text:
    Marsh, Appellant, v. Platt.

      Wills — Devise—Life estate — Estate in fee simple — Buie in Shelley’s case.

    Testator devised as follows: “My executors will hold the real estate which I own, as follows: My son shall have the use and income therefrom during his life and shall pay two hundred dollars a year rent therefor as long as my wife lives, which rent shall go through my executor to my said wife as part of the said four hundred dollars per year hereinbefore directed to be paid to her. After my wife’s death he shall pay no more rent therefor, but shall pay all taxes and assessments against said land and upon his death said land shall descend to and the title thereto shall at once vest in his heirs at law. If my executors at any time after my wife’s death can get twelve thousand dollars or more for said land and consider it advisable to sell said real estate they may do so provided my son consents to, and the proceeds shall be carefully invested on bond and mortgage and held and used as directed concerning the land itself.” Held, that the son took an estate in fee under the rule in Shelley’s case, inasmuch as the executor was a mere holder of the title on a dry trust.
    Argued April 20, 1908.
    May 18, 1908:
    Appeal, No. 171, Jan. T., 1908, by plaintiff, from judgment of C. P. Clearfield Co., Sept. T., 1905, No. 144, for defendant on case tried by court without a jury in suit of Zach Marsh v. John Platt et al.
    Before Mitchell, C. J., Fell, Brown, Potter and Stewart, JJ.
    Affirmed.
    Ejectment for land in Brady township. Before Smith, P. J.
    The case was tried by the court without a jury under the act of April 22, 1874.
    The plaintiff was a son of William W. Marsh, who was a son of William Marsh, who in turn was a son of Zacheus Marsh. Plaintiff claimed to recover an undivided two-fifths of the land in dispute as one of the sons of the second William Marsh. The material portions of the will of Zacheus Marsh are quoted in the opinion of the Supreme Court. The defendant claimed under a deed from William Marsh the first. The court decided that William Marsh took a fee by virtue of the rule in Shelley’s case, and entered judgment for defendant.

      Error assigned was in entering judgment for defendant.

      A. L. Cole, for appellant, cited :
    Dodson v. Ball, 60 Pa. 492; Watson’s App., 125 Pa. 340 ; Sheets’s Est., 52 Pa. 257.

      Thos. H. Murray, with him Pentz c& Calkins, Jas. P. OPaughlin and Hazard Alex Murrcvy, for appellees,
    cited : Physick’s App., 50 Pa. 128 ; Dodson v. Ball, 60 Pa. 492 ; Ogden’s App., 70 Pa. 501; Carson v. Fuhs, 131 Pa. 256 ; McCullough v. Coal Co., 210 Pa. 222 ; Shapley v. Diehl, 203 Pa. 566.
   Per Curiam,

The testator devised : Fourth. My executors will hold the real estate which I own in Clearfield County, Pa., as follows: My son "William shall have the use and income therefrom during his life and shall pay Two Hundred dollars a year, rent therefor as long as my wife lives, which rent shall go through my executor to my said wife as part of the said Four Hundred dollars per year herein before directed to be paid to her. After my wife’s death he shall pay no more rent therefor, but shall pay all taxes and assessments against said land and upon his death said land shall descend to and the title thereto shall at once vest in his heirs at law. If my executors at any time after my wife’s death can get Twelve Thousand dollars or more for said land and consider it advisable to sell said real estate they may do so provided my son William W. consents to, and the proceeds shall be carefully invested on bond and mortgage and held and used as directed concerning the land itself.”

The gift, prima facie, was of a life estate to the son, with provision that upon his death the land “ shall descend to, and the title thereto shall at once vest in his heirs at law.” This is within the express language of the rule in Shelley’s case, and the only question that can arise is whether the conditions and the trust take the devise out of the rule.

The son took under the will all the substantial rights and powers of ownership during his life. He was to have the use and income of the land, was to pay all taxes and assessments upon it, had a veto on the sale of it during his life, and if sold with his consent the proceeds were to be held for him under the same terms as the land itself. The only active duty of the trustees in connection with the land was to receive from him the annual rent of $200 charged on the land for the benefit of testator’s widow. But this duty was imposed in regard to the widow to whom, in paragraph three, testator directed $400 a year to be paid, of which $200 was to come from this life tenant, “ to go through my executor to my said wife.” It had nothing to do with the life estate except to collect the widow’s rent charged upon it.

It is manifest that the executor was a mere holder of the title on a dry trust: Carson v. Fuhs, 131 Pa. 256.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Pence v. Poet, Appellant.

      Practice, C. P. — Affidavit of defense — Reinstating rule.

    Where the plaintiff, in order to accelerate the trial of the case has the court discharge his rule for judgment for want of a sufficient affidavit of defense, and thereafter the defendant rules the case out for arbitration in order to keep it off the trial list, the court may in its discretion grant a second rule for judgment.
    Argued April 20, 1908.
    Appeal, No. 208, Jan. T., 1907, by-defendant, from order of C. P. Blair Co., March T., 1907, No. 238, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Charles A. Pence and Cary A. Swisher, trading and doing business as Pence & Swisher, v. Philip W. Poet.
    Before Mitchell, C. J., Fell, Brown, Potter and Stewart, JJ.
    Affirmed.
    Rule for judgment for want of a sufficient affidavit of defense.
    Bell, P. J., filed the following opinion :
    Plaintiffs’ attorney, on his own motion, before argument of the first rule for judgment, had said rule marked discharged in order to place the case on the trial list. Defendant, in order evidently to keep the case off the trial list, entered a rule to refer. Under such circumstances it would seem but right and just to reinstate the first rule for judgment, or grant a. second rule, and I know of no law, rule of court, or precedent preventing such procedure. The fact that the case is ruled out for reference, does not prevent the court from entering judgment for want of an affidavit of defense: Act of May 14, 1874, P. L. 159.

      Error assigned was the order of the court making absolute rule for judgment for want of a sufficient affidavit of defense.

      H. Price Graffius, for appellant.

      J. S. Leisenring, of Leisenring cfe Walters, for appellees.

      May 18, 1908 :
   Per Curiam,

The plaintiff having had his first rule for judgment discharged merely in order to accelerate the trial, had done nothing to mislead the defendant. The latter then ruled the case out for arbitration. The learned judge below being of opinion that this was done, evidently to keep the case off the trial list, ” granted a second rule for judgment. It was within his discretion to do so.

Judgment affirmed.


text:
    Dillen v. Dillen, Appellant.

      Judgment — Opening judgment — Defense—Consideration—Confession of judgment — Parent and child.

    No court or judge has jurisdiction or authority to open a regular judgment without some evidence of a valid defense.
    A judgment confessed by a father to a son without consideration is not void against the widow and heirs of the defendant in the judgment.
    Unless there is evidence of an attempt to defraud the widow of her dower, a judgment confessed to defraud creditors is valid and binding on the party confessing it, and on all claiming through him.
    Argued April 20, 1908.
    Appeal, No. 73, Jan. T., 1908, by plaintiff, from order of C. P. Clearfield Co., Feb. T., 1905, No. 87, making absolute rule to open judgment in case of Gettie Dillen, Admx. of David Dillen, v. David Dillen, Admr. of Jesse E. Dillen.
    Before Mitchell, C. J., Fell, Brown, Potter and Stewart, JJ.
    Keversed.
    Pule to open judgment.
    The petition for the rule was filed by the widow and children of Jesse E. Dillen, the defendant in the judgment. They claimed that the judgment note was given by Jesse E. Dillen to his son, David L. Dillen, without consideration with intent to defraud his creditors, and with intent to defraud Jesse E. Dillen’s wife.

      A. L. Smith, P. J., filed an opinion which was in part as follows:
    The testimony of disinterested witnesses, taken on behalf of the petitioners, is to the effect that David L. Dillen, at different times up until a very short time prior to his death, stated, or in effect admitted, that the judgment did not represent any value, and had been given originally to protect his father. No testimony was taken on behalf of the plaintiff in the judgment, but in her behalf the legal principle is invoked that the judgment was either originally a gift from father to son or given with intent to hinder, delay and defraud the creditors of Jesse E. Dillen, and that as he, Jesse E. Dillen, could not have made a defense in his lifetime against his own fraud, the widow and children should not be permitted so to do. David L. Dillen, in 1884, at the time this judgment was given, was a young man of twenty-four or twenty-five years of age, working at home on the farm for his father, and the testimony of disinterested witnesses is to the effect that he could not have had any such sum of money to loan his father or to anybody else. It seems to us, therefore, from a consideration of this testimony, that the petitioners have established an equity sufficient to appeal to the discretion of the court to open this judgment and give them their day in court. It is not apparent that these- petitioners are guilty of any laches in proceeding to open the judgment, for the reason that David L. Dillen handled both sides of the case from the death of his father in 1898 until his own death in 1906, and that no knowledge of the existence of the judgment is necessarily brought home to any of the parties now petitioners. They learned of its existence when the widow and administratrix of David L. Dillen, after his death, proceeded by issuing on said judgment to sweep from them practically all of the real estate which they then supposed they owned. While it is true that if this judgment was given by Jesse E. Dillen to his son, David L. Dillen, with intent on his part to hinder, delay or defraud his creditors, he, Jesse E. Dillen, could not in his lifetime have had this judgment opened by alleging such fact, yet it is not clear to us that even if such were the fact as between Jesse E. Dillen and his son, a defense could not now be made as against the son by the widow and children who were not parties to the fraud. It is not, however, necessary for us to pass upon this question now, because on the face of the papers and on the testimony produced the allegation is squarely made that the judgment, as originally given, was without consideration, and, therefore, void as to the petitioners, and we think that on this ground there can be no legal objection to opening the judgment and giving all the parties their day in court. If the judgment were originally given by Jesse E. Dillen to his son in order to defeat the inchoate right of dower in Sarah Dillen, she certainly ought to have the right to maintain her defense. Whatever the purpose for which the said judgment was originally given, we are of the opinion that justice cannot be worked out in this case except by opening the judgment so that all parties may have a hearing. We do not care to discuss the merits of the case any. further, or to prejudge any matters which may be the subject of proof at the trial.
    May 18, 1908:

      Error assigned was the order of the court.

      S. V. Wilson, with him Jeff Wingert, for appellant.

      David I. Krébs, with him A. M. Liveright, for appellees.
   Per Curiam,

The question in this case is not one of discretion but of jurisdiction. No court or judge has jurisdiction or authority to open a regular judgment without some evidence of a valid defense. In this case there is none whatever. A father gave a judgment note to a son. It was entered up and twice revived by scire facias in the father’s lifetime without any objection by him. Presumably in the absence of evidence of a debt it was a gift, but there was some testimony of loose declarations that it was “ to protect the father’s estate,” i. e., to defraud creditors. Under neither aspect was any consideration required. Counsel and even the court below seem to have entertained the extraordinary view that a judgment without consideration was void against the widow and heirs of the defendant in the judgment. There is no authority for any such notion. On the contrary, it has been long settled that unless there is evidence of intent to defraud the widow of her dower, a judgment confessed to defraud creditors is valid and binding on the party confessing it and on all claiming through him : Candor & Henderson’s Appeal, 27 Pa. 119 ; Hummel’s Est., 161 Pa. 215 ; Cosgrove v. Cummings, 195 Pa. 497.

In no aspect of the case was there any authority to open the judgment.

Order reversed and rule directed to be discharged.


text:
    Hubbard, Appellant, v. Crawford County.

      Negligence — Counties—Unsafe sidewalk leading to polling place.

    Counties acting as public agencies in the performance of governmental functions are not liable for the negligence of their officers. This rule applies to county commissioners who neglect to make safe a footwalk used by persons going to and from a polling place by providing a guard rail, or by lighting it at night.
    Argued April 27, 1908.
    May 18, 1908:
    Appeal, No. 233, Jan. T., 1907, by plaintiff, from judgment of C. P. Crawford Co., Nov. T., 1904, No. 106, for defendant non obstante veredicto in case of E. S. Hubbard v. The County of Crawford.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Thomas, P. J.
    The opinion of the Supreme Court states the case.

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

      George F. Davenport, with him Otto Kohler, for appellant.

      jB. B. Pickett, Jr., with him L. D. Edson, for appellee.
   Per Curiam,

The assignment of error in this appeal relates to the liability of a county for the failure of the commissioners to make safe a footwalk used by persons going to and from a polling place, by providing a guard rail or by lighting it at night. Our cases have gone farther than those in most jurisdictions in holding counties liable for negligence in the performance of statutory duties, where no right of action is given and the line of distinction between liability and nonliability rests on precedent rather than principle: Ford v. School District, 121 Pa. 543; Briegel v. Philadelphia, 135 Pa. 451. But this case clearly comes within the class where counties acting as public agencies in the performance of governmental functions have been held not to be liable for neglect of their officers. It does not differ in principle from Bucher v. Northumberland County, 209 Pa. 618, in which the subject is fully discussed in the opinion by our Brother Potter.

The judgment is affirmed.


author: Mr. Justice Elkin,

text:
    Clay v. Western Maryland Railroad Company, Appellant.

      Jnrg — Examination of jurors as to interest — Discretion of court — Trial —Practice, C. P.

    The refusal of the trial judge to permit a preliminary examination of jurors as to their interest, will not constitute reversible error where there is nothing to show that the result of the inquiry, if allowed, would afford any ground of challenge for cause, or show such an interest as would disqualify a juror, or that the jurors had formed an opinion, or had any bias or relationship, or had such a connection with the parties, or the subject-matter of the controversy as to affect their impartiality. It is the proper practice in such cases to allow a general inquiry as to the direct or even contingent interest of jurors in the result of the litigation, or in the parties to it, when there appears to be any reasonable ground to believe that some of them may have a possible interest in the result of the litigation, or in the parties, in order that an impartial jury may be selected free from bias or interest; but failure to do so will not constitute reversible error, unless established rules of law are violated, or cause for challenge be shown, or the right to show bias or interest of the jurors be denied, or inquiry into such material facts as might interfere with the selection of an impartial jury be refused.
    In an action against a railroad cpmpany the appellate court will not reverse a judgment against the defendant because the trial judge refused to permit an examination of jurors on their voir dire to determine whether any of them were employees of another railroad company, where there is nothing in the record to show that such company was interested in, or was in any way connected with, the litigation, or that it would be affected by any verdict that might be rendered.

      Practice, G. P. — Trial—Answers to points — Refusal to read points— Act of March 24,1877, P. L. 38.
    Under the Act of March 24, 1877, P. L. 38, points answered in writing and in the negative need not be read to the jury.-

      Negligence — Railroads—Joint me of yard.

    In an action by an employee of one railroad company against another railroad company to recover damages for personal injuries sustained in a collision in a yard between two trains of the respective companies, a recovery may be had where it appears that the defendant company and the other company had the joint use of the tracks at the place of the accident, subject to certain rules and regulations, and that the defendant company had not complied with such rules and regulations in providing proper guards and protection against the collision.
    Argued April 27, 1908.
    Appeal, No. 383, Jan. T., 1907, by defendant, from judgment of C. P. Cumberland Co., Sept T., 1907, No. 115, on verdict for plaintiff in case of Alfred M. Clay v. The Western Maryland Railroad Company.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    Sadler, P. J., charged in part as follows:
    The plaintiff in this case has brought his action to recover from the Western Maryland Railroad Company, the defendant, damages to compensate him for the injuries he received on February 21, 1906, from the alleged negligence of the employees of the said defendant.
    It appears that the plaintiff was the baggage master on train No. 97, which daily makes two trips from Gettysburg to Harrisburg and return, over the lines now controlled and operated by the Philadelphia and Reading Railroad Company. That the scheduled time for the return of this train to Gettysburg from its second trip was at or about five minutes after nine o’clock in the evening. That on February 21, 1906, it arrived there about 9:28 or 9 : 30, being almost a half hour late, and having unloaded its passengers and baggage, the train was pushed back on what is called a wye, in order that the engine might be turned, and made ready for the first trip to Harrisburg on the following morning; that th.e train consisted of a combination car in which the baggage was carried, of a passenger coach, and of a mail car; that as the train approached the station, the brakeman on the train dropped off, in order that he might open the switch to permit the train to enter the wye; that Garvin, the conductor of the train, and the plaintiff, the baggage agent, took their positions on the rear platform, the latter intending, as it seems was his duty, to be there in order to drop off and open the second switch on the wye ; that the engineer backed the train in the direction of and upon this wye; that the night was misty or foggy and very dark; that after entering the switch a short distance the train ran into a train of cars which had been placed on one of the legs of the wye, and as a result of the collision Garvin and Olay were thrown down — Olay, the plaintiff, falling on the tracks and seriously injured, both legs being broken. He was taken to a hospital in Harrisburg, was treated as has been testified to, and you have heard how long he was treated, when he left the same, and his further treatment in his home, and when he was again able to go to work, and you have seen and heard of his present condition.
    It appears that the Western Maryland Railroad had a short time previously brought in a train on this same leg of the wye, consisting of ten cars and a caboose — nine of the cars being loaded with coal; that it had cut the engine off from the front of the train and gone to another point to secure additional cars, which were to be added to the train; no light was put on the front of the train, or anyone left in charge, nor any signal of any sort, to warn others who came on the siding that cars were standing there, but the testimony is that there were lights on the caboose, which was on the rear of the same, and the plaintiff contends that the very fact that lights were put on one end is a recognition of a like duty to give like information that the train was on the wye, at its other or front ■ end.
    The plaintiff contends that the wye was entered at the usual rate of speed by the train on which he was; that the same was under control, and due care exercised in its movement, and on his part, and that while he and Garvin were looking in front of them the car of defendant’s train was not visible until they were almost upon it, and when observed, it was impossible to prevent the collision.
    The rules of the respective companies were offered in evidence, and witnesses were called who testified as to the manner in which trains were to run under them on the tracks when the accident occurred. For the purpose of showing, on the one hand, that they had not been violated by the plaintiff, or by those in charge of the train, the conductor and engineer; and on the other hand, that they had been violated on their part; and also, on the other hand, rules were offered to show that they had been so violated by the plaintiff, or his railroad, and to show that by the exercise of due care on part of the plaintiff that the accident would not have occurred. Both sides also claim a violation of the rules of the other — the defendant claims that the Reading violated its rules; the West-, ern Maryland claims that the Reading violated its rules. Both parties urge that they obeyed the rules or the practice under them; the testimony is contradictory, and you will have to find what the truth is. We leave for you to find what the rules are which governed the operation of trains at the place of accident, and on that night; from the printed ones offered in evidence, and the practice under them, as to the movement, conduct and control and care of trains of cars, as it has appeared to you to be from the testimony of the witnesses, on one side and the other.
    The defendant also insists that the plaintiff, conductor and engineer could or should have been made aware of the presence of the train by reason of the lights on the caboose, and electric lights on the streets of Gettysburg, which were located some distance from the tracks or from the train. On the other hand, testimony was adduced for the purpose of proving that owing to obstructions which intercepted the rays of the same, and also owing to the character of the night, the misty and foggy condition of the atmosphere and the intense darkness, this was impossible. Much testimony was also offered as to what was meant by the control of a train; one set of witnesses insisting that at the rate of speed at which the train admittedly ran it ivas not under control, and especially under the conditions of the night and of the atmosphere and the intense darkness, while this, as already stated, was testified to the contrary by the witnesses called on behalf of the plaintiff.
    Contradictory testimony was also given as to the duty and ' practice under the rules of the respective companies. These disputed questions of fact will be for your consideration and determination, keeping in mind that as the plaintiff has brought this action, the burden is on him to establish his right to do so by satisfactory evidence, and by the weight of the same.
    Yerdict and judgment for plaintiff for $15,000. Defendant appealed.

      Errors assigned among others, were (1) in refusing to permit jurors to be examined as to interest; (2) in not reading certain points to the jury; (3-44) various rulings and instructions.

      F. E. Beltzhoover and E. M. Biddle, Jr., with them G. 8. Duncan, for appellant.
    The inquiries of jurors under the authorities should clearly have been allowed : Comfort v. Mosser, 121 Pa. 455 ; Mfg. Co. v. Hopkins, 141 Pa. 30 ; Cummings v. Gann, 52 Pa. 484 ; Scranton City v. Gore, 124 Pa. 595.
    Points should be answered plainly and affirmed or refused : Curtis v. Winston, 186 Pa. 492 ; Kurtz v. Hoke, 172 Pa. 165 ; Citizens’ Pass. Ry. Co. v. Ketcham, 122 Pa. 228; Lingle v. R. R. Co., 214 Pa. 500 ; Swank v. Phillips, 113 Pa. 482; Widdall v. Garsed, 125 Pa. 358; Krug v. Peale, 35 Pa. Superior Ct. 1; Fraim v. Ins. Co., 170 Pa. 151.

      S. B. Sadler, with him Byman D. Gilbert and W. O. Sheely, for appellee.
    The Philadelphia & Reading Railway Company had not even a remote or contingent interest in the determination of the case. The mere fact that the plaintiff was an employee of the road, or that certain of the officials appeared as witnesses, by virtue of a duly served subpoena, is not sufficient: Benedict v. Penna. Coal Co., 6 Kulp, 221; Commonwealth v. Boston & Maine R. R. Co., 57 Mass. 25 ; Silvis v. Ely, 3 W. & S. 420 ; Clifford v. State, 61 N. J. Law, 247 (39 Atl. Repr. 721); Mfg. Co. v. Hopkins, 141 Pa. 30; Cummings v. Gann, 52 Pa. 484.
    May 18, 1908:
    Where points close with the request for binding infractions, where there are facts involved for the jury, the points are properly refused: Dietrich v. Lancaster, 212 Pa. 566; Whitmire v. Montgomery, 165 Pa. 253; Widdall v. Garsed, 125 Pa. 358.
   Opinion by

Mr. Justice Elkin,

When an appellant in a negligence case deems it necessary to specify forty-four assignments of error, the reasonable inference is that the case was either very well tried, or very poorly tried, in the court below. If there is anything in the record to justify the numerous assignments, the case must indeed have been carelessly and indifferently presented and considered at the trial. On the other hand, it may be, that the case was so well tried that the learned counsel for appellant, finding it difficult to assign any material and reversible error, have concluded to strengthen a weak case by making a formidable array of assignments. After a careful consideration of the whole record we have concluded that the latter is the proper inference to draw in the present case, which was presented and defended by capable and able counsel, and every objection and motion made on either side, all points submitted, and the rulings of the learned trial judge clearly show that the cause was tried with more than ordinary skill and care. The record is a demonstration that not only the court, but counsel on both sides, knew the law and carefully applied it to the facts of the case. The assignments are so numerous as to be suggestive of firing at random in the bushes in the hope that a stray shot might produce a favorable result. Well directed aim is better marksmanship and, as a rule, more satisfactory to the marksman. At the argument, it occurred to the writer of this opinion that if the defendant company had a right to the joint use of the track, and the train collided with was rightfully on the leg of the wye at the time of the accident, no negligence could be imputed to it for doing what it had a right to do. On consideration, however, it is clear this view loses sight of the fact that the arrangement for the joint use of the track was subject to the rules and regulations governing that joint use, and if the defendant company failed to comply with the rules to which the joint use was subjected, of which proper guards and protection to a standing train was one, there could be a recovery of damages because of failure to perform its duty in this respect. As to negligence of the defendant, and the contributory negligence of the plaintiff and his fellow servants, we are all of opinion that it was a case for the jury and that there was no reversible error committed in its submission.

The first assignment seeks to convict the learned trial judge of error in refusing to permit an examination of jurors on their voir dire to determine whether any of them were employees or stockholders of the Reading Railway Company. There was nothing in the record to show that this company was interested in, or was in any way connected with this litigation, or that it would be affected by any verdict that might be rendered. In such matters something must be left to the sound discretion of the trial judge who is always presumed to act in good faith, and refusal to permit .such a preliminary examination will not constitute reversible error where, as in the present case, there was nothing to show that the result of the inquiry, if allowed, would afford any ground of challenge for cause, or show such an interest as would disqualify a juror, or that the jurors had formed an opinion, or had any bias, or relationship, or had such a connection with the parties, or the subject-matter of the controversy, as to affect their impartiality. It must not be overlooked that the purpose of the inquiry was not to discover whether the jurors had any interest in the case, or were connected in any manner with the parties to the controversy, or that they had any bias, or had formed any opinion on the question involved, but it was directed to the single purpose of ascertaining whether they were stockholders or employees of another railroad company. Under these circumstances the rule of Comfort v. Mosser, 121 Pa. 455, does not apply. In this connection, it may be remarked, that the better practice is to allow a general inquiry as to the direct or even contingent interest of jurors, in the result of the litigation, or in the parties to it, when there appears to be any reasonable ground to believe that some of them may have a possible interest in the result of the litigation, or in the parties, in order that an impartial jury may be selected, free from bias or interest. However, failure to do so will not. constitute reversible error, unless established rules of law are violated, or cause for challenge be shown, or the right to show bias or interest of the jurors be denied, or inquiry into such material facts as might interfere with the selection of an impartial jury be refused.

Under the second assignment, it is contended the Act of March 24, 1877, P. L. 38, imperatively requires all points and answers to be read to the jury, and that failure to do so is reversible error. All of the points submitted by the defendant were correctly answered in writing by the court, but those answered in the negative were not read to the jury, and this court has said in several cases that this is not required: Kroegher v. McConway & Torley Co., 149 Pa. 444; Kreamer v. Smith, 187 Pa. 209; Carey v. Buckley, 192 Pa. 276. The points affirmed, and the answers thereto, were read to the jury, while those refused were answered in writing but not read to the jury. All of the points, affirmed or refused, together with the answers thereto, were filed by the learned trial judge and did become a part of the record in the case. This seems to be the established practice throughout the commonwealth, and is all that is required under the rule of our cases.

Assignments of error overruled and judgment affirmed.


text:
    Stayman v. Paxson, Appellant.

      Wills — Devise—Buie in Shelley’s case — Estate in fee simple.

    Testator devised to his grandchildren a farm at a valuation stated “ from which they will receive the income after the death of grandmother, and at their death it will descend to their issue.” The land thus devised was charged to its full rental value in favor of the grandmother for her life. Held, that the word “issue” meant “heirs of the body,” and that an estate tail was created which, by the act of 1855 was enlarged into a fee.
    Submitted April 27, 1908.
    May 18, 1908 :
    Appeal, No. 106, Jan. T., 1908, by defendant, from judgment of C. P. Cumberland Co., May T., 1908, No. 56, for plaintiffs on case stated in suit of Gordon S. Stayman, Thomas Reading and Nellie S. Reading, his wife, in her right v. Thomas Paxson.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Case stated to determine the marketable title to real estate.
    The facts appear by the opinion of the Supreme Court.

      Error assigned was in entering judgment for plaintiffs on the case stated.

      William A. Kramer, for appellant.

      8. B. Sadler, for appellee.
   Per Curiam,

The plaintiffs claimed ownership in fee of the land in question under the following codicil to the will of their grandfather : “ I hereby change the monied bequest of $20,000 dollars named in my will of Nov. 29th, 1881, and in Stead thereof, give those three children, two sons and one daughter, children of my deceased daughter A. E. Stayman, The Failor Farm at a valuation of $12,500 from which they will receive the income after the death of my wife their Grandmother, and at their death it will descend to their issue.”

The statement that they will receive the income after the death of their grandmother had reference to a charge on the land of its full rental value in her favor for life, and it may be doubted whether there was an intention to give less than an absolute estate. If the intention was to give a life estate only, the rule in Shelley’s case applies to the devise. The word “issue” in a will means,-prima facie, “heirs of the body,” and an estate tail was created into which the life estate merged, and which, by virtue of the act of 1855, was enlarged to a fee : Carroll v. Burns, 108 Pa. 386.

The judgment is affirmed.


text:
    Speer, Appellant, v. Huidekoper.

      Arbitration — Referee—Findings of fact — Review.
    A referee's findings of fact based upon sufficient evidence and confirmed by the court below, will not be reversed in the absence of manifest error.
    Argued April 28, 1908.
    May 18, 1908 :
    Appeal, No. 159, Jan. T., 1908, by plaintiff, from order of C. P. Crawford Co., Nov. T., 1900, No. 1, dismissing exceptions to referee’s report in case of Harriet D. Speer, Executrix, etc., of Samuel B. .Dick, deceased, v. Arthur C. Huidekoper.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Exceptions to referee’s report.
    The opinion of the Supreme Court states the case.

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

      Ernest O. Irwin, with him George F. Davenport and Watson da Freemam.., for appellant.

      Samuel S. Mehard, with him John O. MoGlintocTc, John E. Reynolds and Ghurehill B. Mehard, for appellee.
   Per Curiam,

The appeal in this case was from an order confirming the report of a referee appointed to state an account between partners. Upon the argument of the appeal in this court it appeared that there was a material matter as to which there was no distinct finding, and the case was recommitted to the referee. On all other questions the opinion of the court was expressed in the order filed in which it was said : “ In this case we have not discovered error in connection, with any question of fact or of law that was raised and passed upon below. On the material question of fact, as to whether Dick advanced for Huidekoper in the nature of a loan 3,000 shares of the capital stock of the Pittsburg, Shenango & Lake Erie Railroad Company, in what is known as the Carnegie deal, there is no distinct finding, and the record is remitted with direction that the court recommit the case to the referee, that he may pass upon, subject to its review, this one question, on the evidence already taken before him.” The referee, after a careful consideration of this question, reported that Dick had not advanced stock for Huidekoper, and his report was confirmed by the court of common pleas. The only open question in the case is one of fact as to the correctness of the referee’s finding. ~We see nothing in the evidence that would warrant a reversal of the decree.

The decree is affirmed.


author: Pee Curiam,

text:
    Commonwealth v. McKwayne, Appellant.

      Appeals — Assignments of error — Evidence.
    Assignments of error to the admission of testimony must set forth the testimony and the rulings of the court thereon.

      Criminal law — Evidence—Interest of prisoner — Credibility.
    On the trial of an indictment for murder it is proper for the court to charge that the interest of the prisoner may be taken into account by the jury in determining the credibility of the witness.

      Criminal law — Murder—Self-defense.
    The right to take life does not arise while there are other means of escape to the person attacked.
    Argued May 4, 1908.
    Appeal, No. 125, Jan. T., 1908, by defendant, from judgment of O. and T. York Co., on verdict of guilty of murder of the first degree in case of Commonwealth v. Richard McKwayne.
    Before Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Indictment for murder. Before Bittenger, P. J.
    The court charged in part as follows :
    [The commonwealth’s witnesses swear that accused demanded his time from Peterson at the cut, and threatened if he did not give the accused his time one of them would be in hell before night; that a man-by the name of Porter there on the ground handed Peterson a hatchet, during the controversy between him and the accused, which he immediately handed back to Porter.
    Further, that when the prisoner left the cut the last time he was there for the camp, he said he would see Peterson at dinner time. The defendant swears that Peterson called for a hatchet, and retained possession, of it in his hand when he left the cut for the camp. He also swears that Peterson said there to him, instead óf he saying to Peterson, when he refused to give him his time, that he would not give him his time that day, “ if both of them were in hell before night,” or words to that effect, and instead of him using that language to Peterson, Peterson used that language to him.
    Now, the testimony of the commonwealth is, as I said before, that he made threats against Peterson, and he said he would see Peterson at noon, and his own testimony is that Peterson said they might both be in hell before he would give him his time that day. Now, that is a matter that the 'jury will have to decide again. If you can reconcile the commonwealth’s testimony and the defendant’s own testimony, you should do so. But if both cannot be true — if both' statements cannot be true — it will be a question for the jury to determine whether they believe a man who is not accused of any crime, and is a disinterested witness for the commonwealth, or whether they will believe the testimony of the defendant who is swearing in his own behalf, with the interest of his life at stake. The jury have a right to remember, as the Supreme Court has said, when they consider the testimony of a defendant, it is their duty to consider the fact that at the same time he is swearing in his own behalf with the interest of swearing to escape punishment.] [1]
    Defendant presented these points :
    4. If the jury believe that the deceased threatened the life of the defendant, and that he approached the defendant in a manner which threatened defendant’s life, producing in his mind such great fear and terror that he was unable to think, reflect and weigh the nature of his act, he cannot be convicted of murder in the first degree. Answer: This point is affirmed, with the qualification that by the acts of the deceased, as stated in the point, the prisoner’s mind was in the condition stated in this point at the time of the shooting by the prisoner of the deceased. [3]
    May 18, 1908:
    8. If the jury find that the deceased approached the defendant in a threatening manner, and the defendant had a reasonable belief of great bodily harm, although mistaken, he cannot be convicted of murder in the first degree. Answer : This- point is affirmed, with the qualification that if the jury believe from the evidence that the prisoner believed further that he had no other means of escape. [4]
    9. If the jury find that deceased approached the defendant in a threatening manner, and the defendant had a reasonable belief of bodily harm, although mistaken, he cannot be convicted of murder in the first degree. Answer : This point is affirmed, if the jury believe that at the time of the shooting the prisoner so believed, and, further, that he believed he had no other means of escape. [5]
    Although the defendant was not in actual imminent peril of his life, or of great bodily harm at the time of the killing, he cannot be convicted of murder in the first degree, if in good faith he reasonably believed from the facts, as they appeared to him at the time, that he, the defendant, was in such imminent peril, even if it afterwards appears that he was mistaken. Answer: This point is affirmed, if the defendant believed he had no other means of escape. [6]
    Yerdict of guilty of murder of the first dógree upon which judgment of sentence was passed. Defendant appealed.

      Errors assigned were (1, 3-6) above instructions, quoting them, and (2, 1) rulings on evidence without setting forth the testimony of the ruling of the court.

      G. W. Albert Rochow, for appellant.

      James G. Glessner, ex-district attorney, with him Me Olean Stooh, ex-assistant district attorney, and Robert S. Frey, for the commonwealth.
   Pee Curiam,

Two of the assignments of error, the second and the seventh, are not in compliance with rule 31, which requires that the testimony and the rulings of the court shall be set out in the assignment. But, because of the nature of the case, we have examined these assignments to see whether there was any •merit in them. We find none.

The remaining assignments that need be considered relate ;to two subjects : (1) The instruction in the charge that the interest of the prisoner might be taken into account in determining his credibility as a witness ; (2) the statement qualifying the affirmance of defendant’s points that the right to take life did not arise while there were other means of escape open to the prisoner. The first instruction was fully warranted by the case of Commonwealth v. Orr, 138 Pa. 276, and the second was in entire accord with numerous decisions. See Commonwealth v. Drum, 58 Pa. 9 ; Commonwealth v. Mitchka, 209 Pa. 274; Commonwealth v. Johnson, 213 Pa. 432. The case was tried with great care, and was submitted to the jury with full and accurate instructions, and we find no error in the record.

The judgment is affirmed, and the record is remitted for the purposes of execution.


text:
    Oviatt, Appellant, v. Brownell.
    ■ Res adjudicatei — Scire facias sur mortgage — Judgment—Equity—Defenses not presented.

    On a bill in equity to restrain the issuing of an execution on a judgment obtained on a scire facias sur mortgage, the judgment on the scire facias is conclusive on the plaintiff, not only as to matters directly litigated and decided in the foreclosure proceedings, but also as to any grounds of recovery and defense that might have been presented and decided.
    Argued May 4, 1908.
    Appeal, No. 364, Jan. T., 1907, by plaintiff, from decree of C. P. McKean Co., June T., 1907, No. 1, dismissing bill in equity in case of Carrie A. Oviatt v. F: W. Brownell, Administrator of the Estate of Miller Stickles, deceased.
    May 18, 1908 :
    Before Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Bouton, P. J.
    The opinion of the Supreme Court states the case.
    The court dismissed the bill.

      Error assigned was decree dismissing the bill.

      Rufus B. Stone, with him Allan Oviatt, for appellant.

      E. R. Mayo c& Son, for appellee, were not heard.
   Per Curiam,

Briefly stated, the material allegations in the bill are that the plaintiff’s uncle held a mortgage on a farm owned by her mother; that in 1893, ten years before his death, he agreed with the plaintiff that if she would perform certain services for her mother and for him, she should have the farm at the death of her mother clear of incumbrance; that the services were performed, but that her uncle had failed to satisfy or release the mortgage; that the defendant, the administrator of his estate, had obtained judgment on the mortgage and threatened to issue execution thereon. The prayer is for an injunctionrestraining the defendant from issuing execution, and requiring a transfer of the judgment to the plaintiff.

It is averred in the answer that the whole subject of controversy was adjudicated in the proceeding on the mortgage. It appears from the record of that proceeding attached to the answer that the writ was issued against the plaintiff in this bill as administratrix of her mother’s estate ; that she filed an affidavit of defense in which she alleged that she was the sole owner of the property, and the scire facias was amended b}r naming her as terre-tenant; that one ground of defense at the trial distinctly raised by a request for charge was that the agreement recited in the bill in this case had been made and fully performed on her part. At that trial a verdict was directed for the plaintiff because of the insufficiency of the evidence to establish any valid defense, and the judgment was affirmed by this pnurt. See Brownell v. Oviatt, 215 Pa. 514. It is evident from that record that there had been a final adjudication of the controversy presented by the bill and answer in this case. But whether adjudicated or not, the plaintiff is concluded for the reason that a judgment is conclusive not only as to matters directly litigated and decided, but as to any grounds of recovery and defense that might have been presented and decided : Long v. Lebanon Nat. Bank, 211 Pa. 165.

The decree dismissing the bill is affirmed at the cost of the appellant.


author: Mr. Justice Stewart,

text:
    Hannum, Appellant, v. Media, Middletown, Aston and Chester Electric Railway Company.

      Appeals — Equity—Equity practice — Reinstating bill.

    Where the Supreme Court in reversing a decree dismissing a bill in equity directs that the bill be reinstated, and an injunction awarded, with leave to the defendant to move the court below to open the case for further testimony, the effect of the order of reversal is to restore the case to exactly the standing it had before the decree dismissing the bill had beenentered, and the court below may proceed to take additional testimony and may, without exceeding its authority, again dismiss the bill.

      Street railways — Branch of extension — Street already occupied.

    A property owner has no standing to complain of a street railway company using a street already occupied by an existing railway, where it appears that the company does not contemplate the construction of a branch of its own on the street, but purposes to use the existing track to link all the branches of the company with its main trunk line.
    A street railway authorized by its charter to build branches and extensions, may employ as a connecting link between its main line and the proposed extensions or branches, the tracks of another company for a short distance, under agreement with the latter company. In such case the statutory prohibition against the construction of a line of railway upon a street already occupied by a railway has no application.
    The charter of a railroad company may not authorize the company to construct, maintain and operate a railway on any street already occupied by the.tracks of a railway; but in case of branches and extensions the prohibition is limited merely to the construction in any street on which a track of another company has been laid. If the younger company secures from the older company the right to use a short portion of the latter’s lines, so as to make a necessary connection between branches and the chartered route, it in no way violates the law.
    The grant to the company of the right to make extensions carries with it by implication everything, except what was expressly withheld, necessary to make the grant effectual.
    A landowner cannot object by a bill in equity filed under the Act of June 19, 1871, P. L. 1360, to the abandonment of a part of the chartered route of a street railway company, and the substitution of another line, where it appears that the abandonment was made in pursuance of authority derived from the stockholders of the company; that the consent of the townships through which the chartered route led was duly granted; and that the action of the company and the consent of the several municipalities were duly certified to the secretary of the commonwealth.
    The deviation by a street railway from its chartered route will be presumed to have been due to considerations of public convenience, in the absence of anything appearing to the contrary.
    Argued Feb. 11, 1908.
    Appeal, No. 39, Jan. T., 1908, by plaintiff, from decree of C. P. Delaware Co., Sept. T., 1899, No. 196, dismissing bill in equity in-case of John B. Hannum v. The Media, Middletown, Aston and Chester Electric Railway Company and the Philadelphia, Morton and Swarthmore Street Railway Company.
    Before Mitchell, C. J., Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in dismissing the bill.

      O. B. JDiolcinson, for appellant.
    The former order of this court was this decree reversed and bill ordered to be reinstated and injunction awarded, with leave to appellee to move the court to open the case for further testimony, etc. We leave this branch of the case with the statement that the bill which this court ordered to be reinstated the court below dismissed, and the injunction which this court awarded the court below dissolved: Hannum v. Media, etc., Electric Railway Co., 200 Pa. 44.
    All that need be said with respect to the act of the appellee in making the tracks of another railway a part of its route, is that this sets at defiance the act of assembly, which expressly limits the right of construction to streets upon which no other railway is laid or authorized to be laid : Osborne v. Railway Co., 9 Pa. Superior Ct. 632.
    May 25, 1908 :
    A company with a charter route which taps an extensive and populous outlying district would bring to the city much of benefit as a consideration for the valuable privileges which the city had to give. Appellant’s position is that the company, having obtained the city franchise, cannot use it and refuse to construct the charter route which was the price of the privilege.

      E. A. Howell and Ellis Ames Ballard, with them Dmid Waller stem, for appellees.
    It is immaterial whether the court below exceeded the permission granted by this court when reversing the former decree, or did not: American Mfg. Co. v. S. Morgan Smith Co., 25 Pa. Superior Ct. 176.
    Again, no legislation in Pennsylvania has ever limited the amicable use of the tracks of another company as a connection ; the only limitation is as to adverse use : City of Chester v. Union Ry. Co., 218 Pa. 24 ; Nanticoke Suburban St. Ry. Co. v. People’s St. Ry. Co., 212 Pa. 395 ; Com. v. Bond, 214 Pa. 307.
    A company may vary its charter route, and if such variance is greater than necessary, or if the charter route is open to objection, the commonwealth alone can make it in the interest of the general public : Penna. R. R. Co. v. Street Ry. Co., 176 Pa. 559 ; Rahn Twp. v. Ry. Co., 167 Pa. 84.
    For an unconstructed- street railway the consent of the municipalities through which its charter route passes only, is necessary to an abandonment of a portion of that route. The consent of the municipalities through which it has filed extensions need not be secured.
   Opinion by

Mr. Justice Stewart,

In compacting the ninety-one assignments of error which here confront us into five questions, and very clearly and concisely stating these, the learned counsel who argued the case for appellant has saved us both time and labor which otherwise would have been unprofitably expended. We shall confine ourselves to these questions, observing the order in which they have been presented. A brief statement of facts, however, is necessary to a proper understanding of their significance. The charter route of defendant’s railway extended from a point at Elvvyn station, on the Philadelphia, Wilmington and Baltimore Railroad, through the township of Middletown and Chester, to a point on the northern boundary of the city of Chester. By appropriate action taken by the stockholders and directors, and with the consent of the municipalities through which the route passed, so much of the route as led to Elwyn, from a point a short distance south of that station, was abandoned, and from that point a line leading to the borough of Media was adopted. The defendant company thereafter adopted certain extensions from its southern terminus upon and over certain of the public streets in the city of Chester, the design being to establish a connected and continuous system of street railways in said city, in conjunction with defendant’s main line to Media borough. Connection between these several extensions and the main line could be made, however, only by the use of a street in the city known as Edgmont ' avenue, a necessary part of which was already occupied by the tracks of another railway. Resolutions providing for one of the extensions, adopted the avenue as part of the route, notwithstanding its previous occupancy by another railway. Municipal consent was given to the extension determined upon. Two of these proposed extensions were along certain streets on which the plaintiff owned property, but the occupancy contemplated was on the farther side. The bill filed in the case set forth the company’s charter and the several extensions determined upon, and averring that irreparable injury.would result to plaintiff’s property from the construction of the extensions, challenged the franchise .of the defendant company in this connection on several grounds, and prayed that its right to build the proposed extensions might be judicially inquired into. A preliminary injunction to preserve the status quo until final determination of the case was granted. Upon hearing the bill was dismissed. An appeal followed which resulted in a reversal of the decree: Hannum v. Media, etc., Electric Railway Co., 200 Pa. 44.

1. In reversing the decree this court directed that the plaintiff’s bill be reinstated, and an injunction awarded, with leave to the defendant to move the court below to open the case for further testimony. The decree was reversed because the defendant had not met the burden of proof that was upon it with respect to certain facts alleged in plaintiff’s bill, which, if true, operated in law to defeat its claim of right to construct the proposed extensions. In allowing the case to be opened on defendant’s motion, the purpose was to afford the defendant an opportunity to supplement its proofs, and establish, if it could, its right to do what it proposed. The injunction though awarded by this court, was issued from the court below. In awarding it, the purpose was to restore the case to exactly the standing it had before the decree dismissing the bill had been entered. The additional testimony to be taken under the order allowing the case to be opened, was for the consideration of the court below; and for this court, only as error was assigned to the findings and conclusions of the court below with respect to it, on appeal. In a word, the case was remitted to be proceeded with on defendant’s motion just as though it had not been adjudicated. The objection that in entering the decree from which the present appeal is taken, dismissing the plaintiff’s bill, the court exceeded the authority given it under the decree of this court, has nothing to support it. The court below correctly interpreted the order made, and the case was proceeded with in exact compliance with the order. There can be no occasion for misunderstanding with respect to the costs. In reversing the former decree the order of this court was, that “ all costs up to the present time be paid by the defendant.” ¥e pass to the second question, which is :

2. May a railroad be lawfully constructed as a branch, when the branch is proposed to be laid along a street which for more than 2,500 feet is already occupied by an existing railway ? The reference here is to the occupancy by the defendant company of part of Edgmont avenue on which the Chester Traction Company had a line of street railway. From an examination of the map furnished us, it clearly appears that the 4,000 feet on Edgmont avenue over which defendant’s extension was projected, .and upon which are the tracks of another company, is the nexus which links all the extensions of the defendant’s road in the city of Chester with the defendant’s chartered route. A break at that point, which must result if appellant’s contention be sustained, would be a fatal severance to the branch lines, since it would leave them wholly disconnected from the chartered route, and, therefore, without legal existence. In view of the large expenditure of money made in the construction of the several extensions — they have been constructed and are now being operated — and in view of the fact that they compose so large a part of defendant’s system, such a result would be little less than disastrous to the company. That is a circumstance, however, not to be considered in the determination of the present controversy, except as the general equities in the case, if there be any, make a consideration of it proper. The particular question here propounded has no application to the facts Of this case. The defendant company never proposed, and, so far as we can see, never contemplated, the construction of a branch of its own on that part of Edgmont avenue which was occupied by the existing railway. Its purpose from the beginning was to subject in some way to its use, so much of the line of track owned by the other company on Edgmont avenue as was necessary to link the connecting branches with the trunk road. The resolutions ordering the extensions expressly so provide. Had these resolutions been part of the original charter route, such a provision appearing in the application for the charter would have either operated to defeat the application, or have rendered nugatory any charter that might have been granted thereon, for the reason that the act of assembly under which the company was chartered— Act of May 14, 1889, P. L. 211, sec. 1 — authorizes only the incorporation of street railway companies for constructing, maintaining and operating street railways on streets or highways upon which no track is laid or authorized to be laid. But here we have no question as to the existence or validity of the defendant’s charter; even though the company’s right to maintain the extensions were to be denied, the company’s lawful existence and the right to maintain its trunk lines would not be affected thereby. This feature of the case, though without significance in this connection, may call for further consideration when we come to the discussion of the next question submitted.

3. Can a street railway company make use of the tracks of another railway to connect its chartered route with the branch otherwise disconnected ? We adopt this form of the question because more concise than that formed by appellant’s counsel. It eliminates some matters which may be regarded as superfluous. The question raised does not assail the integrity of the defendant’s charter; it simply challenges the right of the company to do the thing complained of under an unimpeached charter. The charter gave the company the right to make such extensions or branches as it might deem necessary to increase its business and accommodate the travel of the public. The questions submitted concede that the company has in all respects complied with the provisions of the act of assembly relating to extensions or branches, except in the fact complained of, the adoption of another company’s line, to connect its main line with its extensions. Does the limitation imposed in connection with the charter of street railway companies, that is to say, the provision which limits their right to streets on which no track has been laid or authorized, apply as well to extensions and branches? We can see nothing in the language of the act, nor yet in the general purpose to be accomplished thereunder, that would warrant an affirmative answer to this question. The limitation in express terms is upon the right to obtain a charter. We would naturally look for any limitation upon the right of a company legally chartered, to do those things which such companies are expressly authorized to do as they may deem necessary to increase its business and accommodate public travel, to be none the less explicit. The section of the act which imposes the charter limitation says nothing about branches; its reference is to companies to be formed, and it prescribes the conditions on which the charter may issue-. It is the fourth section of the act that allows extensions to be made by companies acting under a sufficient charter. These extensions are allowed whenever a company may deem them necessary to increase its business to accommodate the public, and but a single limitation upon the right is imposed, viz.: that no extension or branch shall be constructed upon a street upon which a track is already laid or authorized. There is such a manifest distinction between the charter limitation and that imposed with respect to extensions, that the difference can be accounted for only as we understand each to apply exclusively to its own distinct subject, without relation to the other. The limitation in case of the former is that the charter may not authorize a company to construct, maintain and operate a railway on any street already occupied by the tracks of a railway. The thing not allowed is the chartering of a company where the purpose is to construct an additional track upon a street already occupied, and maintain and operate such track. The limitation upon the extension is, that it shall not be constructed in any street on which a track of another company has been laid. The evident purpose in each case is to protect the property rights of already existing companies, and perhaps to save the public streets from an excessive servitude of this character which may interfere with the public use of them, but the several limitations are clearly distinguishable. To accomplish the object in one case it was necessary to expressly disallow the incorporation of companies where the application showed a purpose to adopt a route which had been already appropriated; to accomplish it in the other case, the companies chartered were prohibited from constructing an extension or branch on a street previously occupied; and this is the only prohibition here imposed. The southern terminus of defendant’s road as chartered was the northern boundary of the city of Chester. Concededly the company had a right to adopt an extension into and within the city limits, only in so doing it was prohibited by law from constructing a track upon a street where one was already in existence. If it observed this prohibition and' had municipal consent, its right was complete. But the'company found the only street which admitted of convenient and direct connection with the extensions it proposed to build, already occupied by the tracks of another company. The use of this street for a distance of 4,000 feet was absolutely necessary to carry out the legitimate purpose of the company. • To meet this necessity, without transgressing the law which forbade the construction of a parallel line, it acquired the right from the superior company to use the latter’s track for the required distance, and was thus enabled to establish a connected system. In so doing it violated no express provision of the law ; did not defeat its purposes in any respect, and was clearly acting within, the rights implied in the legislative grant. The grant to the company of the right to make extensions carried with it by implication, everything except what was expressly withheld., necessary to make the grant effectual. What was here withheld was the right to construct an additional track where one existed. This the company has not done or attempted to do. What it has done does not fall within the letter or spirit of the exception. The answer to this question must be a vindication of the company’s right in the premises.

4 and 5. These questions relate to the effect of the abandonment by the defendant company of that part of its chartered route which led to Elwyn, and the substitution therefor of the line to Media. The court below found as a fact that the abandonment of the part of the chartered route here complained of, was pursuant to authority derived from the stockholders of the company; that the consent of the townships through which the chartered route led was duly granted, and that the action of the company and the consent of the several municipalities were duly certified to the secretary of the commonwealth. We may add that the evidence shows acts of acquiescence and ratification on the part of the city of Chester — not here complaining — quite as conclusive. The proceedings taken to effect a variation from the chartered- route being found regular, and the acquiescence of the municipalities affected being shown, it does not rest with the plaintiff to call in question the propriety or necessity of the deviation, or the sufficiency of the defendant’s action in this regard. The deviation from the chartered route in this case was determined upon evidently by considerations of public convenience. The defendant company had at least the right to the benefit of such presumption, in the absence of anything appearing to the contrary. In Penna. Railroad Co. v. Street Railway Co., 176 Pa. 559, we held that: The occasion for such divergence and its extent, are questions of location, and the decision of them primarily is within the discretion of the railway company. If the variance from the charter route is greater than is necessary, or the charter route itself is open to objection, the commonwealth alone can be heard to make it in the interest of the general public.”

This proceeding was under the Act of June 19, 1871, P. L. 1360. The act authorized no inquiry in such cases except as to the charter right to do the act complained of. Here, the defendant company has shown a full legal franchise vested in itself to do what is made the subject of complaint.

The assignments of error are therefore overruled, the appeal is dismissed at the costs of appellant, and the decree is affirmed.


author: Mr. Justice Fell,

text:
    Walsh v. Pittsburg Railways Company, Appellant.

      Negligence — Electric power company — Defective cable — Infant—Trespasser — Case for jury.

    There is a duty to a trespasser not to injure him intentionally or wantonly by any act to expose him to danger.
    In an action by a girl nearly nine years old against an electric power company to recover damages for personal injuries, it appeared that the plaintiff went upon a lot owned by the defendant on which was an electric power house which operated a wire cable on a railroad track constructed over the lot. At the time of the accident plaintiff was standing on the track near the cable. While she was standing there, an employee of the defendant passed along very close to her, entered the power house, and in a few seconds the machinery was put in motion and the cable started. As it moved it was raised a foot or two from the ground. It was worn and frayed, and at places loose ends of wire stuck out. It caught the plaintiff's dress, and she was injured thereby. The lot where the accident occurred was at times used by children who lived in the neighborhood as a playground, and plaintiff was attracted to the spot where she was injured, by a fight in which some boys were engaged. Held, that the case was for the jury and that a verdict and judgment for plaintiff should be sustained.
    Argued Nov. 1, 1907.
    Appeals, Nos. 120 and 121, Oot. T., 1907, by defendant, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1905, No. 107, on verdict for plaintiffs in case of Dorothy E. Walsh, a minor, by her next friend and father T. E. Walsh, and T. E. Walsh v. Pittsburg Railways Company.
    Before Eell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Kennedy, P. J.
    The circumstances of the accident are set forth in the opinion. of the Supreme Court.

      May 25, 1908 :
    Yerdict and judgment for Dorothy E. Walsh for $4,500 and for T. E. Walsh for $1,250.
    Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      William A. Challener, with him Clarence Burleigh and James C. Cray, for appellant.
    It is settled by abundant authority that to enable a trespasser to recover for an injury he must do more than show negligence. It must appear that there was a wanton or intentional injury inflicted upon him by the owner : Gillespie v. McGowan, 100 Pa. 144; Rodgers v. Lees, 140 Pa. 475 ; Baltimore & Ohio R. R. Co. v. Schwindling, 101 Pa. 258 ; Walsh v. Fitchburg R. R. Co., 145 N. Y. 301 (39 N. E. Repr. 1068); Buch v. Amory Mfg. Co., 69 N. H. 257; Uthermohlen v. Bogg’s Run Co., 50 W. Va. 457.

      Body P. Marshall, with him Thos. M. Marshall, for appellee.
    The case was for the jury: Taylor v. Delaware & Hudson Canal Co., 113 Pa. 162 ; Phila. & Reading R. R. Co. v. Troutman, 11 W. N. C. 453 ; Kay v. Penna. R. R., 65 Pa. 269 ; Enright v. R. R. Co., 198 Pa. 166; Biddle v. Ry. Co., 112 Pa. 551.
   Opinion bt

Mr. Justice Fell,

The defendant was the owner of a lot 185 by 400 feet, at the corner of Preble avenue and Juniata street in Allegheny city, on the end of which furthest from Preble avenue it had an electric power house. A part of the lot nearest Juniata street was unoccupied and was at times used by children who lived in the neighborhood as a playground. Back of this part were piles of coal, paving stones, ties and rails ; and back of these a railroad track, used for the transportation of coal cars, extended from Preble avenue to the power house. At the side of this track on an embankment seven feet high there was a track on which a car used to remove ashes was operated by means of a wire cable. At the end of this track fifty feet from the top of an incline rising from ash pits connected with the power house, there was a building ten feet square in which there was an electric motor and a drum around which, the cable was wound. The ash car when loaded was drawn from a tunnel in front of the ash pits up the incline and on the embankment, and the ashes were dumped into a railroad car on the lower track. There had been no permissive use of any part of the lot except that fronting on Juniata street and nearest to it.

The plaintiff, a girl eight years and eight months old, went to the lot to witness a fight in which some boys were engaged. She walked from Juniata street across the vacant part of the lot, a distance of 130 feet, to the vicinity of the power house and up the embankment, and stood between the rails close to the cable and a foot and a half or two feet from the door of the motor house. While she was standing there, an employee of the defendant whose business it was to operate the motor came along the track from the power house, passed by and close to her, “ so close he nearly brushed her clothes,” and entered the motor house. Within a few seconds after he entered the house, the machinery was put in motion. The cable when in motion was raised a foot or two from the ground. It was worn and frayed, and at places loose ends of wire stuck out. It caught the plaintiff’s dress, and she was drawn into the drum and injured.

The plaintiff was on the private property of the defendant, where she had no right to be. Its employees were not bound actively to care for her by keeping her off the lot or by protecting her after she had entered it from injury that might result from the condition of the property. The standard of duty in such a case is the same whether the person injured is an adult or a child: Thompson v. Railroad, 218 Pa. 444. There was, however, a duty not to injure her intentionally, or wantonly by any act to expose her to danger. Even trespassers are entitled to human consideration : ” Barre v. Reading City Pass. Ry. Co., 155 Pa. 170. If the man who started the motor knew at that time that the plaintiff was standing between the rails close to the frayed cable, which would touch her dress when in motion, arid from his knowledge of the circumstances was conscious that she would be exposed to danger if the machinery was put in motion, a duty of care arose, as it would in the case of an engineer who sees a child-on the track in front of his engine. The case would then come within the class of which Biddle v. Railway Co., 112 Pa. 551; Levin v. Traction Co., 194 Pa. 156 ; Enright v. Railroad Co., 198 Pa. 166 ; and Pollack v. Railroad Co., 210 Pa. 631, where children were driven from moving cars, are types.

The presence of this man could not be secured at the trial by either party, and the jury were left to inference as to his knowledge of the situation. The facts established by the testimony as a basis for the imputation of knowledge to him were that he had been in charge of the machinery for several months, and that he walked fifty feet up the track towards the plaintiff and passed close by her at the door of the building as he entered it. He must have known that the cable would be raised when in motion, because it was a part of the machinery he operated. Presumably he knew that it was frayed, because it was constantly before his eyes. He had the fullest opportunity to see the plaintiff, to observe where she stood in relation to the cable, and to realize the consequences that would probably result from his act. Whether he actually saw her and was conscious that his act exposed her to danger, were questions for the jury.

The judgments are affirmed.


author: Mr. Chief Justice Mitchell, Mr. Justice Mestrezat,

text:
    Commonwealth v. Shults, Appellant.

      Criminal law — Murder—Insanity—Charge.
    It is not error for a judge to so charge in a homicide case as to give the jury the impression that he regards the testimony submitted on behalf of the defendant as not entitled to much weight so long as the jury are left in the free exercise of their own judgment.
    In a murder case a trial judge cannot be convicted of error in charging on the subject of insanity as follows: “The jury are not bound to decide this case according to the views of the doctors, one way or the other. The doctors are not the jury. They cannot take the stand and say such and such is the case, and then decide the case. Although you have been told that you are bound by the evidence, or as much of it as you believe, when you come to medical testimony, or any other expert testimony, that is merely opinion testimony. It may be of value, and it may be of no value just as it appeals to you. ... It is for you to decide whether they are worthy of any consideration, or whether they are not worthy of consideration at all, and if you think that they are worthy of consideration you will decide how much they are worth, and how much you will give to them. If you consider the testimony cannot do you any particular good, you will dismiss it, but whether you will dismiss it or not, is entirely a matter for you, and what effect you will give to it is also a matter for you.”
    Mestrezat, Brown and Stewart, JJ., dissent.
    Argued March 23, 1908.
    May 25, 1908:
    Appeal, No. 83, Jan. T., 1908, by defendant, from judgment of O. & T. Phila. Co., June T., 1907, No. 175, on verdict of murder of the first degree in case of Commonwealth v. Francis Marion Shults.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Indictment for murder.
    The opinion of the Supreme Court states the case.
    Yerdict of guilty of murder of the first degree, upon which sentence was passed.

      Error assigned was portion of charge, quoted in the opinion of the Supreme Court.

      Sidney L. Krauss, with him William A. Carr and W. Horace Hepburn, for appellant.

      Wm. Findlay Brown, assistant district attorney, with him Samuel P. Botan, district attorney, for appellee.
   Opinion by

Mr. Chief Justice Mitchell,

The only assignments of error that need be noticed are those relating to the evidence of the experts as to insanity, and these are practically all condensed in the exception to that portion of the charge in which the judge said to the jury: “We will now come to the medical testimony. I will say to you on that score that you are not bound to decide this case according to the views of the doctors one way or the other. The doctors are not the jury. They cannot take the stand and say such and such is the case and then decide the case. Although you have been told that you are bound by the evidence, or as much of it as you believe, when you come to medical testimony or any other expert testimony, that is merely opinion testimony. It may be of value and it may be of no value, just as it appeals to you. One side puts an expert on the stand and he gives his opinion, and the other side puts an expert on the stand and you get the opinion of that doctor. They are both cross-examined, and it is for you to decide in considering all their evidence, whether you will be guided to any degree by their opinions, whether you think they’are worthy of any consideration or whether you think they are not worthy of consideration at all. If you think they are worthy of consideration you will decide how much they are worth and how much you will give to them, judging by the examinations and cross-examinations and the whole probabilities of the testimony as applied to the facts as you find them. If you consider, the testimony cannot do you any particular good, you will dismiss it, but whether you will dismiss it or not, is entirely a matter for you, and what effect you will give to it is also a matter for you.”

The law as laid down in this passage, even taking it as it is, separated from its context is entirely accurate. The jury are not bound to decide this case according to the views of the doctors one way or the other.” That is correct. It may be of value or it may be of no value, just as it appeals to you .... it is for you to decide whether they áre worthy of any consideration or whether they are not worthy of consideration at all, and if you think they are worthy of consideration you will decide how much they are worth and how much you will give to them.” This is no more than telling the jury that the credibility of the testimony and the weight it is entitled to in reaching a verdict is exclusively for the jury to determine.' That is the settled law of all the cases. Arid even if we seem to see in the phrasing of the charge that the judge did not think the testimony of much weight, that was not error. He might have gone further and told the jury • in explicit terms that he considered it very weak : ” Com. v. Van Horn, 188 Pa. 143. So long as the jury were left in the free exercise of their own judgment there was no error. That the jury in this case were so left is beyond question. Even the particular passage excepted to, concluded with the words, whether you will dismiss it or not is entirely a matter for you, and what effect you will givé it is also a matter for you.”

So far the passage of the charge excepted to has been considered by itself, apart from its context. But that is not the rule. The charge can only be considered fairly as a whole, and the charge in the present case repeatedly and most explicitly told the jury that the weight and effect of the testimony on every branch of the case was for them to decide on their own judgment.

The killing was admitted, and even the premeditation, the deliberate preparation for the murder, was not denied. The only possible point of doubt in the case arose from the apparent absence of any sane motive for the act. This was altogether a question for the jury, and if they took a severe view it was not from any error of the judge.

Judgment affirmed, and record remitted to the court of oyer and terminer for the purpose of execution.

Mr. Justice Mestrezat,

dissenting:

I would sustain the assignments of error, so far as they allege inadequacy in the charge of the court on the question of insanity. I am convinced that the charge in this respect was insufficient, and to a certain extent misleading, and that the case was not submitted to the jury in accordance with the law as determined by this court. In Pannell v. Commonwealth, 86 Pa. 260, the defense was insanity. As here, the trial judge seemed to regard the testimony of medical experts as of little or no value. There was a verdict of guilty of murder of the first degree. In reversing the judgment this court said, inter alia (p. 269): “ It is well settled that the knowledge and experience of medical experts is of great value in questions of insanity. They are like those of experts in all other branches of science and of art. Evidence had been given of the observation, experience and skill of these medical experts, sufficient to enable them to form intelligent opinions, and they had testified to. those opinions. We cannot understand on what principle the learned judge said to the jury that in this case he questioned very much whether they would realize much, if any, valuable aid from their testimony. True, the jury were not bound to adopt the conclusions of the experts, yet they should have been instructed to give a careful consideration to the testimony of those who had made the diseases of the human mind a special study. In a former part of the charge the jury was told that ‘ great respect should be paid to the opinion of that class of witnesses,’ followed by other remarks equally correct. Yet, when the court came to apply the testimony to the case trying, its effect was almost destroyed. We see no especial circumstances in this case to justify taking from the evidence of these medical witnesses that consideration to which the testimony of experts is generally entitled.” The doctrine announced in this case has never been doubted or overruled by this court. It is unquestionably sound, and should be followed in all cases where the defense is insanity. The testimony of medical experts is frequently, and sometimes the only, testimony upon which a defendant must rely to support the defense of insanity. Who can know so well the action or operation of the human mind as the medical expert who has made it a special study and matter of assiduous inquiry ? He is universally recognized as the most competent to speak on the subject, and hence it is that in our system of jurisprudence his testimony is to be given very careful consideration by the jury where the defense is insanity. This being true, it devolves upon the trial court to explain to the jury the character of such testimony and the weight to be given to it. This is a duty incumbent upon the trial judge, and a failure to perform it should be ground for reversal. It is error for the trial judge to ignore the testimony, or to place it on a par with the testimony of a layman. It is true that it is for the jury in considering the defense of insanity to determine what weight the testimony of a medical expert shall have, but the court should have instructed the jury that, in weighing his testimony, they should consider that he had fitted himself to testify by a special study of the subject. Such testimony must not be discredited by stating that it is merely opinion testimony, without reference to the opportunities of the .witness for qualifying himself to speak on the subject. Even in civil cases, where there is a conflict in the testimony, it is the duty of the trial judge to direct the attention of the jury to the opportunities the witnesses have for knowing what they are testifying about. The opportunity of the witness for obtaining a knowledge of the subject, as well as his superior ability to judge of the matters of which he speaks, are always matters which a jury should consider in giving weight to testimony, and hence the duty rests upon the trial judge to point out such distinction between witnesses, when it occurs, so that the jury may consider properly and intelligently the testimony for and against the proposition submitted for their determination. This is true in civil cases, and the rule should be strictly observed in cases involving a human life.

The majority opinion quotes the part of the charge bearing upon the evidence given by the medical experts on the question of the insanity of the defendant. No other part of the charge cures the error it contains. It is impossible to reconcile it with our decisions. The judge said: “ I will say to you on that score (medical testimony) that you are not bound to decide this case according to the views of the doctors one way or the other. The doctors are not the jury.” This proposition, as stated, is not sound. The jury were bound to decide the case according to the testimony of the medical experts if that testimony outweighed the conflicting testimony in the case. If it convinced the jury, they were bound to render a verdict in accordance with it. The tendency of the language just quoted was to discredit the medical testimony with the jury, if not to compel them to ignore it. It was not intimated in thé case anywhere, even in the heated arguments of counsel, that the doctors were the jury. The suggestion that they were not the jury was ill-timed and should have been omitted from the charge. It might have been permissible in the arguments of counsel, but should have had no place in the charge of the court. The learned judge, however, did not stop with this expression of his views oil the subject. He further said: “ They (the doctors) cannot take the stand and say such and such is the case, and then decide the case.” The counsel for the defendant advanced no proposition of that kind. It was not suggested nor even intimated in the case until the learned judge, by this unfortunate expression, left the impression that the medical testimony was offered for that purpose. He again says in his charge: “ When you come to medical testimony, or any other expert testimony, that is merely opinion testimony.” What was the jury to infer from that remark ? Simply that the medical or expert testimony was to be considered the same as the testimony of the laymen, without the jury taking into consideration the fact that the physicians had qualified themselves to speak upon the subject. The judge did not stop there in discrediting the testimony of the medical experts, but he continued: “ It (medical testimony) may be of value and it may be, of no value, just as it appeals to you.” In other words, “you may give it consideration or you may ignore it; if, like many laymen, you think expert testimony is of no value then you may, as you doubtless will, disregard it in determining the question of the prisoner’s sanity.” The learned judge then proceeded to say : “ It is for you to decide, in considering all the evidence, whether you will be guided to any degree by .their opinions, whether you think they are worthy of any consideration, or, whether you think they are not worthy of consideration at all.” In the broadest manner possible, therefore, the jury were told that it was wholly a question for them to determine whether they would give any consideration whatever to the testimony of the medical experts. The attention of the jury was not directed to what this court said was important, viz.: that they should “ give a careful consideration to the testimony of those who made the diseases of the human mind a special study.” On the other hand, and directly in opposition to the ruling of this court, the trial judge in the case at bar told the jury that it was entirely with them to say whether such testimony was worthy of consideration at all. In view of the fact, undisputed and uncontroverted, that the two medical experts called by the defendant were of the highest standing in their profession and of recognized ability, the error of the trial judge is so palpable and does such great injustice to the defendant that the conviction should be reversed without any hesitation whatever.

The charge was not only erroneous and inadequate as to the effect and weight which should have been given to the medical testimony, but it was also clearly inadequate in not pointing out the absence of any sane motive whatever for the commission of the offense by the defendant. In fact, it cannot be pretended under the testimony in the case that there was any motive which a sane mind could have for the commission of the atrocious crime of which the defendant was convicted. It is true, that where the accused denies that he committed the act, or where it is admitted or established that he did commit it, the motive is unimportant in determining guilt, but we distinctly ruled, in Commonwealth v. Buccieri, 153 Pa. 535, that where insanity is set up as a defense the absence of any motive which would prompt a sane man to commit the deed adds to the strength of positive evidence of unsoundness of mind. Here, the defense was insanity, and if the medical testimony on the part of the defendant was believed that defense was sustained. The absence of a sane motive for the defendant taking the life of his five year old child was, therefore, important, and would have tended strongly to support the defense of insanity. In a very lengthy charge, the court does not refer to the absence of a motive for the commission of the offense, and hence that important element in sustaining the defense is not brought to the attention of the jury, as it unquestionably should have been. It was the duty of the trial judge to charge fully upon the law applicable to the facts of the case without any special request on the part of the defendant. In cases of this character, the court performs its duty only when it instructs the jury upon the law which is applicable to the facts disclosed by the evidence in the case. As correctly said by Mr. Justice Paxson in Meyers v. Commonwealth, 83 Pa. 131, 143: “ The rule that a judge is not to be convicted of error for what he omits to say, unless his attention is called to the subject by a point or request to charge, is well enough in civil cases, but ought not, in my judgment, to be applied to a capital case. The prisoner has a right to have the jury properly instructed upon every question of law legitimately raised by the evidence. This right he cannot waive, nor can his counsel do so for him.”

The facts of this case made it especially important that the trial judge should have directed attention to the testimony of the medical experts and the weight which it should receive. A father wandered with his five year old daughter to Fair-mount Park, there wrote a letter in which he spoke most endearingly of the child and other members of the family, and within a short time thereafter was found in the park with his dead child pressed to his breast with a fatal bullet wound in her body and his own throat cut. The defense was psychic epilepsy or epileptic insanity, and there was evidence showing that the defendaut had received a blow on the head in his early youth which might have resulted in insanity, that at times he suffered with his head, had convulsions, was melancholy and morose, and had spent a year in an insane asylum. No motive which could have prompted a sane mind to commit the horrible deed was given or even intimated on the trial. In my judgment, the facts of this case required the trial judge, not to minimize the value and weight of expert testimony as he did in his charge but, as we held in the Pannell case, he should have told the jury “ that the knowledge and experience of medical experts is of great value in questions of insanity,” and should have instructed them “ to give a careful consideration to the testimony of those who made the diseases of the human mind a special study.”

I would reverse the judgment and award a new trial.

Mr. Justice Brown and Mr. Justice Stewart concurred in the dissent.