner of the options, and could enforce his rights therein, not only against appellee, but also against the landowners: Frick’s Appeal, 101 Pa. 485. If he failed to exercise his right to purchase after he became the owner of the options, the fault was his, not that of appellee. This being our construction of the contract, we can see no error in the submission of the case to the jury by the learned trial judge in the court below as to the measure of damages and all other questions involved in the controversy.

Judgment affirmed.


text:
    Powelson v. United Traction Company, Appellant.

      Negligence — Street railways — Getting on car — Moving car.

    In an action against a street railway company to recover damages for personal injuries, the case is for the jury, where the evidence for the plaintiff, although contradicted, tended to show that plaintiff boarded a summer car; that when he saw the car coming about 100 feet distant he waved his hand to the motorman to stop, who at once put on the brakes so that when it reached the plaintiff it had almost stopped, and he stepped up on the running board and was about to go into the body of the car after the car had actually stopped, when the conductor rang the bell for the car to start; that it was instantly started with a jerk and threw him off and injured him.
    Argued Oct. 30, 1906.
    Appeal, No. 35, Oct. T., 1906, by defendant, from judgment of O. P. No. 3, Allegheny Go., Peb. Term, 1901, No. 43, on verdict for plaintiff in case of James Powelson v. United Traction Company.
    Before Mitchell, O. J., Pell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. See 204 Pa. 474.
    The facts do not substantially vary from those brought forth in the previous trial, except that plaintiff testified that after he had stepped on the running board, the car had actually stopped.
    The court refused binding instructions for defendant.
    Yerdict and judgment for plaintiff for $7,500. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

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

      Rody P. Marshall, with him Thomas M. Marshall and John C. Haymaker, for appellee.

      January 7, 1907:
   Per Curiam,

Counsel for appellant in their paper-book say with great frankness that this appeal has been taken with the direct purpose of having this court review the several cases relating to negligence in getting on or off a moving car, and declare that the general rule that such act is negligence per se is the only rule and that there are no exceptions to its operation.

The court have given the cases attention and have not been 'convinced that they need any substantial modification. The general rule is a good rule, the exceptions are not many and they will not be lightly increased. But to say that no exception shall be permitted under any circumstances would be to ignore the infinite variations of human action underpressure of emergencies or doubt, and to reduce the elastic principles of the common law to the rigidity of a penal statute. But how clearly the exceptions must be shown to be such is made manifest by the cases of Hunterson v. Traction Co., 205 Pa. 568 ; Bainbridge v. Traction Co., 206 Pa. 71, and Boulfrois v. Traction Co., 210 Pa. 263.

This was a very close case but when it was here before, 204 Pa. 474, it was held to be one for the jury. It was tried by the court below on the lines of the opinion by our late Brother Dean and we have seen nothing to change our views.

Judgment affirmed.


author: Mr. Justice Potter,

text:
    Small v. Pittsburg Railways Company, Appellant.

      Negligence — ■Street railways — Runaway car — •Evidence.
    In an action against a street railway company to recover damages for personal injuries resulting to the plaintiff from being struck by a piece of wood which was torn from a telephone pole by the impact of a runaway electric car with the pole, the evidence showed that plaintiff was standing on a railroad station platform near the pole in question. The railway tracks ran down a public street at a grade of six per cent for a considerable distance, and terminated immediately opposite the station. The car in question was in good condition, properly equipped with brakes and was provided with sand; but the tracks were so incased in ice, that when the motorman attempted to apply the sand, the wheels did not take hold even when reversed. In consequence the car slid down the grade. There was no evidence that the motorman was not a prudent man, and it was shown affirmatively that he was of long experience in running electric cars. The motorman had no difficulty when he started on the grade, and it was not until he was a considerable distance down the grade that he began to lose control. He testified that he thought that he would have no difficulty in taking the car down the whole distance. The testimony showed that the •weather at the time was of extraordinary character, and that owing to the ice on the rails the sand could not cling to the rail. Held, that there was no evidence of defendant’s negligence to submit to the jury.
    Negligence is not to be presumed upon the happening of an occurrence which is the result of exceptional and extraordinary conditions.
    Argued Oct. 30, 1906.
    January 7, 1907 :
    Appeal, No. 42, Oct. T., 1906, by defendant, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1902, No. 1,014, on verdict for plaintiff in case of Frank E. Small v. Pittsburg Railways Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Brown, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $6,900. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      James C. Gray, with him Clarenee Burleigh and William A. Challener, for appellant.

      John C. Haymaker, with him Thomas E. Finley, for appellee.
   Opinion by

Mr. Justice Potter,

This was an action of trespass brought by Frank E. Small against the Pittsburg Railways Company, to recover damages for an injury alleged to have been sustained by reason of the negligence of the defendant. From East McKeesport to Wilmerding the street railway of the defendant company runs on the public street for a distance of a mile and a quarter, upon a grade of six per cent. At the foot of the slope is the Wilmerding station of the Pennsylvania Railroad. The tracks of the street railway terminate at that point, directly across the street from the station.

On the evening of January 29, 1902, shortly before eight o’clock, the plaintiff, who was standing on the station platform, was struck by a piece of wood broken from a nearb\r telephone pole. A car of defendant company had gotten beyond control while coming down the Wilmerding hill, and had left the track at the terminus, crossed the street, and collided with the telephone pole, breaking it and running against the wall of the railroad station. A fragment of the broken pole was thrown against plaintiff, and inflicted serious injuries.

The testimony shows that the car escaped from control while coming down the hill, by reason of the slippery condition of the tracks upon the grade. Rain had fallen, which froze to the rails as it fell. The car was in good condition, and properly equipped with brakes, and was provided with sand; but the tracks were so incased in ice, that when the motorman attempted to apply the sand, the wheels would not take hold, even when reversed. In consequence, the car slid down the grade.

Upon the trial, as the court said, there was no evidence of improper brakes, machinery or appliances. The only matter which the court submitted to the jury was the conduct of the employees in charge of the car, in attempting to take it down the hill when the tracks were icy. He instructed the jury that, if prudent employees would have considered it dangerous to take the car down at that time, and would not have taken the hazard, then the employees in charge of the car were guilty of negligence, and the plaintiff was entitled to recover. But the difficulty in sustaining this submission of the question, is that there is no evidence that the employees were not prudent men, of long experience, and yet they did as a matter of fact conclude that it was reasonably safe, under the circumstances, to attempt to take the car down.

It will be remembered that the plaintiff was not a passenger on the car, but was standing upon the public highway near the terminus of the tracks. The car which ran into the telephone pole and broke it, thus inflicting injury upon the plaintiff, was the second of the two cars which, by reason of the ice on the rails, escaped from control at the point in question. The motorman of the second car, which is the one. which caused the injury to the plaintiff, had no knowledge of the fact that the car immediately preceding had gotten beyond control, and he started down the hill ■ a few minutes after-wards. He had no difficulty until his car had proceeded a considerable distance, when he found it wras beyond control. He used every effort to stop the car, but was unable to do so. He tells the story thus in his own words: “ I started off so slow that any six years old boy could get on that car, from the top of the hill until I got within about two hundred feet of the bridge that goes under the track. Then I began to notice that the brakes would not hold it any more; it began sliding. Then I threw off the brake and reversed the car, and pulled the sand, and I found there was toó much ice on the rail for the wheel to take hold on the sand. It just brushed the sand off when it was revolving in the backward motion. I kept it on reverse all of the way, and when I got to the stone quarry the trolley jumped, off. Then I was in darkness from there down to the foot of the hill-and kept using all force from there on down to the foot of the hill, expecting every minute I would get control of it again, but I didn’t until I ran into the station.” Fryan, the motorman, had many years’ experience, and had been engaged two years and a half on that particular line. He had brought his car up the hill over the same track only a little while before, without trouble or difficulty; and, after proceeding a short distance along the road, he changed cars and started back again towards the foot of Wilmerding hill.

The evidence shows that, before entering upon the down grade, he tested his brakes, found they were in good condition, and tested his sand, and found that the supply was good, and that it was running freely. There is no suggestion in the evidence that anything was wrong with the car, or that the motorman did anything which he ought not to have done, or left anything undone which he should have done, in the management of his car. The sole fault which can be imputed to him, under the evidence, is that he erred in his judgment when he started his car down the grade. As the sequence showed, lie did underestimate the difficulty caused by the presence of ice on the rails. The motorman of the car immediately ahead of him made the same mistake. But the exercise of judgment —even though it be mistaken judgment — is not negligence. Under ordinary conditions of the weather, and so far as his experience showed, under extraordinary conditions, he would have been safe in taking his car down that hill. He had done it many times before, and his experience certainly fitted him to judge as to the conditions. He occupied the place of greatest danger on the front platform, and regard for his own safety would naturally quicken his instinct to anticipate danger, if, in his judgment, there had been any real occasion for it.

The testimony is clear, that the accident was caused by conditions most unusual. When asked if he had ever experienced, during the two and a half years that he had been running over that road, such a night as that of the accident, the motorman replied: “ No, I told you I never experienced it in twenty-two years before.” The testimony of the defendant’s superintendent also was that the night was bad, raining, sleeting, icy; the worst night he had ever seen in all his experience in street railroading.

Negligence is not to be presumed upon the happening of an occurrence which is the result of exceptional and extraordinary conditions. It must be presumed that in a hilly country, such as that in the region of Pittsburg, some risks must be taken in the operation of street cars. It will not do to stop them at every change in the weather. The public need for them is greatest in bad weather. The knowledge and experience of the motorman did not suggest to him any undue risk of accident, and we cannot say, or permit a jury to conjecture, that because an accident did happen in' this case, it affords good ground for charging the motorman with negligence, because he did not foresee that the car would get beyond control, and did not refuse to start it down the hill. The theory upon which this action Avas brought, as shown by the statement, Avas not that the motorman erred in his judgment. There is no such claim made. The plaintiff charged only that the car was improperly operated, and that the employees were incompetent and careless, and that, oAving to the careless management of the car, and by reason of deficient machinery and lack of pi’oper brakes, the car became unmanageable. None of these charges were supported by evidence. There was no testimony whatever to show that the motorman was incompetent, or that he was remiss in any way in the operation of the car, or that the brakes or machinery were deficient. The only thing which, in the opinion of the trial judge, could be submitted to the jury ivas, whether the judgment exercised by the motorman in deciding to run his car down the hill, was bad. But no witness was produced who testified that the situation at the brow of the hill, as it appeared before the accident, was such as to deter a prudent motorman from attempting to take his car down. The finding of the jury in this respect could not have been based on evidence, but only on conjecture. At most, it would be their judgment after the accident as against that of an experienced motorman, upon the circumstances as they existed before the accident, and in a situation, too, where his own safety was at stake in the course to be pursued. Hindsight is better than foresight, no doubt, and it is easy to criticise after the event; but the law holds men responsible only for such consequences as can, in the exercise of reasonable prudence, be foreseen.

We feel that the facts of this case negative any inference of negligence arising out of the mere attempt upon the part of the motorman to operate the car, proceeding as he did, slowly and cautiously, feeling his way, as it were, until unfortunately he found by trial that the conditions were so unusual, that, contrary to his expectation, based upon long experience, the sand would not enable him to control his car.

We are unable to find in this record, any evidence of negligence upon the part of the defendant company, sufficient to justify the submission of the case to the jury. This plaintiff was not upon the car, and was not therefore entitled to the benefit of the presumption which arises in case of injury to a passenger.

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


text:
    Crooks v. Pittsburg Railways Company, Appellant.

      Negligence — Street railway companies — Crossing in front of car — Pedestrians — Contributory negligence.

    In an action against a street railway company to recover damages for death of plaintiff’s husband no recovery can be had where it appears from the uncontradicted testimony that the deceased attempted to cross the defendant’s tracks, and was struck by a car which he intended to take as a passenger, and that he could have taken but one, or at the most two, steps from the time he entered upon the line of the track until the car caught him in the space between the rails.
    Where a foot passenger walks or steps directly in front of an approaching car, and is struck at the instant he sets his foot between the rails, there is but one inference which can reasonably be drawn from that fact, and that is the inference of contributory negligence.
    Argued Oct. 30, 1906.
    January 7, 1907:
    Appeal, No. 74, Oct. T., 1906, by defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1903, No. 653, on verdict for plaintiff in case of Marie B. Crooks v. Pittsburg Railways Company.
    Before Mitchell C. J., Pell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for death of plaintiff’s husband. Before Brown, J.
    The facts are stated in the opinion of the Supreme Court. Verdict and judgment for $7,913.56. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      James C. Gray, with him Clarence Burleigh, William A. Challener and W. W. Smith, for appellant.
    Plaintiff’s decedent was guilty of contributory negligence: McCracken v. Consolidated Traction Co:, 201 Pa. 378; Carroll v. Penna. R. R. Co., 12 W. N. C. 348; Greenwood v. P. W. & B. R. R. Co., 124 Pa. 572.

      Rody P. Marshall, with him Thos. M. Marshall, for appellee.
   Opinion by

Mr. Justice Potter,

This was an action of trespass brought by Marie B. Crooks against the Pittsburg Railways Company, to recover damages for the death of her husband, Everett E. Crooks, who was run over and killed by one of defendant’s cars, on East street in the city of Allegheny, about ten o’clock on the evening of February 19, 1905.

Mr. and Mrs. Crooks had been spending the evening at the house of a friend on East street. It was their intention to return home by a trolley car running south on that street. It appears from the evidence that the cars made sufficient noise in passing, to be plainly heard inside the house. When Mr. Crooks was about ready to leave the house, a car was heard to pass, and some remark was made about missing it. Hearing another car coming, Mr. Crooks went out of the house, followed first by his friend, Mr. Erhardt, and then by Mrs. Crooks. The Erhardt house was on the east side of the street, while the single track traversed by defendant’s cars was laid about three feet from the curb, on the other, or west, side of the street. From the steps of the house to the rail, was a distance of about seventeen feet. It was Mr. Crooks’s intention to stop the car at the corner of an alley, almost opposite the house, and in order to do this, he attempted to cross in front of the approaching car, as the opening to admit passengers was at the rear platform, upon the other side of the car. While in the very act of stepping or leaping across the track, Mr. Crooks was struck by the car, and killed. Mr. Erhardt who was close behind, sprang backwards, and saved himself.

Plaintiff produced a number of witnesses, who testified that the car was running very rapidly and did not come to a stop until it reached a point about 200 feet beyond the place of the accident. It was also shown by plaintiff’s witnesses that there was no headlight on the front of the car. But the car was lighted upon the inside and the light shone through the windows, and a great deal of noise was made by the car as it ran, so that it could be heard at some distance. It is clear from the testimony that the deceased heard the car while he was in the house, and saw it after he came out upon the street, as it approached, and then attempted to cross in front of it, for the purpose of stopping and boarding that particular car.

The railway consists of a single track, and the space between the rails was about five feet. Two, or at most three, steps, would have cleared it entirely; and as Mr. Crooks was struck while he was between the rails, it is apparent that he could have taken but one or two steps from the time he entered upon the line of the track, until he came in contact with the car. In other words, his stepping within the line of the rail, and the coming of the car to that particular spot must have been practically instantaneous. Where a foot passenger walks or steps directly in front of an approaching car, and is struck at the instant he sets his foot between the rails there is but one inference which can reasonably be drawn from that fact, and that is the inference of contributory negligence. It is idle to estimate and suggest, as did some of the witnesses in this case, that a car can travel 100 or 150 feet, in the fraction of a second which passes, while the foot is being rapidly raised and set to the ground, in taking a step. If there had been any appreciable distance between him and the car, a foot passenger walking rapidly or runniug, as was Mr. Crooks, in this case, would have crossed the line before it could reach him. The deceased was a tall, agile man, and, as one of the witnesses said, the rapidity of his movements was such that a leap or two would take him across. If then, as is shown by the testimony, the car caught him in the space between the rails, while he was crossing thus rapidly, it must have been almost within touch, as his foot left the ground, to take the one fatal step that put him in the way of danger.

The testimony is undisputed as to the manner in which this most unfortunate accident occurred. As we have seen, one step, or at the most two, carried the deceased from a point outside the line of the track into collision with the car. It must have occurred in less than a second of time. The facts speak for themselves. The action of the deceased can only be characterized as contributory negligence, and the judgment is reversed.


text:
    McClelland, Appellant, v. Pittsburg Railways Company.

      Negligence — Street railways — Collision between wagon and car — Contributory negligence — Nonsuit.
    It is contributory negligence for the driver of a vehicle who is about to cross the tracks of a street railway, to drive so close to the track as to be hit by an approaching car while in the act of turning into the space between the track and the curb in an endeavor to avoid the car.
    Argued Oct. 30, 1906.
    Appeal, No. 97, Oct. T., 1906, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., Dec. Term, 1902, No. 371, refusing to take off nonsuit in case of R. ~W. McClelland v. Pittsburg Railways Company.
    Before Mitchell, C. J., Fell, Brown, Mestkezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Brown, J.
    The facts are stated in the opinion of the Supreme Court. '

      Error assigned was refusal to take off nonsuit.

      James Balph, with him R. A. Balph, for appellant.
    The case of Callahan v. Philadelphia Traction Company, 184 Pa. 425, is, in its facts, almost indentical with the case at bar.
    The case was for the jury: Hamilton v. Consolidated Traction Co., 201 Pa. 351; Heuber v. Consolidated Traction Co., 210 Pa. 70; Kennedy v. Consolidated Traction Co., 210 Pa. 215; Haughey v. Pittsburg Railways Co., 210 Pa. 363; Jackson v. Pittsburg, Allegheny and Manchester Traction Co., 151 Pa. 399; Downey v. Pittsburg, Allegheny and Manchester Traction Co., 161 Pa. 131.

      James C. Gray, with him Clarence Burleigh and William A. Challener, for appellee.
    Plaintiff’s testimony shows glaring contributory negligence: Smith v. Electric Traction Co., 187 Pa. 110; Burke v. Union Traction Co., 198 Pa. 497; Bornscheuer v. Consolidated Traction Co., 198 Pa. 332; Tyson v. Union Traction Co., 199 Pa. 264; Keenan v. Union Traction Co., 202 Pa. 107; Moser v. Union Traction Co., 205 Pa. 481.
    January 7, 1907:
   Opinion by

Mr. Justice Potter,

This action was brought to recover damages for personal injuries caused by a collision between the buggy in which appellant was riding and one of defendant’s cars. The accident occurred just as plaintiff was driving out the driveway of a private residence, intending to cross directly over the track. It appears from the evidence, that he saw the car approaching at some distance, and, keeping his eye upon it, he allowed his driver to proceed at a slow trot. Just as the head of the horse reached the first rail, he concluded that the car was too near, and was coming too fast, for him to cross the track in safety. He then directed the driver to turn the horse to the right into the space between the track and the curb, so as to avoid the car; but in doing so, the wheel turned sharply under the body of the buggy, and apparently swung or pushed it so far around, as to bring the hind wheel in contact with the car as it passed.

The testimony shows that the car was running at an excessive rate of speed, and that the horse was trotting as it approached the track. Presumably the fact that the horse was trotting, made it more difficult to stop or turn'when it became necessary to do so, before the buggy reached the track. At any rate if the driver had approached the track more slowly, or had stopped at a point a few feet further from the track, the collision need not have occurred.

Undoubtedly the defendant company was negligent in running the car at so high a rate of speed, but even then, under the well settled rule of law, the plaintiff cannot recover if by his own conduct he also contributed to the happening of the accident. As we read the testimony, he did this when he approached the point of intersection so rapidly, and drove so close to the track, before stopping, or turning the head of his horse. There was ample room to permit the turning of the horse and buggy, into the space between the curb and the first track, as the plaintiff drove out into the street, had he so desired. This was the course he finally adopted, but he hesitated a trifle too long in its execution. If he had stopped, or turned, an instant sooner, he would have been safe. The buggy seems not to have been at any time actually upon the track, and when the plaintiff was caught, it was by reason of being too close to the car, rather than by being in front of it.

We see no error in the refusal of the learned trial judge to take off the nonsuit, and the judgment is affirmed.


author: Mr. Justice Fell,

text:
    Armstrong v. Consolidated Traction Company, Appellant.

      Negligence — Street railways — Pedestrian—Grossing—Question for jury.

    Where the plaintiff’s story as to the happening of an accident is improbable but not impossible the court is not justified in withdrawing the case from the jury.
    Stopping before crossing the tracks of a railway is opposed to the idea of negligence and unless, notwithstanding the stop, the whole evidence shows negligence so clearly that no other inference can properly be drawn from it, the court cannot draw the inference as a conclusion of law, but must send the case to the jury.
    In an action against a street railway company to recover damages for personal injuries, it appeared that the plaintiff was injured at night at a-crossing which was an exceptionally dangerous one. There were four tracks to watch, two straight ones, and two that curved from another street. Cars were passing every few seconds. There was no safe place to stop until all the tracks had been crossed. Plaintiff exercised due care before starting. Plaintiff knew that there was a rule of the company that after a car had passed around the curve, and had come to a stand to receive or discharge passengers, the car following it should not enter on the curve. Plaintiff halted in the narrow space between the straight tracks, and saw that a car had stopped after passing the curve, and that a following car was standing ready to enter upon the curve. He attempted to proceed and was struck as he left the curved track. The car which struck him must have moved from a full stop sixty-five feet on the curve, and during this time plaintiff had only to glance in another direction and walk about twelve feet. Held, that the court could not say from the testimony that it was impossible for the accident to have happened under the circumstances stated and that the case was for the jury.
    Argued Oct. 30, 1906.
    Appeal, No. 114, Oct. T., 1906, by defendant, from judgment of C. P. No. 1, Allegheny Co., Dec. Term, 1901, No. 506, on verdict for plaintiff in case of William P. Armstrong v. Consolidated Traction Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    January 7, 1907:
    Affirmed.
    Trespass to recover damages for personal injuries. Before Collier, P. J.
    The facts are stated in the opinion of the Supreme Court. Yerdict and judgment for plaintiff for $5,975. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      James C. Gray, with him Clarence Burleigh and William A. Challener, for appellant.
    The plaintiff was guilty of contributory negligence: Carroll v. Penna. R. R. Co., 12 W. N. C. 348; Buzby v. Traction Co., 126 Pa. 559 ; Ehrisman v. East Harrisburg City Pass. Ry. Co., 150 Pa. 180; Burke v. Union Traction Co., 198 Pa. 497; Holmes v. Union Traction Co., 199 Pa. 299; McCracken v. Consolidated Traction Co., 201 Pa. 378; Pieper v. Union Traction Co., 202 Pa. 100; Keenan v. Union Traction Co., 202 Pa. 107; Moser v. Union Traction Co., 205 Pa. 481; Hoffman v. Phila. Rapid Transit Co., 214 Pa. 87; Greenwood v. P., W. & B. R. R. Co., 124 Pa. 572; Brown v. Traction Co., 14 Pa. Superior Ct. 594; Potter v. Scranton Ry. Co., 19 Pa. Superior Ct. 444; McPhillips v. Union Traction Co., 19 Pa. Superior Ct. 223.

      Rody P. Marshall, with him Thos. M. Marshall, for appellee,
    cited: McGovern v. Union Traction Company, 192 Pa., 344; Henderson v. United Traction Company, 202 Pa. 527; Haughey v. Pittsburg Railways Company, 210 Pa. 363.
   Opinion by

Mr. Justice Fell,

The question raised by this appeal is whether the case should have been withdrawn from the jury on the ground of contributory negligence. The plaintiff was injured at night while 'crossing Penn avenue at Seventh street in the city of Pittsburg. Cars were passing over the crossing every few seconds. There are two tracks on the avenue and two on Seventh street, and these tracks are connected by curves.and cars pass from the street to the avenue. There was a rule of the company, known to the plaintiff, that when a car had passed from the street to the avenue and was standing to receive or discharge passengers, the car following it should not enter on the curve. After reaching the crossing he waited until it was clear. When he started, a car which had come from Seventh street was standing on the avenue, and the car following it, which struck him, was standing, diagonally across on the far side of Seventh street. He walked on the crossing to the narrow space, less than four and a half feet wide, between the straight tracks and stopped, looked at the car on Seventh street, saw that it was standing, looked up and down the avenue, and went on. He was struck when on the far side of the curved track by the car from Seventh street, which had been started without a signal being given and was running very rapidly around the curve.

From the plaintiff’s testimony it appears that the crossing was an exceptionally dangerous one; there were four tracks to watch, two straight ones and two that curved from the street. There was no safe place to stop until all the tracks had been crossed. He exercised due care before starting; the car standing on the avenue blocked the way of the car standing on Seventh street and was an assurance to him that the latter would not immediately start. He halted in the narrow space between the straight tracks in the middle of the avenue and saw that the car on Seventh street was still standing, and he was struck as he left the curved track. The weakness of his case is that between the time he looked at the Seventh street car and the time he was struck by it, it must have moved from a full stop sixty-five feet on a curve, and during this time he had only to glance in another direction and walk about twelve feet. It is highly improbable that his recollection was accurate as to all the facts detailed and that the accident happened in the way .described by him. It is not, however, impossible that it happened in this way, and the court would not have been justified in withdrawing the case from the jury on the ground that he stepped in front of a moving car which he either saw or should have seen. He was not proceeding heedlessly but with care, in a situation that was both dangerous and confusing. It has been repeatedly said that the rule stated in Carroll v. Penna. Railroad Co., 12 "W. N. C. 348, is in its nature applicable only to clear cases where the conclusion of negligence is irresistible. It was said by the present chief justice in Ely v. Pittsburg, etc., Railway Co., 158 Pa. 233 : “ Stopping is opposed to the idea of negligence, and unless, notwithstanding the stop, the whole evidence shows negligence so clearly that no other inference can properly be drawn from it, the court cannot draw that inference as a conclusion of law, but must send the case to the jury.”

The judgment is affirmed.


author: Mr. Chief Justice Mitchell,

text:
    Musgrave’s Case.

      Attorneys at law — Admission to the bar — State board of examiners — Rules of court of Allegheny County.

    A certificate from the state board of examiners for admission to the bar, to the effect that the person named in the certificate has furnished satisfactory evidence that he is a member in good standing of the appellate court of another state, that he has practiced in a court of record of that state for at least five years, and that he is of good moral character, without any statement that he had passed an examination before the board, will not entitle such person to admission to the Bar of Allegheny county under Rule 36 of the courts of common pleas of that county.
    Argued Oct. 30, 1906.
    Appeal, No. 128, Oct. T., 1906, by John H. Musgrave, from order of C. P. No. 3, Allegheny Co., Aug. T., 1906, No. 305, refusing a rule to show cause in the matter of the Petition of John H. Musgrave for admission to the Bar.
    Before Mitchell, O. J., Eell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Petition for rule to show cause.
    The petition was as follows:
    “ The petition of John H. Musgrave, of the City of Pitts- ' burg, in said county, respectfully represents:
    “ That he was born in the City of Pittsburg aforesaid in 1871, and resided in said city until 1894, and after an absence of ten years returned in 1904.

      “ That he is a freeholder in his own right, and a large holder of real estate in the right of his wife, in said county and State.

      “ That he attended the common schools of the said City of Pittsburg, the preparatory department of the "Western University of Pennsylvania, and studied under a private tutor. After such preparation, he entered the Law Department of Tale University, where he graduated in 1893, after which he returned to Pittsburg, and in 1894, moved to the City of Chicago to reside.
    “ That he resided in the said City of Chicago, Illinois, from 1894 to 1900, and in the City of Minneapolis from 1900 to 1904; that he was in actual practice of the profession of law in said cities and States for and during the said period of nine' years, being admitted to practice law by and in the courts of last resort of said States, and is still in good standing therein.
    “ That in March, 1904, he returned to the said City of Pitts-burg on account of business interests, and was duly admitted to practice law before the Supreme Court of Pennsylvania, the Superior Court of Pennsylvania, and the District and Circuit Courts of the United States for the Western District of Pennsylvania, by reason of a certificate issued by the State Board of Law Examiners, according to Rule Ten of the rules governing admission to practice law in the Supreme Court of Pennsylvania.
    “ That in December, 1904, he appeared before the Examining Board of Allegheny County for a certificate to practice law in the Courts of Allegheny County, but was denied the right of examination on the ground that your petitioner did' not intend to reside permanently in said county, though then a legal resident.
    “ That on June 3, 1906, he appeared before the Board of Law Examiners of Allegheny County, composed of Messrs. E. C. Chalfant, George P. Herriott, E. L. Mattern, John S. ’ Wendt, Charles P. Orr, John P. Hunter, William M- Hall and R. A. Balph, and presented to said Board a certified copy of the certificate of the State Board of Law Examiners before referred to, and requested that said Board of Law Examiners of Allegheny County grant him a certificate recommending his admission to practice law in the several Courts of Record of Allegheny County, according to Rule 36 hereinbefore referred to; but he was denied said certificate on the ground that ’for the last year and one half he was not in the active practice of the law, being a resident of Pennsylvania.
    “ That said Board of Law Examiners of Allegheny County refused to recognize the certificate issued by the said State Board of Law Examiners in law, claiming that such certificate does not comply with the rules of Court in regard to the admission of attorneys.
    “ Your petitioner has also attached hereto several letters of residents of Pittsburg and vicinity, showing that he is a person' of good moral character, and of good repute in this community. '
    “Wherefore, by reason of the premises, your petitioner prays that this Honorable Court grant a rule upon the said Board of Law Examiners to show cause why the said Board should not recoinmend or move the admission of the said John H. Musgrave to practice law in the several Courts of Allegheny County.”
    The certificate of the state board was as follows :
    “ The state board of law examiners hereby certifies that John H. Musgrave, Esq., of Allegheny county, has furnished satisfactory evidence that he is a member in good standing of the bar of the appellate court of last resort of the state of Illinois; that he has practised in a court of record of that state for at least five years, and that he is of good moral character.
    “The board, therefore, recommends that he be admitted to the bar of the Supreme Court of Pennsylvania.”
    The court refused the. rule.

      Error assigned was the order of the court.

      Joseph A. Langfitt, with him H. W. McIntosh, for appellant.
    It is a familiar principle of modern law that a license to practice law in a higher court includes the right so to do in all iriferior courts: Weeks on Attorneys, sec. 23; Foster’s Federal Practice, sec. 100; In re Day, 181 Ill. 73 (54 N. E Repr. 646).
    A denial of admission in course, is reviewable on appeal : Com. v. Judges, 1 S. & R. 187; Strother v. Missouri, 1 Mo. 605; Ex parte Garland, 71 U. S. 333, 378; Ex parte Secombe, 60 U. S. 9.

      January 7, 1907 :
    The appellant further contends that the refusal of the board of law examiners of Allegheny county to admit him to examination as aforesaid, -was and is in violation of the fourteenth amendment to the constitution of the United States and article IY, sec. 2, which reads: “ The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states: ” Corfield v. Coryell, 4 Wash. C. C. 371; Cummings v. State of Missouri, 71 U. S. 277, 321.

      E. C. Chalfant, with him Chas. P. Orr, for appellees.
    The certificate of the state board states nothing from which an examination of the. petitioner can be inferred. And, further, it does not appear that the petitioner presented any evidence to the state board that he had ever been examined in any of the jurisdictions in which he is alleged to have practiced law.
    'The petitioner does not come within any of the rules of the court below relating to admission of attorneys to practice.
    From the foregoing it would seem that no constitutional question is involved here. All who come within the rules are entitled to admission to the bar. Nonresidents should'receive no preferential treatment.
    The rules of comity existing between states may have justified the admission of petitioner to this court. That he had no right to such admission seems clear by reason of Rogers’ Petition, 194 Pa. 161.
    Admission to the Supreme Court may be accepted as a reason for admission to the courts of common pleas. That it is not the basis of a right to admission in the lower court seems clear by reason of Splane’s Petition, 123 Pa. 527.
   Opinion by

Mr. Chief Justice Mitchell,

The rules of court for admission to thé bar of Allegheny county, in the regular and usual course, require, inter alia (1), registration as a student, after an examination as to proficiency in preliminary studies, or an attendance at some reputable college which will be accepted as an equivalent for such examination (Rule 35); (2) having been so registered the applicant must have served a regular clerkship in the office of an attorney or judge of the county for three years, or its prescribed equivalent ; and (3) that he shall have undeugone “ an examination in the principles and practice of law and equity, or, in lieu thereof shall present to the board the certificate of the state board of law examiners that he has passed the examination required by the rules of the Supreme Court, relating to admission to the bar of that court, and has been recommended by them for admission to the bar of the Supreme Court, and shall file with the prothonotary .... a certificate signed by all the examiners present at his examination or in case of the presentation of a certificate of the state board, by all those present at the meeting of the board which passes thereon, that he is qualified for admission to the bar and that they have received satisfactory evidence of his good moral character. Each examination shall consist partly of written questions to be answered in writing by the student, which questions and answers shall be reported to the court if required. The specific subjects and studies upon which the examination shall be held shall be the same as those designated from time to time by the Supreme Court for the examination of candidates for admission to the bar of that court: ” Rule 36.

This is the regular and ordinary course, and admission it will be seen is based on the ultimate requirement of an examination in the principles and practice of law and equity. Until quite recently the courts insisted on such examination by their own board, and the recent amendment of Rule 36 by which the certificate of the state board of examiners is accepted as an equivalent, is a concession in relief of students from the burden of a double examination, by the state and by the local board, on the same subjects and for the same purpose. But from the provision for written questions and answers, and for the specific subjects and studies, as' well as from the general intent, it is manifest that the rule both in its original and its amended form requires an examination, in the ordinary meaning of that word, to test proficiency in the principles and practice of law and equity, not a mere inspection by the state or the county board, of certificates from other courts. Such inspection in exceptional cases of practitioners from other courts is provided for in the next rule, 37, as follows : “ Any person admitted to practice in other courts of this or other states who shall have been in actual practice for five years within the six years immediately preceding his application, and who shall have satisfied the board of examiners of this fact and of his good moral character and professional standing, may without previous registration appear for final examination for admission to the bar; provided, however, that when, in the unanimous opinion of the board, the moral character, professional standing and qualifications of the applicant are such as to render an examination unnecessary, he may on filing in the prothonotary’s office a certificate to this effect, signed by all the members of ■the board present himself for admission on motion.”

These rules prescribe the conditions and methods by which admission can be had to the bar of Allegheny county. The appellant has not brought himself within any of them. There is no averment in his petition that he has passed an examination by either the state or the county board in the principles of law and equity, nor indeed is there any averment of such an examination by anybody at any time, and the statement of graduation at the Law Department of Yale University is lacking in precision of dates to show how much time he passed there. He has not therefore complied with the requirements of Rule 36 with regard to students applying for admission from the county of Allegheny.

Appellant claims to come under Rule 36 by virtue of his certificate from the state board. Turning to the certificate it appears to be only that he has furnished satisfactory evidence that he is a member in good standing of the Bar of the Appellate Court of last resort of the state of Illinois ; that he has practised in a court of record of that state for at least five years, and that he is of good moral character.” This is not the certificate contemplated by Rule 36, which as already said is intended only to accept the result of an examination to test qualifications as to legal knowledge by the state board as an equivalent for examination for the same purpose by the local board as previously required. The rule and the certificate provided for in it have no reference to the admission of attorneys from other courts of this or other states. That subject is governed by Rule 37 already quoted. Appellant makes no claim that he comes within that rule.

It would have been better practice to grant the rule. Any question of fact possibly arising could then have been reached by depositions and the record would have been put in more regular shape, though the rule would-have had to be discharged. But no error was committed of which appellant has any cause to complain.

Appeal dismissed.


text:
    Alles v. Lyon, Appellant.

      Husband, and wife — Tenants by entirety — Municipal lien.

    Where a husband and wife are registered owners by entireties of a lot in a city, and a municipal lien is filed against the wife alone, upon which judgment is entered against her only, the lien as to the husband is a nullity and a sale thereunder passes no title. In such a case if the wife buys at the sale, she buys nothing that she did not have before, her own right of survivorship.

      Husband and wife — Tenancy, by entireties — Divorce.
    Where a husband and wife hold an estate as tenants by entireties, and they are subsequently divorced, the divorce does not change the tenancy by entireties into a tenancy in common.

      Husband and wife — Tenancy by entireties — Divorce—Ejectment—Rule to bring ejectment.

    Where a husband and wife holding an estate by entireties, are divorced, the wife is not entitled as against the husband to a rule to bring ejectment, and if the court allows the rule, the failure of the husband to appear and answer is immaterial, because the face of the record already answered the requirements of the rule by showing “cause why the ejectment cannot be so brought;” '•
    Argued Oct. 30, 1906.
    Appeal, No. 130, Oct. T., 1906, by defendant, from judgment of O. P. No. 2, Allegheny Co., Oct. T., 1905, No. 944, for plaintiff on case stated in suit of Louisa Alies, formerly Louisa Reis, v. David A. Lyon.
    Before Mitchell, C. J., Fell, Brown, Mestrbzat, Potter, Elkin and Stewart, JJ.
    Reversed.
    ■ Case stated to determine the marketable title to real estate. Before Shafer, J.
    From the record it appeared that the plaintiff, Louisa Alies, was divorced from John P. Reis. Reis and the plaintiff held the land in question as tenants by entireties. Plaintiff claimed that after the divorce she bought the land in at a sale under a municipal lien, and that she had a full fee simple title covering the entire interest in the land. Other facts appear by the opinion of the Supreme Court.
    January 7,1907:
    The court entered judgment for plaintiff for $1,775. De-. fendant appealed.

      Error assigned was in entering judgment for plaintiff.

      John W. Thomas, for appellant.
    John P. Reis, one of the tenants by entireties, was neither named in nor served with the scire facias upon which the judgment was founded, and, therefore, his interest in, or title to, the land was not divested and the sale was void and passed no title : Simons v. Kern, 92 Pa. 455 ; Ferguson v. Quinn, 123 Pa. 337 ; O’Byrne v. Philadelphia, 93 Pa. 225.
    The divorce did not affect the title of the parties : O’Donnell v. Powell, 53 Pitts. Legal Jour. 255 ; Lewis’s App., 85 Mich. 340 (48 N. W. Repr. 580); Stuckey v. Keefe, 26 Pa. 397.
    The act of 1889 did not apply, and the court was without jurisdiction : Morgan’s App., 110 Pa. 271.

      W. H. Lemon, for appellee.
    After divorce the parties were tenants in common: Nelson on Divorce, sec. 1025 ; Donegan v. Donegan, 103 Ala. 488 (15 So. Repr. 823); Bramberry’s Est., 156 Pa. 628; Redemptori'st Fathers v. Lawler, 205 Pa. 24.
   Opinion bt

Mr. Chief Justice Mitchell,

It appears by the case stated that the husband and wife were registered owners by entireties of the lot in question when the municipal lien was filed against the wife alone. Judgment on it was entered against her only, and though' the levari facias avérs that it is issued “with notice to John P. Reis” (the husband), yet, as said by the learned judge below, it does not appear that any such notice was given. As against the husband, therefore, the lien was a nullity, and the sale under it passed no title: Simons v. Kern, 92 Pa. 455; Ferguson v. Quinn, 123 Pa. 337.

There is no question involved about attacking a judgment collaterally, as the record shows the want of jurisdiction in the court to render: such judgment.

When, therefore, the wife bought at the sale she bought nothing that she did not have before, her own right of survivorship. But even if the whole title-had been divested by the sale she would have bought under an obligation as trustee for her husband as cotenant, and could not have ousted him in that way. She therefore acquired nothing as against him by the sale.

Coming now to the main question in the case, we are of opinion that the court below erred in holding that the estate by entireties was severed by the subsequent divorce of the husband and wife.

The subject is very bare of authorities. The law as to divorce prevented this question from arising in the earlier English cases, and in the few cases reported in this country the decisions, all more or less affected by statutes, are at variance, with no clear' preponderance in either way. Lewis’s Appeal, 85 Mich. 340, may be regarded as the best discussion in favor of the view that the nature of the estate is not changed, and Ames v. Norman, 36,Tenn. 683, as the best on the other side.

The question has not previously come before this court, and we are left to decide it on general principles.

An estate by entireties is one held by husband and v\7ife by virthe of title acquired by them jointly after marriage. Be-/ ing regarded as one person in law they take not in parts or shares, like joint tenants or tenants in common, but each takes the whole, or in the ancient phrase they are seized, not per mie et per tout, but per tout only. Incident to this estate as to joint tenancy is the right of survivorship, with this difference, that on the death of husband or wife the survivor takes no new title or estate; he or she is in possession of the whole from its inception. It was early held that our act of March 31, 1812,

5 Sm. L. 395, abolishing survivorship in joint tenancy, did not affect estates by entireties: Robb v. Beaver, 8 W. & S. 107 (111); and the same view has been taken of the married women’s Acts of April 11, 1848, P. L. 536, and later: Diver v. Diver, 56 Pa. 106; Bramberry’s Est., 156 Pa. 628.

The general subject of estates by entireties is learnedly discussed by Lewis, C. J., in Stuckey v. Keefe’s Exrs., 26 Pa. 397, our leading case. It was there held that a conveyance to husband and wife, their heirs and assigns, “ as tenants in common and not as joint tenants ” created an estate by entireties, and the opinion was strongly expressed that the estate arose by virtue of “ a rule of law founded on the rights and incapacities of the matrimonial union ” and therefore that the intention was immaterial. No subsequent case has gone so far, and in Merritt v. Whitlock, 200 Pa. 50, it was said that it may be considered as still an open question whether husband and wife may not, since the married women’s property acts, take as well as hold in common if that be the clear actual intent, notwithstanding the presumption to the contrary.

/The argument for the change by divorce from an estate by entireties to a tenancy in common rests on the assumption that as the basis of the estate is the unity of person, a severance of that unity carries with it a severance of the estate; that as after divorce an estate by entireties could not be created between the parties it cannot be continued./ But this view fails to give due weight to the rule that £he quality of the estate is determined at its inception. It arises not out of unity of person alone, but out of unity of person at the time of the grant. “ If an estate be made to a man and woman and their heires, before marriage, and after (wards) they marry, the husband and wife have moities between them: ” Coke Litt. 187b; and see 2 Cruise’s Digest, 494 and 2 Plowden, 483, cited in Stuckey v. Keefe’s Exrs., 26 Pa. 397. No stronger illustration could be given. /If subsequent unity of person cannot change a tenancy in common to one by entireties, e converso a subsequent severance of the unity of person ought not to change a tenancy by entireties to one in common. In entire accordance is our latest case, Hetzel v. Lincoln, 2Í 6 Pa. 60, where a conveyance to husband and wife “ jointly ” was held to create an estate by entireties which continued with its incident of survivorship, although the husband had conveyed his interest to the wife as “ the undivided one half ” and they had subsequently executed a mortgage in which the conveyance by the husband was referred to. A creditor had obtained a judgment against the husband and after his death sought to revive it against his administrator, with notice to the wife as terre-tenant, on the ground that they had become tenants in common, but it was held that he could take nothing. “ Whatever may have been the intention of the husband ” said our Brother Brown, “ the right of the wife was fixed by the deed from Reed. By it each held an entirety and upon the death of either the estate would vest absolutely in tbe other as the survivor. The husband conveyed nothing to the wife that she would not have enjoyed if she survived him, which she did.” The decisions and the statutes, referred to antea, go to show that in regard to the nature and qualities of an estate by entireties the general rule of law applies that they are determined at the inception of the estate.

In the present case, therefore, the parties took an estate by entireties at the time of the grant. By it the husband took a vested estate' to which was incident a right of survivorship. That estate could not be divested, or stripped of any of its incidents except by express statutory provision existing at tbe time of its inception. The divorce severed the unity of person for the future but it could not avail retrospectively to sever the vested unity of title and possession.

The learned court below gave much weight to the judgment of rule absolute to bring ejectment. But the rule was a nullity. By the terms of the statute it was a rule to bring ejectment or “ show cause why the same cannot be so brought.” The petition for the rule disclosed that the parties held by entireties, and that the petitioner had no other or better title than the husband upon whom the rule was asked. "Without regard to actual occupation the husband was in legal possession and could not bring ejectment against his cotenant; Martin v. Jackson, 27 Pa. 504; and the court could not make a vain order requiring him to do what the law determined he could not do. The petitioner’s occupation could not be adverse, because no matter how long continued it was in entire accordance with her husband’s title as well as her own. The act of 1889 is an act to facilitate the settlement of disputed or disputable claims to land. But it was not intended to overturn the settled principles of law. As the petition showed that the rule asked for, even if granted, would have to be discharged the rule should not have been granted. Ordinarily questions of title await the return of the rule for disposition: Titus v. Bindley, 210 Pa. 121; Pearl v. Johnstown, 216 Pa. 205. But in the present case that was unnecessary and the default providéd for in the statute, the failure to appear and answer, was immaterial, because the face of the record already answered the requirement of the rule by showing “ cause why the ejectment cannot be so brought.”

Judgment reversed and judgment directed to be entered for defendant.


author: Mr. Justice Mestrezat,

text:
    Conner v. Pittsburg Railways Company, Appellant.

      Negligence — Street railways — Infant—Duty of motorman.

    The duty of a motorman requires him to exercise care and vigilance in
    operating his car. He should give close attention to his duties so that he may protect those who without negligence are occupying the track in front of him, as well as those who are passengers in the car who may be endangered by a collision with persons or objects on the track.
    Where a motorman is running his car at such speed that he could stop it within a car’s length, and the view of the track is so unobstructed that if he looked he could see a small boy at a point at least 100 feet from where the boy is about to cross the track, and he fails to do so, and the boy is struck as he is about leaving the track, the motorman is guilty of negligence, and the company employing him is liable in damages for injuries to the boy.
    Argued Oct. 30,1906.
    Appeals, Nos. 133 and 134, Oct. T., 1906, by defendant, from judgment of O. P. No. 3, Allegheny Co., Aug. T., 1904, No. 541, on verdict for plaintiff in case of Joseph Conner, Minor, by next friend, Burton Conner, and Burton Conner in his own right v. Pittsburg Railways Company.
    Before Mitchell, C. J., Pell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for injuries to a boy seven years old. Before McClung, J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    Verdict and judgment for Burton Conner for $1,500, and for Joseph Conner for $4,500. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      WilUam A. Challener,
    with him Clarence Burleigh and

      January 7, 1907:

      James C. Gray, for appellant, cited: Hoffman v. Phila. Rapid Transit Co., 214 Pa. 87.

      Rody P. Marshall, with him T. L. Kerin and Thomas M. Marshall, for appellee,
    cited: Thompson v. Traction Co., 193 Pa. 555 ; Evers v. Traction Co., 176 Pa. 376; Schnur v. Traction Co., 153 Pa. 29.
   Opinion by

Mr. Justice Mestrezat,

The first and only assignment which requires consideration alleges that the court erred in not affirming the defendant’s point for instruction that there ivas no sufficient evidence of negligence on the part of the defendant company to justify a verdict for the plaintiffs. This point was properly refused by the court, and the case was submitted to-the jury.

The duty of a motorman requires him to exercise care and vigilance in operating his car. He should give close attention to his duties so that he may protect those who without negligence are occupying the track in front of him, as well as those who are passengers in the car who may be endangered by a collision with persons or objects on the track. As this court said in Schnur v. Citizens’ Traction Company, 153 Pa. 29, and it has substantially been reiterated time and again, a motorman “ should always be on the alert, to avoid danger, and his attention never should be diverted from his duties. He should keep his eye constantly on the track before him. If he is permitted to gaze at houses or other objects while his car is in motion, and an accident occurs by reason of such conduct, the company employing him must expect to be held responsible.”

A public highway, known as the River road, leads from Homestead along the Monongahela river in Allegheny county to the South Side in the city of Pittsburg. At the place of the accident, the road runs along a hillside parallel with and about twenty-five or thirty feet above the tracks of the Pitts-burg, McKeesport and Youghiogheny railroad which skirts the river at that point. Here, there are several houses on the upper side of the River road and'no buildings below it. The defendant company operates a single track electric railway on the road, and at the place of the accident the track is on the extreme lower side of the road. The company runs only two regular cars on this line, and as they travel in opposite directions, they pass at a switch about 300 yards down the river from the point on the track where the accident occurred. A well-worn path, four feet in width, leads from this point diagonally across and down the hillside about thirty-five feet to the railroad tracks. The path was made by the boys of the community “going continuously to and fro from the river getting wood.”

On the morning of July 18, 1902, which was a bright, clear morning, Joseph Conner, the minor plaintiff, a child of less than seven years, and Carlton Duffy and William Martin, two other lads of about the same age, went from their homes on the upper side of the River road near the place of the accident to the river bank near Walton’s coal tipple on the railroad, about a quarter of a mile distant, in search of firewood. When they started to return to their homes, they walked along the railroad to the path and then followed it. Just before they reached the street railway track which is on the extreme lower side of the river road overlooking á steep bank, Conner was in the lead, Duffy was about ten or twelve feet behind him and Martin was directly in the rear of Duffy. Conner proceeded to cross the track, and as he was stepping over the second rail he was struck by defendant’s car and very seriously injured. This was a summer car with the footboards turned up against its sides, running down the river in the direction of the south side, and was not carrying passengers, but “ was piled full of benches and seats.”

The plaintiffs allege that the motorman was negligent in operating the car, that he failed and neglected to keep a proper lookout for persons lawfully upon the highway and that he failed to give any warning of the approach of the car. The plaintiffs claim that if the motorman had been giving attention to his duties, he could have seen the children on the path as they approached the railway track, and could have seen Conner on the track for a sufficient distance to enable him to stop the car before it struck the boy. The plaintiffs also cláim that the motorman could and should have seen-Conner as he was walking on the path and nearing the car track and if he had sounded the gong then, the boy would have heard it and not attempted to cross the track. The failure to perform these duties is tbe negligence alleged by the plaintiffs against the motorman of the defendant company.

The boys all testified that as they came up the hill on the path they saw a car on the defendant’s track traveling towards the south side, but that they did not see or hear the second car, which was immediately behind it and which was the cause of the accident, until after it struck Conner. Duffy testified that the approach of the street car could not be heard because of the noise made by the engines on the two railroads which parallel the River road at this point, and that a train was passing on one of the railroads at the time the accident occurred. Conner says that he did not observe the car until he was stepping over the second rail when it struck him. According to the testimony of the boys, they heard no signal that the car was approaching. Frank McGuckin was a witness for the plaintiffs. He lives on the upper side of the River road immediately opposite the point at which the path enters the lower side of the road and the place where the accident occurred. He was sitting on his porch, which is in front of his house a few feet above the road, and saw the first or regular car pass towards the south side. He also saw the other or extra car approaching and says it was about 100 yards behind the first car. There was no fence on the lower side of the River road at that time and nothing to obstruct the view which the motorman had of the path extending up and down the hill. McGuckin testified: “ Q. Now, if you were on a street car coming down the river how far before you came to this path could you see it ? A. You could see one-quarter of a mile fully; you had command of the whole railroad track. Being in the situation of running in a semicircle you had command of the whole view. Q. If you were on a street car coming down the river, how far before you came to this path could you see it ? A. As soon as the street car came under Walton’s tipple. Q. How far was that from this path ? A. Almost a quarter of a mile. Q. Now, state whether or not you could see that path from that time continuously if you were on the front of a street car coming down the river ? A. Yes, sir.” He further testified that his attention was attracted to the second car by the ringing of its gong when it was about 100 yards distant, that thereafter and up to the time the boy was struck that he did not hear the gong ring, but could have heard it if it had rung. He also says that from the time the car was 100 yards distant from the place of the accident, there was nothing to prevent the motorman from seeing the boys coming up the path.

If McGuckin’s testimony is believed, and there is nothing in the case to discredit it, this motorman was unquestionably negligent. By the exercise of the care required of him, that of a prudent man under the circumstances, he would have seen the three small children walking on the path in the direction of the car track and of the public road, and the houses in that vicinity all being on the upper side of the road he should have assumed that these children were going to their homes above the road, and therefore would cross the car track. In the absence of anything more important requiring his attention at that time, he should have observed closely to see whether the children entered upon the track. Had he exercised this care, he would have seen the children, and the accident would not have occurred. All the evidence shows, and it is conceded, that the car was not running at a rapid speed but at a speed in which it could have been stopped at any time in its own length. Seeing this boy enter upon the track, as the motorman in the exercise of proper care should have seen, he could have stopped his car before it struck the boy. At that time, he was not entering upon the track nor in the middle of it, but was stepping over the second rail and leaving the track. "We think it apparent that from the gait at which Conner was walking and the speed at which the car was traveling when he entered upon the track, that the street car was more than a car length from him and hence could have been stopped b}r the motorman if he had been exercising the alertness required of him on the occasion.

The motorman who was in charge of the car at the time of the accident was called as a witness on behalf of the defendant company. He testified that he did not see any boys or children on the right-hand side of the track or below the road as he approached the place of the accident, and did not see Conner until after the accident and he was notified that he had run over a boy. He further says that at the time of the accident he was standing in the front end of his car, looking ahead, and that if a child had crossed the track he would have seen it, but did not see any child ahead of the car or crossing the track. This testimony does not help the defense. The motorman does not deny that if he had been looking he could have seen the children on the path walking towards the street car line. He admits that he could have seen the child if it had entered upon the track, and he further says in his testimony that he could have stopped his car, at the rate he was running, in a car length. His admission that he could have seen a child on the track shows conclusively that he was not looking and observing what was in front of him, because it is unquestionably a fact that this little child was ,on the track and had crossed part of it and was stepping off it at the time he was struck. The testimony of the three little boys conclusively shows that immediately before Conner was struck he was on the path approaching the car track, and hence he had passed from the lower side to the upper side of the track when he was struck by the car. It is therefore manifest, conceding the motorman’s testimony to be true, that he could have seen a child on the track in front of him, that he was not looking in that direction as the car approached the place of the accident. This of itself convicts him of negligent conduct for which his employer is liable. On the undisputed evidence in the case if the motorman had been looking he could have seen the boys on the path approaching the car line and could have seen Conner when he was on the track, and further, the motorman could have stopped his car in a car length. There is but one conclusion, and that is, that the motorman was remiss in the performance of his duties on that occasion which resulted in the mangling of the little child and maiming him for life. If the motorman saw these children approaching the car line, it was his duty to take reasonable precaution to protect them against being run down by his car, and failing in this he was negligent; if he did not see them on the path walking in the direction of the car line and Conner on the track it was, under the uncontroverted testimony, because he did not look, and hence he was equally negligent; and in either view, if his negligence was the causé of the boy’s injuries, the defendant should be held responsible.

The case of Keller v. Phila. & R. Ry. Co., 214 Pa. 82, cited and relied upon by appellant’s counsel, has no application to the facts of this case. That case, as the opinion shows, was decided “ on the assumption that the engineer was looking ahead and performing his duty in this respect,” and on the ground that the boy was “ in a position similar to that of a child who suddenly runs into the side or in front of a moving ear.”

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