text:
    Gable v. Sisters of St. Francis, Appellant.

      Negligence — Public charity — Hospital—Exemption from suit for damages for tort of servant.

    1. A purely public charity cannot be made liable for the tort of its servants.
    2. A corporation which has erected a hospital out of charitable bequests, and maintains it from charitable donations, and admits every person to its care, irrespective of religious faith or ability to pay, is a purely public charity, and not liable for personal injuries caused by the negligence of a nurse in the hospital, and it is immaterial that the person injured was a pay patient, and that one-third of the hospital’s space was used for the care of pay patients; and it is also immaterial that the person injured in a suit against the hospital has filed a paper disclaiming any right of execution against any fund held for charitable uses and all income other than that received from pay patients.
    Argued Jan. 6, 1910.
    Appeals, Nos. 290 and 291,
    Jan. T., 1909, by defendant, from judgment of C. P. No. 1, Phila. Co., June T., 1905, No. 2,784, on verdict for plaintiffs in case of John F. Gable and Mollie Gable v. Sisters'of • St. Francis of Philadelphia.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Brégy, P. J.
    The opinion of the Supreme Court states the case.
    At the trial the jury returned a verdict for $6,000 for plaintiff, Mollie Gable, and $350 for her father, John F. Gable.
    Judgment was entered for Mollie Gable for $3,650, all above that sum having been remitted, and judgment was entered for John F. Gable for $350. Defendant appealed.

      Error assigned among others was (25) in refusing binding instructions for plaintiffs.

      Theodore F. Jenkins, with him J. Peter Klinges, for appel- ■ lant.
    — The fact that some of the patients paid does not make the hospital any the less a charity. The judgments of this court and of the appellate courts of the other states establish that the defendant is conducting a charity and therefore is not liable for the negligence of its officers, agents or servants necessarily employed in the carrying on of the charity, though some of the patients contribute towards its support: Daly’s Est., 208 Pa. 58; Fire Ins. Patrol v. Boyd, 120 Pa. 624; Richards v. Willard, 176 Pa. 181; Donohugh v. Library Co., 86 Pa. 306; Phila. v. Penna. Hospital, 154 Pa. 9; House of Refuge v. Smith, 140 Pa. 387; Penna. Hospital v. Del. County, 169 Pa. 305; Episcopal Academy v. Phila., 150 Pa. 565; Phila. v. Women’s Christian Assn., 125 Pa. 572; Northampton County v. Lafayette College, 128 Pa. 132; Ford v. School Dist., 121 Pa. 543; Downes v. Harper Hospital, 101 Mich. 555 (60 N. W. Repr. 42); Hearns v. Waterbury Hospital, 66 Conn. 98 (33 Atl. Repr. 595); McDonald v. Mass. Hospital, 120 Mass. 432; Van Tassell v. Manhattan Eye & Ear Hospital, 15 N. Y. Supp. 620; City of Richmond v. Long, 17 Gratton (Va.), 375; Murtaugh v. City of St. Louis, 44 Miss. 479; Sherbourne v. Yuba County, 21 Cal. 113; Farrigan v. Pevear, 193 Mass. 147 (78 N. E. Repr. 742); Brown v. Vinalhaven, 65 Maine, 402; Gooch v. Indigent Females Assn., 109 Mass. 558; Perry v. House of Refuge, 63 Md. 20; Harris v. Women’s Hospital, 27 Abbott’s New Cases, 37; Pepke v. Grace Hospital, 130 Mich. 493 (90 N. W. Repr. 278); Parks v. Northwestern University, 218 Ill. 381 (75 N. E. Repr. 991); Ward v. St. Vincent’s Hospital, 50 N. Y. Supp. 466; Powers v. Homeopathic Hospital, 47 C. C. A. 122; Joel v. Women’s Hospital, 35 N. Y. Supp. 37; Noble v. Hahnemann Hospital, 98 N. Y. Supp. 605; Collins v. Medical School, 59 N. Y. App. Div. 63; Williamson v. Industrial School of Reform, 95 Ky. 251 (24 S. W. Repr. 1065); Glavin v. Hospital, 12 R. I. 411.

      C. F. Eggleston, with him W. W. Weigley, for appellees.—
    If, for the sake of argument, it is admitted that the defendant is a charitable institution, nevertheless it is liable because of its contractual relation with the plaintiff: Powers v. Mass. Hospital, 109 Fed. Repr. 294; Union Pacific Ry. Co. v. Artist, 60 Fed. Repr. 365; Ward v. St. Vincent’s Hospital, 39 N. Y. App. Div. 624; Hewett v. Women’s Hospital Assn., 73 N. H. 556 (64 Atl. Repr. 190); Glavin v. Hospital, 12 R. I. 411.
    Moreover, the defendant has engaged in carrying on a business as a source of profit and in so doing it becomes liable for the acts of its servants, just as a municipality in entering a business for profit incurs the same responsibility as any other corporation doing similar work: Giovanni v. Phila., 59 Fed. Repr. 303; City v. Gilmartin, 71 Pa. 140; Bodge v. Phila., 167 Pa. 492; Oliver v. Worcester, 102 Mass. 489.
    Hence it is maintained that where a charitable institution conducts and operates a business or plant for*revenue it renders itself liable for negligence to the same extent as any private individual: Winnemore v. Phila., 18 Pa. Superior Ct. 625.
    A charity is to cure, not to kill; to help, not to injure; and a doctrine by which the defendant would be relieved from liability in this case would reverse the very meaning of charity: Stewart v. Harvard College, 94 Mass. 58; Davis v. Congregational Society, 129 Mass. 367.
   Opinion by

Mr. Justice Stewart,

February 21, 1910:

The plaintiff, Mollie Gable, a young woman nearing her .majority, with a view to having a surgical operation performed on her person by a surgeon of her own selection, was admitted as a pay patient into the hospital of the defendant corporation. While undergoing the operation one of the hospital nurses prepared the bed in the patient’s room for occupancy upon her return from the operating room, and in order to warm it so that the patient’s normal temperature of body might be maintained she placed in the bed bottles or jars containing hot water. Upon the patient’s return to this room after the operation had been performed, another nurse, who had. assisted in the patient’s return, removed the bottles from the bed so as to properly place the patient therein, and then restored them, placing two at either side of the body of the patient, who was wholly unconscious from the effect of the ether administered. While the plaintiff was thus unconscious and helpless in the bed, the hot water escaped from one of the bottles with the result that she was seriously scalded. To recover for her injuries thus sustained she brought the present-action against the defendant, charging it -with the negligence that had occasioned her hurt. She was permitted to recover in the court below, as was also her father, in his right, and these appeals follow. A fuller statement of the facts touching the •immediate occurrence of the accident than we have given above would be to no purpose, since our determination of the case will be found to rest upon circumstances entirely apart; We thus eliminate from the discussion all the questions suggested by the assignments of error, save the one we are about to consider.

The defendant is a corporation having for its essential objects, as set out in its charter, “The establishment of schools for the education of youth, and the erection of hospitals for the care of the sick.” It does not appear that it conducts any other hospital than that in which the plaintiff was a patient. This hospital is located in the city of Philadelphia. It was founded and erected out of funds bequeathed the corporation to that end, and it is maintained by charitable donations, appropriations made by the state, and pay received from such patients as demand and are accommodated with rooms separate from the general ward. Between 2,000 and 3,000 patients are yearly received in the hospital; and of these more than half are strictly charity patients who pay nothing to, the hospital,' while some who are reckoned in the paying class pay but a nominal sum. The annual report of the hospital for the year ending December 31, 1907, shows that the total amount received from pay patients during the year was $28,922, as against $43,478 received in various amounts as charitable donations, the aggregate of these two sums being required for the hospital maintenance. Two-thirds of the hospital space is used for the care of charity patients, and a dispensary is maintained, which is administered without charge and serves annually thousands of patients. Admission to the hospital is denied no one on grounds of religious faith or because of inability to pay. The corporation is under the management or control of a board of managers. It has no corporate stock; it can declare no dividends, and its entire income is employed to maintain and enlarge, as it is able, its capacity for gratuitous, beneficent service to the public. The fact that it receives pay for a certain class of patients detracts nothing from its character as a purely charitable institution: Daly’s Est., 208 Pa. 58; Phila. v. Penna. Hospital, 154 Pa. 9. We quote from the opinion in the case last cited: “While it wasconceded that the buildings and grounds are exempt from taxation for the reason that defendant is a purely public charity, yet it was contended that within the portion of the grounds charged with this claim there is a large building reserved exclusively for the use of patients paying a higher rate than any others; that these payments much exceed the cost of maintenance assignable to themselves, if the original cost of the property and any estimated rental is excluded. It appears to be. conceded that the object of the trustees in maintaining this department of the institution is to make a profit, by the use of which to extend the institution’s capacity for good among the destitute members of the community. It was not contended, nor is there anything to show, that there was any actual profit realized in this department after taking into consideration the value of the ground and improvements, and the cost of maintenance. The apparent profit is applied to the general objects of charity, and no portion of it enures to the benefit of any person concerned in administering the charity. The Pennsylvania Hospital is a purely public charity in the highest and best sense of the term, and under all our authorities we think it is exempt from the species of taxation attempted to be imposed in this case.” It is a doctrine too well established to be shaken, and as unequivocally declared in our own state as in any other, that a public charity cannot be made liable for the tort of its servants. The doctrine rests fundamentally on the fact that such liability, if allowed, would lead inevitably to a diversion of the trust funds from the trust’s purposes. In Boyd v. Insurance Patrol, 113 Pa. 269, the question was avoided because not properly raised on the facts; but when that case came a second time before this court in 120 Pa. 624, the question received an emphatic and unequivocal answer, and the rule as stated there is the settled law of Pennsylvania. The action was against the Fire Insurance Patrol, a corporation whose object was to protect and save life and property contiguous to burning buildings and was maintained by voluntary subscription, and was brought by one injured through the alleged negligence of an employee of the patrol. The contention on behalf of appellant was that the patrol was a public charity, and because of this fact it was exempt from the operation of the rule respondeat superior. That it was a public charity was judicially declared, and the case was accordingly reversed. Paxson, J., in the opinion filed uses this very expressive language: “The Insurance Patrol is a public charity; it has no property or funds which have not been contributed for the purposes of charity, and it would be against all law and all equity to take those trust funds, so contributed for a special, charitable purpose, to compensate injuries inflicted or occasioned by the negligence of the agents or servants of the patrol. It would be carrying the doctrine of respondeat superior to an unreasonable and dangerous length. That doctrine is at best — as I once before observed — a hard rule. I trust and believe it will never be extended to the sweeping away of public charities; to the misapplication of funds, specially contributed for a public charitable purpose, to objects not contemplated by the donors. I think it may be safely assumed that private trustees, having the control of money contributed for a specific charity, could not in case of a tort committed by one of their members, apply the funds in their hands to the payment of a judgment recovered therefor. A public charity, whether incorporated or not, is but a trustee, and is bound to apply its funds in furtherance of the charity and not otherwise.” In support of the view thus so vigorously expressed numerous English and American authorities are cited showing its general acceptance. For the purposes of this case these citations need not be here repeated, nor is it necessary to refer to other authorities which might readily be added; but the case of Downes v. Harper Hospital, 101 Mich. 555, so clearly resembles the present one in its facts, and the reason for the rule is so clearly brought out that a brief extract therefrom will not be-amiss. “A corporation organized and maintained for no private gain, but for the proper care and medical treatment of the sick, and to that end to manage a trust fund donated for that purpose, cannot be made liable for injuries sustained by a patient by reason of the negligent acts of its managers or employees. The fact that patients who are able to pay are required to do so does not deprive the corporation of its eleemosynary character, nor permit a recovery for damages on account of the existence of contract relations. If the contention of the learned counsel for the plaintiff be true, it follows that the charity or trust fund must be used to compensate injured parties for the negligence of the trustees, or architects and- builders, upon whose judgment reliance is placed as to plans and strength of materials; of physicians employed to treat patients; and of nurses and attendants. In this way the trust fund might be entirely destroyed, and diverted from the purpose for- which the donor gave it. Charitable bequests cannot be thus thwarted by negligence for which the donor is in no manner responsible. If, in the proper execution of the trust, a trustee or an employee commits an act of negligence, he may be held responsible for his negligent act; but the law jealously guards the charitable trust fund, and does not permit it to be frittered away by the negligent acts of those employed in its execution. The trustees of this fund could not by their own direct act divert it from the purpose for which it was given, or for which the act of the legislature authorized the title to be vested in the defendant. It certainly follows that the fund cannot be indirectly diverted by the tortious or negligent acts of the managers-of the fund, or their employees, though such acts result • in damage to an innocent beneficiary. Those voluntarily accepting the benefit of the charity accept it upon this condition:” The argument is advanced that because the defendant corporation receives into its hospital patients who are required to pay for the accommodations and services furnished, it is not. exclusively a public charity, and that therefore the rule we- have referred to does not apply. The argument is fully answered in the case last' cited, as well as in our own case. of Phila. v. Penna. Hospital, 154 Pa. 9. It is wholly immaterial that the plaintiff who here complains of injury was admitted as a pay patient. It is insisted, however,’that the reason for the rule does not obtain in this particular case, since the appellees have filed a paper in the court below disclaiming any right of execution against any fund of the defendant corporation held for charitable uses and all income of said corporation other than that received from pay patients; and have asked that the verdict be paid out of funds derived from pay patients only. The argument overlooks the fact that every dollar received by the defendant corporation, from whatever source, is stamped with the impress of charity. For what did these plaintiffs pay? For accommodations which the hospital was enabled to provide through the use of money charitably donated to it. The room, the bed, the furnishings and conveniences for which the plaintiff paid are all of them the direct and immediate product of the voluntary donations it received. It follows that the money that the hospital receives from its pay patients is as strictly the increment of the charitable donations it has received as would be the interest on the money given it if invested on loan. If any profit results from this source, it can only be regarded as incidental addition to the trust fund or income. For the reasons stated we sustain the twenty-fifth assignment of error, which complains of the refusal of the court to give binding instructions for the defendant.

The judgments in these cases are reversed, and judgment is now ordered to be entered in each case for the defendant.


source: Caselaw Access Project

author: Mr. Justice Moschzisker,

license: Public Domain

text:
    United States Wind Engine & Pump Company, Appellant, v. North Penn Iron Company.

      Foreign attachment — Bankruptcy—Discharge—Principal and surety— Special verdict. ■
    1. Where a foreign attachment is issued and served more than four months prior to. .the filing of a petition in involuntary bankruptcy against the defendant and the latter gives a bond with surety to dissolve the attachment, the subsequent discharge of the defendant in bankruptcy will not prevent'the entering of a special judgment in the attachment proceedings against the defendant for the sole purpose of fixing the liability of the surety on the bond given to dissolve’such attachment. In such a- case the discharge of the defendant .in bankruptcy does not exonerate the surety in the attachment proceedings. •
    2. Where, in such a case, the lower .court enters judgment for the defendant, the appellate court in reversing the judgment will direct that the record be remitted to the court below with directions to enter a special judgment against the defendant for the purpose of fixing the liability of the surety and with a perpetual stay of execution.
    Argued Jan. 11, 1910.
    Appeal, No. 276,
    Jan. T., 1909-, by plaintiff, from judgment of C. P: No. 1, Phila. Co., June T„ 1907, No. 103, for defendant on case stated in suit of United States Wind Engine & Pump Company v. North Penn Iron Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Case stated to determine the right of the plaintiff to a special verdict against the defendant in order to fix the liability of the surety on the bond given by the defendant to dissolve a foreign attachment.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in entering judgment for defendant.

      Ruby R. Vale, for appellant.
    — Appellant has the right to proceed to judgment for the purpose of fixing liability of the surety on the bond: Borden v. American Surety Co., 159 Pa. 465; Hill v. Harding, 130 U. S. 699 (9 Sup. Ct. Repr. 725).

      It is submitted that an examination of the several bankruptcy acts, both in England and in this country, and of the decisions construing the said acts, will disclose that, in express terms, a surety is not relieved from liability, and that, notwithstanding the discharge of the principal debtor, the courts have uniformly permitted the taking of a qualified judgment against the principal debtor for the purpose of perfecting the creditor’s rights and of fixing the liability of the surety: Bond v. Gardiner, 4 Binney, 269; Ingraham v. Phillips, 1 Day (Conn.), 117; Bates v. Tappan, 99 Mass. 376; Carpenter v. Turrell, 100 Mass. 450; Hill v. Harding, 130 U. S. 699 (9 Sup. Ct. Repr. 725); Bosworth v. Pomeroy, 112 Mass. 293; Stockwell v. Silloway, 113 Mass. 332; Johnson v. Collins, 116 Mass. 392; Holyoke v. Adams, 1 Hun, 223; Farnham v. Gilman, 24 Me. 250; Goodhue v. King, 55 Cal. 377; King v. Block Amusement Co., 126 App. Div. (N. Y.) 48; s. c., 20 Am. B. R. 784; Rosenthal v. Nove, 175 Mass. 559 (56 N. E. Repr. 884).
    Upon dissolution of the attachment by entering security, it may safely be said that the action becomes one in personam: Albany City Ins. Co. v. Whitney, 70 Pa. 248.
    The court has power to enter special or conditional judgment: Minsker v. Morrison, 2 Yeates, 344; Church v. Ruland, 64 Pa. 432; Bond v. Gardiner, 4 Binney, 269; Tinstman v. Flenniken, 6 W. N. C. 29; Pidcock v. Bye, 3 Rawle, 183; Martzell v. Stauffer, 3 P. & W. 398; Wells v. Van Dyke, 109 Pa. 330; Cope v. Kidney, 115 Pa. 228; Western Penna. Hospital v. Library Hall Co., 189 Pa. 269; Com. v. R. R. Co., 122 Pa. 306; Irwin v. Shoemaker, 8 W. & S. 75; Aycinena v. Peries, 6 W. & S. 243; Jackson v. Knight, 4 W. & S. 412; Harmar v. Holton, 25 Pa. 245; Hoeveler v. Mugele, 66 Pa. 348) Roddy’s App., 72 Pa. 98; Porter v. Vanderlin, 158 Pa. 146; Phelps’s App., 98 Pa. 546.

      Alex. Simpson, Jr., with him Clifton Maloney, for appellee.
    — It has been expressly ruled that in actions commenced by capias ad respondendum, the discharge of the defendant in bankruptcy relieves his surety from all liability, and that an exoneretur should be entered on the bond: Com. v. Huber & Co., 3 Clark, *331; Bryant v. Kinyon, 127 Mich. 152 (86 N. W. Repr. 531); Barber v. Rodgers, 71 Pa. 362; Hubert v. Horter, 81 Pa. 39; Nesbit v. Greaves, 6 W. & S. 120.
    ■ -If; then, due effect is given to sec. 62 of the act of 1836,^and only by virtue of that act could plaintiff issue its attachment,— those cases require this judgment to be ¡affirmed, for if' this action had been commenced by a capias ad respondendum, — • ■to which this action by the express language of the statute is assimilated, — the discharge in bankruptcy would prevent any judgment, either general or special. .• ■
   Opinion by

Mr. Justice Moschzisker,

February 21, 1910:

The action in this case was originally begun by writ of foreign attachment issued and served on April 9, 1907. On April 12, 1907, the defendant gave a bond with surety to dissolve the attachment. On October 8, 1907, a petition in involuntary bankruptcy was filed against the defendant. On October 30,1907, the defendant was adj udged a bankrupt. On ■November 11, 1908, the defendant was “discharged from all debts and claims .... against its estate.” By agreement of counsel a case stated was filed embodying all of the essential facts; but the only ones important for our present consideration are as above set forth. It was agreed in the case stated that if the court should be of opinion that the plaintiff was entitled to a judgment against the defendant, it should be entered for $5,171.71; such judgment to be “either general, special or conditional, as in the opinion of the court the circumstances of this case may require, and with such control over the execution of the said judgment, as if entered on a verdict 6f a jury, as shall be deemed proper by the court for the purpose of charging the surety with liability upon the bond filed to dissolve the attachment.” The question involved was: Will the discharge in bankruptcy of a defendant in a writ of foreign attachment, issued and served more than four months prior to the filing of the petition in bankruptcy, prevent the entering of a special judgment against such defendant for the sole purpose of fixing the liability of the surety on a bond given to dissolve such attachment? The common pleas decided this question in the affirmative, and entered judgment for the defendant, stating: “Section 62 of the Act of 1836 provides that if the foreign attachment is dissolved by entering bail, the action shall proceed in due course as if the same had been commenced by writ of capias ad respondendum. It then becomes a personal action. We think it has been ruled in this State that in actions commenced by capias ad respondendum a discharge of the defendant in bankruptcy exonerates or discharges the bond. See Com. v. Huber & Co., 3 Clark, 331; Nesbit v. Greaves, 6 W. & S. 120; Barber v. Rodgers, 71 Pa. 362; Hubert v. Horter, 81 Pa. 39.”

The learned court below misconceived the real import of the cases relied upon, and'thereby fell into error. Two distinctly different bonds available to defendants in actions commenced by capias ad respondendum are provided for in the acts of assembly. The first by the Act of June 13, 1836, P. L. 572, sec. 3, may be given at any time before final judgment, and the obligation is, “if the defendant shall be condemned in the action he will satisfy the condemnation money and costs or surrender himself to the sheriff, or in default thereof that his bail will do so for him.” This was the kind of bail which was formerly entered in order to dissolve a foreign attachment. But after the Act of July 12, 1842, P. L. 339, abolishing imprisonment for debt, the form of bond required for that purpose was changed to bail absolute “conditioned for the payment of the debt or damages, interest and costs that may be recovered:” Act of March 20, 1845, P. L. 188, sec. 2. The other bond is provided by the Act of June 16, 1836, P. L. 729, sec. 6, for the benefit of defendants who desire to take advantage of the insolvent laws, and the obligation is “That the said debtor shall appear at the next term of the Court of Common Pleas and then and there present his petition for the benefit of the insolvent laws of this Commonwealth .... and if he shall fail in obtaining his discharge as an insolvent debtor, that he shall surrender himself to the jail of the said County.” The cases cited by the learned court below apply to bonds such as the one last mentioned, and they do not apply to the form of bond required to dissolve an attachment. A study of these cases will show that they do not turn on any general principle making them applicable to all bonds given in actions commenced by capias ad respondendum; but they are decided on the theory that the obligation in an insolvent bond is practically complied with when the debtor secures a discharge under the national bankrupt act; which is not in .any sense the case with regard to the obligation in the bond to dissolve an attachment. This is made plain when we consider that notwithstanding the discharge of the appellee, if no bond had been substituted, the attachment in the present case would have been valid, and under subsec. F of sec. 67 of the bankrupt act of 1898 its lien would have been preserved against the goods levied upon: Metcalf v. Barker, 187 U. S. 155.

That a discharge does not meet the obligation in such, a bond, and that there is nothing in the national bankrupt act to stand in the way of the relief desired by the appellant is clearly shown by the case of Hill v. Harding, 130 U. S. 699, where Mr. Justice Gray says: “Such attachments being recognized as valid by the bankrupt act a discharge in bankruptcy does not prevent the attaching creditors from taking judgment against the debtor in such limited form as may enable them to reap the benefit of their attachment. When the attachment remains in force, the creditors, notwithstanding the discharge, may have judgment against the bankrupt, to be levied only upon the property attached-. . . . When the attachment has been dissolved, in accordance with the statutes of the State, by the defendant’s entering into-a bond or recognizance, with sureties, conditioned to pay to the plaintiffs, within a certain number of days after any judgment rendered against him on a final trial, the amount of that judgment .... the bond or recognizance takes the place of the attachment as a security for the debt of the attaching creditors: they cannot dispute the election, given to the debtor by statute, of substituting the new security for the old one; and the giving of the bond or recognizance, by dissolving the attachment, increases the estate to be distributed in bankruptcy. The judgment is not against the person or property of the bankrupt, and has no other effect than to enable the plaintiff to charge the sureties, in accordance with the express terms of their contract, and with the spirit of that provision of the bankrupt act which declares that no discharge shall release, discharge or affect any person liable for the same debt for or with the bankrupt, either as partner, joint contractor, indorser, surety or otherwise.” It is to be noted that the clause in the present bankrupt act of 1898, subsec. A of sec. 16, is much broader than the one referred to in the opinion just quoted; it reads: “The liability of a person who is a co-debtor with or guarantor, or in any manner surety for a bankrupt shall not be altered by the discharge of such bankrupt.”

The case resolves itself into the question, Is there anything in the law or practice of Pennsylvania to prevent, or discountenance, a special judgment against one discharged in bankruptcy? When the equities of a case call for it, our courts have from the earliest times permitted the entry of special judgments, with proper control over the execution. Bond v. Gardiner, 4 Binney, 269, decided in 1811, is an instance of this kind which has points of striking similarity with the case at bar. There C covenanted with A that if A should recover in an amicable action about to be brought by A against B, B should pay the amount to A on demand. B was discharged as a bankrupt. A applied to the court for leave to enter the amicable action, which was granted against the consent of B, who nevertheless appeared and pleaded his discharge. The court struck off the plea upon A's expressly declaring that the proceedings were for the sole purpose of fixing the liability of C, and agreeing not to take out execution against B. Judgment under the terms stated was allowed against B. This was practically the same thing as granting a special judgment with a perpetual stay of execution. But the appellee contends that the present policy of the state is against such a practice, and points to sec. 16 of the insolvent Act of June 4, 1901, P. L. 404, which provides: “The court shall vacate and set aside all attachments, executions, sequestrations, or other legal proceedings not legally completed, and all money in Court or in the. hands of the sheriff, by virtue thereof, shall be paid to such assignee or receiver.” At the most this is merely a declaration that all moneys in court or in the hands of the sheriff shall be paid into the general estate; and, presumably, this is exactly what becomes of the money or property attached when a bond is given and an attachment dissolved.

The appellee has secured its discharge in bankruptcy, and its personal liability is gone; but that does not constitute any reason why a judgment against it should not be entered for the special purppse of fixing and enforcing the liability of the surety. ■ The suretytook the risk of the appellee’s insolvency; a risk that the appellant was supposedly protected against by the very bond in question; so it would be most unfair to allow the substitution of the bond for the goods attached, and then to deny the formal relief necessary in order to enforce its terms against the surety. There is nothing in our law, or practice, or in the announced public policy of the state, to require such a ruling.

The judgment is reversed, and the record is remitted to the court below with directions to enter a special judgment against the defendant for 'the purpose of fixing the liability of the surety and with a perpetual stay of execution.


author: Mr. Justice Stewart,

text:
    Blumenthal’s Estate.

      Partnership — Elements of — Participation in profits — Orphans’ court.

    1. Where a contract provides for participation in profits, as profits, not for a salary to be measured by the amount of profits realized, partnership exists as between the parties themselves. Participation in profits may or may not constitute partnership as to third persons, depending entirely upon the facts of the particular case; but whenever the contract provides for a direct mutual participation, the parties to the contract have common ownership in what profits there are, and with respect to these they are partners as between themselves however they may stand with respect to third parties.
    2. The orphans’ court has no jurisdiction to take cognizance of partnership transactions and state an account between partners; nor can it acquire such jurisdiction through an agreement of the parties.

      Argued Jan. 12, 1910.
    Appeal, No. 358,
    Jan. T., 1909, by Mack Latz, from decree of O. C. Phila. Co., April T., 1909, No. 102, dismissing exceptions to adjudication in Estate of Solomon Blumenthal, deceased.
    Before Fell, C. J., Brown, Mestriozat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Exceptions to adjudication.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in dismissing exceptions to adjudication.

      Waiter J. Rosenstein, of the New York Bar, with him William Gorman, for appellant.
    — Appellant’s agreement, properly interpreted, is a joint adventure for a division of profits between the parties after all salaries and expenses are paid: Galbreath v. Moore, 2 Watts, 86; Wright v. Cumpsty, 41 Pa. 102; Cleveland v. Fararr, 4 Brewster, 27; Finley v. Stewart, 56 Pa. 183.
    Where in a joint adventure one appropriates the proceeds to his own use he becomes a debtor to his associate and an action at law or in equity for an account will lie: Wann v. Kelly, 5 Fed. Repr. 584; Sheldon v. Wood, 15 N. Y. Super. Ct. 267; Jackson v. Hooper, 74 Atl. Repr. 130; Warwick v. Stockton, 55 N. J. Eq. 61.
    Appellant was entitled to an accounting here, irrespective of the account furnished, the correctness of which was questioned as soon as furnished. See Marston v. Gould, 69 N. Y. 220; Hurley v. Walton, 63 Ill. 260; Edson v. Gates, 44 Mich. 253 (6 N. W. Repr. 645).

      James Collins Jones, with him Felix H. Levy, for appellees.
   Opinion by

Mr. Justice Stewart,

February 21, 1910:

The decedent, whose estate is here involved, had been a partner in a business firm engaged in the manufacture and sale of clothing. The appellant was employed by this firm as a traveling salesman. His contract was for a year, and it provided that he was to receive a fixed salary, payable in monthly installments, and in addition “one:third of the net profits of the year’s business, after first deducting all expenses incurred in the firm’s business and all losses by depression of stock, ■ bad and failed accounts, or otherwise, and all interest on the capital invested by the said Blumenthal Bros. & Co., at six per cent per annum.” It was further stipulated in the contract that the net profits in the year’s business should be ascertained “by the net results of the profit and loss account of Blumenthal Bros. & Co.” Appellant admits that the fixed salary was paid him in full, but he makes demand for a one-third of what he claims were the net profits of the year’s business. Upon the expiration of his term of service the firm furnished him with a copy of the profit and loss account as made out by the firm and entered on its books, showing an entire net profit of $3,241.88. Appellant denies the correctness of this account. He claims that the stock of merchandise belonging to the firm had greatly appreciated in value during the year because of an advance in the market; that he was entitled to share in this appreciation as an element of profit under his contract, but that it is not included in the firm’s profit and loss account. He further claims that certain items of ■ expense were improperly deducted in making up the account. He estimates his share of the profits at $14,029.44, and makes claim for this sum with interest. The auditing judge in disallowing the claim assigned two reasons: first, because under the terms of the contract appellant was entitled to share only in the profits actually realized on goods sold; and second, because the contract provided a method by which the profits were to be ascertained, namely, the profit and loss account of the firm; and no fraud being alleged in connection with the account as made out by the firm, the amount thus ascertained was conclusive upon the parties. To these he might have added a third, which to our minds is controlling without regard to those advanced. The claim was introduced in a proceeding in the orphans’ court distributing the balance in the hands of the executors belonging to the estate of one of the deceased partners. If the appellant stood in the position of a creditor of the firm of which the decedent had been a partner, there would be no reason why the orphans’ court could not in this proceeding adjudicate his claim; but his counsel repudiate this relation, and insist that he was a partner with respect to the net profits. In this we think they are entirely correct as a matter of law. Where the contract provides for participation in profits, as profits, not for a salary to be measured by the amount of profits realized, partnership exists as between the parties themselves. Participation in profits may or may not constitute partnership as to third persons, depending entirely upon the facts of the particular case; but whenever the contract provides for a direct mutual participation, the parties to the contract have common ownership in what profits there are, and with respect to these they are partners as between themselves however they may stand with respect to third parties. The profits are by agreement turned into the common stock. Partnership, says Story, is a relation created by “ a contract between two or more persons to place their money, effects, labor or skill, or some or all of them, in lawful commerce and divide the profits between them.” Parsons defines it as “a combination by two or more persons of capital, or labor or skill, for the purpose of business for their common benefit.” Pollock, as “a relation which subsists between persons who have agreed to share the profits of a business carried on by all or any of them on behalf of all of them.” Lindley in his work on Partnership, sec. 7, says: “ The basis of a partnership is an agreement to share the profits arising from some business or undertaking. . . . Nothing, perhaps, can be said to be absolutely essential to the existence of a partnership except a community of interest in profits resulting from an agreement to share them.” The contract in the present case meets every requirement of these definitions. It results that except as appellant can show a settlement between the partners on an account stated of the profits, and a definite agreement as to what he was entitled to receive, he cannot be regarded as a creditor of the firm, and his claim cannot be adjudicated in the orphans’ court. The remedy in such case as his must be an action in account render, or a bill in equity for an account, We gather from appellant’s history of the case that the latter remedy was tried during the lifetime of the Blumenthals (both of whom are now dead), but for some undisclosed reason, after a full examination of the firm’s books by the plaintiff’s expert accountant, the suit was discontinued. Just what appellant proposed to accomplish through that well-chosen action, a settlement of the partnership accounts, he proposed to do in this proceeding in a tribunal without jurisdiction in such cases. This appears from the agreement filed in the case wherein it was stipulated, that if the auditing judge should be of opinion that claimant was entitled to any other amount than that which appears on the profit and loss account of the books of the firm, then a special master should be appointed to take the testimony and report and settle an account between the parties. The orphans’ court has no jurisdiction to take cognizance of partnership transactions, and state an account between partners; nor can it acquire such jurisdiction through an agreement of the parties. No authorities need be cited for so plain a proposition. Had appellant submitted the partnership account of profit and loss, and claimed thereunder the amount there admitted to be due him, his claim would have been adjudicated; but he distinctly repudiated it, and asserted his claim for an accounting. As we gather from the record, his share of the profits as determined by the profit and loss account was almost entirely diverted by an attachment proceeding directed against the firm as garnishee, in which it was compelled to pay nearly the full amount to another. In abandoning his claim under that account, appellant risked but little; but that little he has -lost as a liability of this estate. For the reasons we have stated, the appeal is dismissed at the costs of the appellant.


author: Mr. Justice Mestrezat,

text:
    Monier v. Philadelphia Rapid Transit Company, Appellant.

      Street railways — Passenger—Ejection of passenger.

    1. On the trial of an action by a passenger against a street railway company for an alleged wrongful and violent ejectment from a street car, it is reversible error for the court to charge as follows: “If you believe a man was so cruel, so lowbred, brutal and criminal as to do that — that, if justice had been vindicated upon those facts at the time, he would not have been now half through the service of a sentence in the penitentiary or the county jail at the date of this trial — if, as I may say, you believed that and found a verdict accordingly, there would be no limitation to your damages as against the defendant under such circumstances. Resentment would inflict any vindication, but, unfortunately, in a way, the limitations of liability are confined here, in the court’s judgment, to that which is done by one of the employees of the defendant, within the scope, as the law puts it, of his authority, within the purpose for which he w'as hired by the company, and the company cannot be held responsible for the passions of men or for the malicious actions of unreliable characters.”
    2. The trial judge may express his views on the evidence in a proper and dispassionate manner so long as he leaves the jury entirely free to consider the evidence and determine the facts. He may not, however, by the use of violent and impassioned language discuss the parties, the witnesses, or the evidence in such manner as to prevent a calm and impartial consideration of the case by the jury. A litigant has a right to a trial by a fair and impartial jury whose consideration of his cause is not influenced by any language of the court which would create resentment or prejudice against him.
    3. In a case against a street railway company to recover for personal injuries it is improper for the court to refer in its charge to the general character and nationality of the plaintiff, where no question is raised by the pleadings as to character and nationality.
    Argued Jan. 12, 1910.
    Appeal, No. 317,
    Jan. T., 1909, by defendant, from judgment of C. P. No. 1, Phila. Co., June T., 1907, No. 5,113, on verdict for plaintiff in case of Emil Monier v. Philadelphia Rapid Transit Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.

      Trespass to recover damages for personal injuries and for wrongful ejectment from car.
    At the trial it appeared that the plaintiff was a passenger on one of defendant’s cars on January 23, 1907. He got into an altercation with>the conductor and the latter pushed him off in a manner that indicated violence.
    The court charged in part as follows:
    [If you believe a man was so cruel, so lowbred, brutal and criminal as to do that — that, if justice had been vindicated upon those facts at the time, he would not have been now half through the service of a sentence in the penitentiary or the county jail at the date of this trial — if, as I say, you believed that and found a verdict accordingly, there would be no limitation to your damages as against the- defendant under such circumstances. Resentment would inflict any vindication; but, unfortunately, in a way, the limitations of liability are confined here, in the court’s judgment, to that which is done by one of the employees of the defendant, within the scope, as the law puts it, of his authority, within the purpose for which he was hired by-the company, and the company cannot be held responsible for the passions of men or for the malicious actions of unreliable characters.] [2]
    [You must first determine whether or not he was the character of man as has been described by the motorman and conductor and the colored boy, and whether or not he was so acting; or whether or not he was one of a family party of these decent, humble French people you have seen upon the stand, who went out into the woods to spend a summer’s day, and that plaintiff might have partaken of the national wine to the extent of a pint of claret with his lunch, according to their custom, which he and the boy shared with each other;" and also whether a pint of claret wine would affect a Frenchman with intoxication.] [3]
    ■ [It is a serious case; serious to the plaintiff, exceedingly serious, and serious, as well, to the defendant.] [4]
    Verdict and judgment for plaintiff for $1,850. Defendant appealed.

      Errors assigned were (1) that the charge was inadequate; (2-4) above instructions, quoting them.

      Thomas Learning) with him Sydney Young, for appellant.—
    The charge was inadequate and its language was prejudicial to defendant: Linn v. Com., 96 Pa. 285; McFadden v. Reynolds, 11 Atl. Repr. 638; Curtin v. Somerset, 140 Pa. 70; Hocker v. Jamison, 2 W. & S. 438; Hayes v. R. R. Co., 195 Pa. 184; Lingle v. Ry. Co., 214 Pa. 500.

      John M. Vander slice, with him Clarence Vander slice, for appellee.
    — Considering the whole charge, appellant has no cause of complaint. ' Whether or not the conductor acted within the scope of his authority was left for the jury to determine under fair and impartial directions: Leibig v. Steiner, 94 Pa. 466; Jackson v. Times, 152 Pa. 406; Reynolds v. Braithwaite, 131 Pa. 416.
   Opinion by

Mr. Justice Mestrezat,

February 21, 1910:

We are compelled to sustain the second and third assignments of error and reverse this judgment. The language of the charge complained of in these assignments would manifestly prejudice the jury against the defendant company. We have condemned language of similar import used by counsel in arguing a case to the jury, and with greater reason it should not be employed by the court in submitting the case to the jury. The trial judge may express his views on the evidence in a proper and dispassionate manner so long as he leaves the jury entirely free to consider the evidence and determine the facts. He may not, however, by the use of violent and impassioned language discuss the parties, the witnesses, or the evidence in such manner as to prevent a calm and impartial consideration of the case by the jury. A litigant has a right to a trial by a fair and impartial jury whose consideration of his cause is not influenced by any language of the court which would create resentment or prejudice against him.

With this standard as our guide, it will be seen that the appellant has just cause to complain of the language used in submitting this case to the jury. The action was trespass by the plaintiff, a passenger on one of defendant’s cars, to recover damages resulting from “the rude and unwarranted action of the conductor” in pushing the plaintiff from the car. With the merits of the case we have no concern on this appeal. The testimony of the plaintiff tended to place the conductor in an unenviable light and to show that his treatment of the plaintiff was wholly indefensible. The defendant’s evidence justified the conductor’s behavior on the occasion. In view of the issue and the evidence adduced to sustain it, it was therefore important, in order to secure a fair and unbiased consideration by the jury, that the court, in its- charge, should review the case in a calm and dispassionate manner. The language used in the charge cannot be so characterized. The epithets applied by the court' to the defendant’s conductor painted him as a degenerate for whose punishment the law scarcely made adequate provision. Conceding the conductor’s treatment of the plaintiff to be inexcusable and properly censurable, the jury, to enable it to dispassionately consider the evidence, did not need to be told that a man guilty of such conduct was cruel, lowbred, brutal and criminal, and “that if justice had been vindicated upon those facts at the time, he would not have been now half through the service of a sentence in the penitentiary or the county jail at the date of this trial.” Nor did it assist the jury in fixing the amount of damages, the court having told them that compensation and not punishment was the measure, for the learned judge to charge that if there was a verdict for the plaintiff, “there would be no limitation to your damages as against the defendant under such circumstances.” Neither can it be asserted with absolute confidence that sympathy for the plaintiff and resentment against the defendant company were entirely driven from the minds of the jurors by being told by the learned judge that the company was not responsible “for the malicious actions of unreliable characters.” All the language quoted above is to be found in one paragraph of the printed charge, and there is nothing in the context or other parts of the charge which relieves it from the- manifest effect to blacken the character of the conductor and prejudice the jury against the defendant company. The attempt of the learned judge, after counsel had excepted to his intemperate language, to “eliminate all consideration of that from your deliberations” would not be effective in excluding it from the minds of the jurors. It had gained a lodgement there, and could not be eradicated by a simple suggestion after the charge.

The language embraced in the third assignment is also objectionable and was not pertinent to the issue raised by the pleadings. The plaintiff’s right to recover did not depend on his general character or his nationality, but on his ability to sustain by competent evidence the averments of his statement which raises no issue as to either his character or his nationality. This part of the charge directed the jury to consider and determine questions not in the case, and tended to arouse sympathy on behalf of the plaintiff.

The judgment is reversed with a new venire.


text:
    Buckman v. Philadelphia & Reading Railway Company, Appellant.

      Negligence — Railroads—Damages—Death—Evidence as to profits— Leading questions —Life expectancy.

    1. In an action by a woman against a railroad company to recover damages for death of plaintiff’s husband, the plaintiff is a competent witness to testify as to the amount of profits which the deceased made in his business; but if she testifies that she has no definite knowledge as to the amount of business transacted by her husband, or the profits he realized from it, and makes no attempt to give any figures until figures are suggested to her in leading questions, which she immediately adopts in her testimony, such evidence is improper and a verdict and judgment based upon it will be reversed by the appellate court.
    2. On the trial of an action to recover damages for death caused by the negligent act of another, the plaintiff should show the life expectancy of the deceased.
    Argued Jan. 12, 1910.
    Appeal, No. 152,
    Jan. T., 1909, by defendant, from judgment of O. P. No. 3, Phila. Co., March T., 1904, No. 3,362, on verdict for plaintiff in case of Ella P. Buck-man v. Philadelphia & Reading Railway Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for death of plaintiff’s husband. Before Moschzisker; J.
    At the trial the jury returned a verdict of $15,450, upon which judgment was entered for $15,000, all above that sum having been remitted. Defendant appealed.

      Error assigned was the admission of the plaintiff’s testimony quoted in the opinion of the Supreme Court.

      Wm. Clarke Mason, for appellant.
    — The evidence of the earning capacity of the decedent was speculative: McHugh v. Schlosser, 159 Pa. 480; Wallace v. R. R. Co., 195 Pa. 127; McKenna v. Gas Co., 198 Pa. 31; Burns v. R. R. Co., 219 Pa. 225.
    The record shows no evidence of the personal expenditures of the decedent upon which the jury could fix the amount to be deducted from his net earnings to ascertain the balance representing the value of his life to the widow and children: R. R. Co. v. Butler, 57 Pa. 335; R. R. Co. v. Dale, 76 Pa. 47; Iron Co. v. Rupp, 100 Pa. 95; McHugh v. Schlosser, 159 Pa. 480; McCracken v. Traction Co., 201 Pa. 384; Goodhart v. R. R. Co., 177 Pa. 1; Wallace v. Penna. Co., 219 Pa. 327.

      A. S. L. Shields, for appellee.
    — There was ample evidence of decedent’s earning capacity and of the pecuniary value of his life to his family: Penna. R. R. Co. v. Butler, 57 Pa. 335; Mansfield Coal Co. v. McEnery, 91 Pa. 185; Simpson v. R. R. Co., 210 Pa. 101; Wilson v.Wernwag, 217 Pa. 82; Hendler v. Quigley, 38 Pa. Superior Ct. 39; R. R. Co. v. Coyle, 55 Pa. 396; R. R. Co. v. Dale, 76 Pa. 47; Wallace v. Penna. R. R. Co., 195 Pa. 127.
    Sufficient evidence was adduced of decedent’s habits of expenditures: Carpenter v. Lancaster, 212 Pa. 581.
   Opinion by

Mr. Justice Mestrezat,

February 21, 1910:

We think the manner of examining the plaintiff, while on the witness stand, as to the amount of profits which her husband made in his truck business was objectionable and should not have been allowed. Tt was objected to by the defendant and is assigned for error. The action was brought by the plaintiff to recover damages for the death of her husband who she alleges was killed by the negligence of the defendant company at a grade crossing in Montgomery county. The plaintiff was the first witness called in support of her claim, and after stating that her husband had been engaged in the farming and truck business she was interrogated as to the amount of business he did and the profits he realized. She said he kept no books of account and that she could testify only from memory. After being questioned as to the net profits, the following examination in chief occurred: “Q. If you were asked the question— don’t answer this question in figures — how much money was taken in from sales of the products of the farm during the last six months before your husband died, could you answer that question? A. No; I could not, exactly. Q. Could you answer how much was taken in in the month before? A. No. Q. Could you answer how much was taken in the year before? A. No, sir; I could not.”

It is apparent from this examination that the witness, at that time, had no definite knowledge as to the amount of business transacted by her husband or the profits he realized from it. If the examination had stopped here, there would not have been sufficient evidence to go to the jury on the question of the deceased’s earning capacity. This position was appreciated, and the examination was continued as follows: “Q. I don’t mean exactly in dollars and cents; but can you state a figure and say that at least that much was taken in? A. For the whole year, you mean? Q. For six months, we will say. Could you say at least a certain sum was taken in, naming that sum? A. For six months? Q. Yes, or any given period. Say a year or say six months. Could you say at least $1,000, or $2,000, or $3,000, or $500, or whatever it may be; a figure that you are sure it came to at least that amount? A. It ought to be about $1,000 every six months, anyhow. Q. You are sure it would be at least that much that would be taken in? A. Yes; I am sure. Q. That is for the six months prior to your husband’s death? A. Yes, sir. Q. Would that represent the average of every six months right along, or would that just be that six months? A. Right along then — that was a good year. Q. That would represent, year by year, every six months $1,000? A. Yes, sir. Q. Two thousand dollars a year? A. Yes, sir. Q. Have you any way of telling how much of that had to go back to pay expenses? A. The biggest half of it. Q. Then, would you say sixty per cent went for expenses? A. Yes, sir. Q. Would you say any more than sixty per cent? A. No, sir. Q. Would you say sixty per cent represented expenses? A. Yes, sir. Q. Then you would say the profits of the business were about $800 a year? A. After the expenses came out.” There was more testimony on the subject of a like character, and the part quoted is fairly illustrative of the whole.

This is the material part of the testimony on which the plaintiff relied to. show the earning capacity of the decedent. It is apparent that the figures are not those of the witness, but those suggested to her by the questions. The witness, as will be observed, testified that she could not say “how much money was taken in from the sales of the products of the farm” during the six months before her husband’s death, or during the month or year before. Nor did she in her subsequent testimony fix any sum until the question suggested various amounts and she adopted one of the sums named by answering: “It ought to be about $1,000 every six months, anyhow.” Possibly the witness was unable to give the figures because she had not given the matter sufficient consideration before she was called to testify. We are compelled, however, to take the testimony as we find it, and from it we see.that the amounts named were not those fixed by her, but those given to her during the examination. This is not permissible, and should not be allowed in the examination of a witness. A more flagrant violation of the rule prohibiting leading questions is seldom brought to the attention of a court. Such answers are not those of the witness but of the one who examined him, and hence should not go to the jury. It is not simply refreshing the memory of a witness, but it is furnishing him the data which should be within his own knowledge.

There is no legal objection to the plaintiff showing the amount of farming and trucking which her husband did and the profits realized therefrom as tending to show his earning capacity. She, being his wife and having assisted him in the business, was a competent witness and probably would know more about the profits of the business in which he was engaged than any other witness who could be called. It was proper she should be interrogated as to the amount of business he did as well as to its value, requiring her, however, to give her own opinion and not that of another. The specifications do not, as suggested in appellant’s argument, raise the question as to the proper measure of damages, but the learned trial judge, in the charge, correctly instructed the jury on the subject.

There was no evidence introduced on the trial to show the life expectancy of the deceased, and the learned court below, on the motion for a new trial, was compelled to go outside the record for “information” to justify the amount of the verdict. The plaintiff should not neglect to furnish this important evidence on the next trial.

For the reasons stated, the judgment is reversed and a venire.de novo is awarded.


author: Per Curiam,

text:
    Marfilues v. Philadelphia & Reading Railway Company, Appellant.

      Negligente — Crossing—Diagonal crossing — “Stop, look and listen”— Contributory negligence, — Province, of court and jury.

    1. Where, at a diagonal crossing of a highway over a railroad, open spaces two or two and one-half inches wide and five inches deep exist between the sides of the planks and the sides of the rails, so that when a wagon is crossing there would be danger of the wheel of the wagon sliding along the edge of the rail and turning in the direction of the line of the open spaces, the question whether an accident resulting from this cause is one to be apprehended and guarded against by the railroad company, whose duty it is to maintain the crossing in a reasonably safe condition, is a question for the jury and not for the court.
    2. In such a case where a driver after having properly stopped, looked and listened, goes upon the crossing, and after he finds that his wheels are fast, looks for a train in the direction from which one might approach, and seeing none, gives his attention to moving his wagon, and then is struck by a train running over sixty miles an hour, the question of his contributory negligence is for the jury.. In such emergency he is entitled to a reasonable opportunity to think and act.
    Argued Jan. 12, 1910.
    Appeal, No. 215,
    Jan. T., 1909, by defendant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1906, No. 5,000, on verdict for plaintiff in case of Augustus Marfilues v. Philadelphia & Reading Railway Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Kinsey, J.
    The circumstances of the accident are set forth in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $10,650. Defendant appealed.

      Error assigned was in refusing to enter judgment for defendant non obstante veredicto.

      Wm. Clarke Mason, for appellant.

      Ruby R. Vale, for appellee.
   Per Curiam,

February 21, 1910:

At a place where a public highway crossed the defendant’s road diagonally and at grade, planks had been laid between the rails of the tracks to facilitate the passage of vehicles over the roadbed. These planks were parallel to the rails but not close to them; open spaces two or two and a half inches wide and five inches deep had been left between the sides of the planks and the sides of the rails. For what purpose these openings had been left or whether they were a part of the original construction did not appear. It was, however, shown by the cross-examination of a witness for the plaintiff that some time after the accident the open spaces had been filled up by placing planks against the web of the rails, and from this it would appear that they were not essential in operating the road. The plaintiff was riding in a covered business wagon, and, before driving on the crossing, he twice stopped, looked and listened for a train, once 300 feet from the tracks where he had an extended view, and a second time when fifteen feet from them. One of the front wheels of his wagon was caught in the space between the planking and the second rail of the first track and, as he turned his horse to one side in an effort to free the wheel, a hind wheel slipped into the opening. When he found that his wagon was fast, he looked along the tracks in the direction in which the train came and saw no train, although he had a clear view for two miles. As he was in the act of jumping from the wagon, its rear end was struck by a train running sixty or more miles an hour, of the approach of which no warning was given. It was shown that after the accident to the plaintiff the wheel of another wagon was caught in the opening in the same way.

The defendant offered no evidence, and the question raised by this appeal is whether under the plaintiff’s testimony a case for the jury was made out. If the crossing had been at right angles with the track, a wagon wheel would have come squarely against the rail and the danger of its slipping into the opening would have been slight. But at a diagonal crossing a wheel would strike the rail at an angle that would have a tendency to cause it to slide along the edge of the rail and to turn in the direction of the line of the open space. Whether the danger of an accident resulting from this cause was one to be apprehended and guarded against by the defendant, whose duty it was to maintain the crossing in a reasonably safe condition, was a question not for the court but for the jury.

The question of contributory negligence was also for the jury. The plaintiff did all the law required before driving on the crossing. When he found that his wheels were fast, he looked for a train in the direction from which trains would approach- on the track on which he was, and saw none. His attention was then given to moving his wagon. The problem was what to do and how to do it and, if in the emergency suddenly arising he failed to do what after mature deliberation would seem to be the wisest thing, he is not to be charged with negligence. He was entitled to a reasonable opportunity to think and act: Phillips v. Ry. Co., 190 Pa. 222.-

The judgment is affirmed.


text:
    Michener’s Estate.

      Wills — Construction—Gift of income — Trusts and trustees.

    Where a testator directs his executors and trustees to average the income of his estate and to pay over to his sister the income of $10,000 for life, and to two nieces the income of $5,000 to each for life, and also creates other trusts and directs distribution upon the death of his wife and daughter, the three annuitants are entitled, after all the other trusts have terminated, and his wife and daughter have died, to have set aside the respective sums from which their annuities are to be paid, but they have no standing to object to the distribution of the remainder of the estate. The gift to them is not a moiety of the entire income, but of the income of a moiety of the estate.
    Argued Jan. 13, 1910.
    Appeal, No. 361,
    Jan. T., 1909, by Emma Gertrude Rumsey and Anna G. Rumsey, from decree of O. C. Phila. Co., Jan. T., 1903, No. 575, dismissing exceptions to adjudication in Estate of Israel Michener, deceased:
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Exceptions to adjudication of second account of executors.
    In addition to the facts set forth in the opinion of the Supreme Court it appeared that by the seventh item of the will of Israel Michener, the testator directed his executors to: “ average the income of all the investments of my estate and to pay over to my sister Mary Michener the income of the sum of ten thousand dollars for and during the term of her natural life — And also to pay over to my niece Emma G. Rumsey the income of the sum of five thousand dollars for and during the term of her natural life — And also to pay over to my niece Anna G. Rumsey the income of the sum of five thousand dollars for and during the term of her natural life — And if either of my nieces shall die leaving children living at the time of her decease, then my Executors and the survivor of them shall pay over to such children who may be living at the time of the death of either of my nieces the amount of which their mother during her life received the income — And in case both of my said nieces shall die and only one of them shall leave a child or children living at time of her decease then my Executors and the survivor of them shall pay over to such child or children the whole sum upon which both of my said nieces received the income — If either of my said nieces shall die without leaving children living at the time of her death then my Executors and the survivor of them shall pay over to the survivor of my said nieces the income of the sum of ten thousand dollars during her natural life — And if the survivor of my said nieces shall die without leaving children living at the time of her death then this sum of ten thousand dollars shall become part of my residuary estate.”
    The remaining income was, under the eighth item of his will, to be paid one-half to his wife and one-half to his daughter for their lives. Upon the death of either, the wife or daughter, the executors were directed to pay to the survivor three-fourths of the income and from the remaining one-fourth he directed his executors to pay to each of his nieces, the appellants, the income of the additional sum of $5,000, further providing in the same paragraph :
    “Of the balance of this one fourth part of my estate after providing for the bequests to my sister and nieces mentioned in this item of my Will I direct my Executors and the survivor of them to pay over to my brother John H. Michener one half of the remaining sum and to distribute the balance among my nephews, Harry G. Michener, Frank L. Michener, Joseph G. Michener, William N. Michener, Charles G. Michener and John Hanson Michener in equal proportions.”

      By the ninth item of the will, it was provided:
    “ Upon the death of my wife and daughter I direct my Executors and the survivor of them to pay over to my sister Mary Michener the income of the additional sum of five thousand dollars for and during the term of her natural life and to pay over to my niece Emma G. Rumsey the income of the additional sum of five thousand dollars for and during the term of her natural life and also to pay over to my niece Anna G. Rumsey the income of the additional sum of five thousand for and during the term of her natural life with the same disposition of these additional principal sums of which my nieces shall receive the income during life and under the same conditions as specified and directed in the seventh item of this my last Will and Testament — Of the remainder of my estate I direct my Executors and the survivor of them to pay over to my brother John H. Michener the sum of twenty-five thousand dollars and to distribute the remaining portion among my nephews Harry G. Michener, Frank L. Michener, Joseph G. Michenér, William N. Michener, Charles G. Michener and John Hanson Michener in equal proportions.”
    By the second item of his will the executors were directed to convert the personal estate into money, and “ dispose of as hereinafter directed” in the will.
    In 1903 an account of the personal estate was filed by the executors. The wife and daughter of the testator having previously died the account was adjudicated and distribution made to the residuary legatees; $30,000 having been set aside as a fund of which the income was directed to be paid to the appellants.
    Since that time the appellants have been receiving, without objection, the income from the mortgage thus set aside by the court.
    The second account of the executors was filed in 1907 and was an accounting of the proceeds of the sale of certain real estate. Pending the adjudication, a petition was filed by the appellants for a review of the adjudication of 1903, in order that the bequests of the income of $30,000 might be declared charged upon the whole estate of the decedent. The petition was refused, the lower court, in its opinion, stating that the appellants had been guilty of laches. The Supreme Court, upon appeal, affirmed the lower court, per curiam.

      Error assigned was in dismissing exceptions to adjudication.

      Horace M. Rurnsey, for appellants.

      John G. Johnson, with him Maurice Bower Saul, for appellees.
   Per Curiam,

February 21, 1910:

We concur in the conclusion stated in the opinion of the learned president judge of the orphans’ court that the rights of the appellants were fixed by the adjudication of the orphans’ court filed in 1903 and by the decree of that court on a petition for review, which was affirmed by this court, in Michener’s Est., 225 Pa. 60. But aside from the question of res adjudicata, the contention of the appellants is not well founded. The gift to them was not of a moiety of the entire income, but of the income of a moiety of the estate. The direction in the seventh item of the testator’s will is to “average the income of all the investments of my estate and to pay over to my sister Mary Michener the income of the sum of ten thousand dollars for and during the term of her natural life — And also to pay over to my niece Emma G. Rurnsey the income of the sum of five thousand dollars for and during the term of her natural life — And also to pay over to my niece Anna G. Rumsey the income of the sum of five thousand dollars for and during the term of her natural life.” This direction applied to the income while the estate was held in trust and until the direction to distribute became operative upon the death of his wife and daughter. Otherwise the direction to distribute upon their deaths was meaningless. All of the trusts except those for the appellants having terminated and the gift of income to them having been secured by the setting aside of an ample sum, there is no reason why the balance of the estate should not be distributed.

The decree is affirmed.


text:
    Page’s Estate.

      Will — Construction—Children.
    Where a testator directs that the income from a specified share of his estate shall be paid to a nephew for life, and after his death such share should go “to and among any child or children of him the said . . . . living at the time of his death absolutely and in fee simple,” the children of the nephew living at the time of the latter’s death are .entitled to the principal of the share to the exclusion of the children of deceased children of the nephew.
    Argued Jan. 13, 1910.
    Appeal, No. 355,
    Jan. T., 1909, by Hartman R. Breuil, Jr., by his guardian, The Pennsylvania Company for Insurances on Lives and Granting Annuities, from decree of O. C. Phila. Co., Oct. T., 1880, No. 313, dismissing exceptions to adjudication in Estate of George W. Page, deceased.
    Before Fell, C. J., Brown, Mestrezat,. Potter, Elkin, Stewart and Moschzisicer, JJ.
    Affirmed.
    Exceptions to adjudication.
    From the record it appeared that George W. Page died on January 21, 1875. Under the terms of his will he divided his residuary estate into six parts, and created trusts as to each part. As to the trust for two-sixths part he directed that the income should be paid to his nephew, James F. Breuil, to and for all the term of his natural life, and from and immediately after the decease of his nephew James F. Breuil, then in trust, •“■to grant, distribute and convey the full two-sixths part of my said residuary estate to and among any child or children of him the said James F. Breuil living at the time of his death absolutely and in fee simple.”
    At the time of the death of George W. Page, the nephew, James F., Breuil was living. There were also living at that time Frank Breuil and- Hartman Breuil, children, of James F. Breuil. James F-. Breuil died .April 21, 1909, leaving Frank Breuil surviving. Hartman Breuil, the other son, died August 11, 1908, leaving surviving Hartman R. Breuil, Jr.

      Hartman R. Breuil, Jr., claims one-half of the said balance of principal estate; that the word “ children,” as used by the testator, included “grandchildren.” The auditing judge refused the request to award one-half of the estate to Hartman R. Breuil, Jr.
    Exceptions were filed on behalf of the said Hartman R. Breuil, Jr., by his guardian, the Pennsylvania Company for Insurances on Lives and Granting Annuities, which were dismissed at the end of an opinion filed by Penrose, J., which was as follows:
    Campbell’s Est., 202 Pa. 459, was not intended to change the well-settled principle of interpretation that in the absence of evidence of a contrary intention afforded by the will itself a gift to “children” will not be understood as including any more remote class of descendants. The will in that case gave vested estates to the children of the first takers, a daughter of the testator, subject to a limitation over to his other “children,” per stirpes, if she should die without leaving “ children ”; and as conditions subsequent, terminating a vested estate, are construed most strongly in favor of the first taker and against forfeiture, and if in any permissible sense of the words of the condition there has been no breach, that view will be adopted by the court, it was held that the gift to the other children of the testator did not take effect if a grandchild of the daughter survived her. The will in the present case differs most radically from that in Campbell’s Estate. The estate of those entitled at the termination of the life estate is contingent, purely. The gift is to the “children” of the first taker, living at the time of his death; and being his “child” is no less an integral part of the description of the person then becoming entitled than is the fact of being then alive.
    It may be added that the provisions with regard to the devolution of the other shares of the testator’s estate are entirely different from what is said as to the shares of the nephew, and “where a testator uses a different word or phrase he will be presumed to have a different meaning.”
    Exceptions dismissed and the adjudication confirmed absolutely.

      Errors assigned were in dismissing exceptions to adjudication.

      Frank P. Prichard, with him Henry P. Brown, for appellant.

      George Wharton Pepper, with him James F. Hagen, for appellee.
   Per Curiam,

February 21, 1910:

The order of the court dismissing exceptions and confirming the adjudication is affirmed on the opinion of the learned president judge of the orphans’ court.


text:
    Hunt v. Philadelphia & Reading Railway Company, Appellant.

      Negligence — Railroads—Master and servant — Fellow servant — Act of April 4, 1868, P. L. 58.
    In an action against a railroad company to recover damages for personal injuries, where it appears that the defendant company was rightfully using the tracks of plaintiff’s employer, another railroad company, the plaintiff is not a quasi employee of the defendant company within the contemplation of the Act of April 4, 1868, P. L. 58.
    Argued Jan. 14, 1910.
    Appeal, No. 228,
    Jan. T., 1909, by defendant, from judgment of C. P. No. 1, Phila. Co., March T., 1907, No. 2,490, on verdict for plaintiff in case of Howard A. Hunt v. Philadelphia & Reading Railway Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Kinsey, J.
    The facts appear by the opinion of the Supreme Court, and by the former report of the case in 224 Pa. 604.
    Verdict and judgment for plaintiff for $8,000. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Wm. Clarke Mason, for appellant.

      Thomas Learning, with him John R. K. Scott, for appellee.
   Opinion by

Mr. Justice Mestrezat,

February 21, 1910:

This action was tried before a jury and resulted in a verdict for the plaintiff. The trial judge refused binding instructions for the defendant company but the court in banc, on motion of counsel, subsequently entered judgment for the defendant under the Act of April 22, 1905, P. L. 286. The plaintiff appealed and assigned as error the granting of defendant’s motion for judgment non obstante veredicto. The judgment was reversed by this court, and the trial court was directed to enter judgment upon the verdict: Hunt v. Philadelphia & Reading Railway Co., 224 Pa. 604. The judgment having been entered below as directed by this court, the defendant has taken this appeal and assigns for error the action of the court in declining to charge that “ under all the evidence in this case your verdict must be for the defendant.” It will, therefore, be observed that on the former appeal taken by the plaintiff we held that under the evidence the case was for the jury; and we are now asked to say on this appeal taken by the defendant company that the case was not for the jury and that the court should have directed a verdict for the defendant company. After a reargument and further consideration, we are not convinced that our former judgment is erroneous.

We did not discuss the effect of the Act of April 4, 1868, P. L. 58, in the opinion filed in the former case, as under our cases we regarded the question too clear to need discussion. That act provides that “when any person shall sustain personal injury or loss of life while lawfully engaged or employed on or about the roads .... and premises of a railroad company, .... of which company such person is not an employee, the right of action and recovery in all such cases against the company shall be such only as would exist if such person were an employee.” It appears from the evidence that the defendant company was using the tracks of the Baltimore & Ohio Railroad Co., and presumptively by the latter’s permission, and hence at the time and place of the accident, they must be considered the property of the defendant. The plaintiff, an employee of the Baltimore & Ohio Railroad Co. and then engaged in its service, was therefore not employed on or about the defendant’s road and was not a quasi employee of the defendant company within contemplation of the act of 1868. The facts of the case bring this branch of it within the doctrine of Kelly v. Union Traction Co., 199 Pa. 322, and Keck v. Philadelphia & Reading R. R. Co., 206 Pa. 501.

The judgment is affirmed.


text:
    Tetlow v. Rust, Appellant.

      Equity — Fraud—Trusts and trustees — Trustee ex maleficio — Mortgage —Defeasance.

    Where a person professing to be a friend of two partners advances to them about $200 to pay some pressing debts, and takes from them a bill of sale for $6,000 worth of machinery and material, and a deed for real estate of the value of $2,500, and it appears that the deed was to be signed by the two partners and their wives, but that one of the wives had refused to sign it, although the notary with whom it had been left falsely certified that she had acknowledged it, the person taking the deed and bill of sale will be declared a trustee ex maleficio, and will be compelled to surrender the papers on repayment to him of the advances which he has made.
    Argued Jan. 14, 1910.
    Appeal, No. 287,
    Jan. T., 1909, by defendant, from decree of C. P. No. 2, Phila. Co., March T., 1908, No. 6,024, on bill in equity in case of William Tetlow and John H. Broadfield, trading as Tetlow & Broadfield, v. Alfred J. Rust.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity for the cancellation of a bill of sale, reconveyance of real estate and satisfaction of a judgment.

      Wiltbank, J., filed the following opinion:
    I find the facts as follows:
    1. That the plaintiffs, John H. Broadfield and William Tet-low, were engaged in the business of conducting a machine shop at the southeast corner of Norris and Mascher streets, the city of Philadelphia, and had been so engaged for about twenty-five years last past, and that there has been no dissolution of said copartnership.
    2. That the property of said copartnership consisted,—
    (а) Of certain real estate on which its shop is located, situate at the southeast corner of Norris and Mascher streets, in the city of Philadelphia, of the value of about $2,500, in excess of the incumbrances thereon, amounting to $3,500.
    (б) Of certain tools, implements and machinery, the value of which is in excess of $3,000.
    (c) Of certain stock and material on hand, of the value of about $3,000.
    3. That on or about May 21, 1908, the firm was indebted to various persons to the amount of about $600, and that a magistrate’s suit had been instituted against them on a claim for insurance premiums, the amount of which was disputed.
    4. The defendant, Alfred J. Rust, was a personal friend of William Tetlow, one of the partners, and learned of the suit pending before the magistrate, and then proposed, as Tetlow’s friend, to assist the firm by advancing them certain moneys to pay their obligations.
    5. The apparent purpose of the defendant was to advance moneys to the plaintiffs to help them pay their debts, and not to buy out their business establishment.
    6. That plaintiff firm was not in such financial straits as rendered it necessary for them to sell their tools, machinery and real estate to the defendant to extricate themselves from debt.
    7. In a conference between the parties it was stated that the firm’s obligations approximated $600, and the defendant stated that he would advance that sum or as much thereof as might be necessary, to the firm, taking as security therefor a judgment note and bill of sale for the tools, implements and machinery and a conveyance of the real estate.

      8. That the judgment note was given under date of May 21, 1908, for the sum of $600.
    9. In a subsequent conference it was suggested by defendant that $500 would probably be more than sufficient to settle with the creditors, as he could doubtless compromise some of the bills. He therefore made out his check for that amount to the order of the firm and after securing the indorsement of John H. Broadfield thereto, had the check cashed and himself obtained the proceeds.
    10. The plaintiffs, .placing implicit confidence in the integrity of the defendant, also gave him a power of attorney, authorizing him to make adjustments with their creditors.
    11. Of the amount thus obtained by the defendant or charged by him against the firm, the defendant paid out the sum of $279.90 in settlement of the firm’s obligations, including a debt of $28.00 due the defendant himself.
    12. That the defendant also collected for the firm the sum of $213.89 from the sale of scrap iron, and so forth, in the shop, from which amount he claims to have expended the further sum of $160.16 for their benefit, leaving the net amount actually laid out and expended by the defendant for the plaintiff firm of $279.90 plus $160.16, less $213.89 additional moneys received, or $226.17.
    13. That the defendant never laid out or expended for payr ment of obligations of the firm any sum in excess of the net amount of $226.17.
    14. That the deed which it was also intended should be given to the defendant by the plaintiffs as a part of the transaction, was not signed, sealed or acknowledged by Caroline S. Broadfield, one of the parties named therein.
    15. That the certificate of acknowledgment, reciting that Caroline S. Broadfield acknowledged said deed, is false.
    16. That the deed was left with William B. Davis, notary public, who was there to take the acknowledgments pending execution by Mr. Broadfield, and that there was no authorized delivery thereof by the plaintiffs to the defendant.
    17. It was not intended by the parties at the time the deed was signed by John H. Broadfield that the transaction should be treated as completed before obtaining the signature and acknowledgment of Mrs. Broadfield.
    18. Before the filing of this bill, the plaintiff, John H. Broad-field, demanded of the defendant an accounting of what moneys he had expended on behalf of the firm and offered to pay him whatever moneys he had so advanced, with interest thereon.
    19. By reason of the superior knowledge of the defendant and his overmastering influence over the plaintiffs, and by reason of their weakness and dependence or trust justifiably reposed in the defendant, the parties did not deal on equal terms, and the situation thus shown makes it apparent that an unfair advantage in the transaction was taken by the defendant.
    CONCLUSIONS OF LAW.
    1. The bill of sale and incompleted deed under the circumstances shown were not in law an absolute transfer of the tools, machinery and real estate of the copartnership to the defendant, but were only operative as security for the payment of moneys advanced by the defendant for the firm, with interest thereon.
    2. The defendant’s declaration in the third paragraph of paragraph five of his answer, that he was to “advance any additional money (in excess of the $600 alleged to be the consideration for the tools, machinery and real estate) which should be necessary for that purpose (i. e., adjusting and paying off the firm’s creditors) not exceeding $1,000,” is corroborative evidence in support of plaintiff’s contention and testimony that the bill of sale, judgment note and deed were intended as security only for moneys advanced by the defendant.
    3. The defendant’s admission in paragraph seven of his answer that he agreed not to record the deed for the real estate for a period of three months, and to give plaintiffs an opportunity to sell it for their own advantage, at a price in excess of the amount defendant alleges he paid for it, viz.: $100, — is further corroborative of plaintiffs’ contention that an absolute sale was not intended.

      4. In this case fraud is presumed on the part of the defendant and the transaction is presumed to be void because the evidence shows that the defendant’s relation towards the contracting parties appears to have been of such a character as to render it certain that the parties did not deal on equal terms, but that the defendant) by his superior knowledge and overmastering influence and the dependence and trust justifiably reposed in him by the plaintiffs, obtained an unfair advantage over the plaintiffs in the transaction.
    5. It is incumbent upon the defendant in whom such confidence was reposed to establish affirmatively that no deception was used, and that all was fair, open, voluntary and well understood.
    This the defendant has failed to do.
    6. Defendant’s declaration that he intended to lease the firm the property he claimed to have acquired from them for their own protection, is evidence of the scheme of fraud defendant was attempting to practice on plaintiffs.
    7. Inadequacy of consideration is presumptive evidence of fraud; and there was such inadequacy of consideration in this transaction as to render the alleged sale of the tools, machinery and real estate unconscionable and therefore void.
    8. The defeasance act of 1881 has no application to the facts appearing in the present case, because the deed offered by the defendant is not “regular and absolute” on its face.
    (a) Because it is not signed and sealed or acknowledged by all of the parties by whom it purports to be given.
    (ib) On its face it bears witness of an incompleted transaction.
    (c) The certificate of acknowledgment is not in accordance with the signature of the parties.

      (d) The certificate of acknowledgment is admittedly false.
    (e) There was no delivery of the deed to the defendant; leaving the deed with the notary pending execution by all of the parties is not a delivery.
    9. Where fraud is shown in the transaction the defeasance act of 1881 has no application.
    10. By reason of the circumstances in this case the defendant is a trustee ex maleficio for the plaintiffs.

      A decree was entered in accordance with the prayers of the bill.

      Error assigned was the decree of the court.

      Thomas F. Gain, for appellant.
    — The conclusion of the learned trial judge that fraud is presumed under the circumstances of this case, and that the burden was upon the defendant to disprove it, was error: Colonial Trust Co. v. Hoffstot, 219 Pa. 497; Frey’s Est., 223 Pa. 61; Graham v. Pancoast, 30 Pa. 89; Walker v. Walker, 67 Pa. 185.

      Fred. Taylor Pusey, for appellee, cited:
    Sweetzer’s App., 71 Pa. 264; Rhines v. Baird, 41 Pa. 256; Heath’s App., 100 Pa. 1; Logue’s App., 104 Pa. 136; Saunders v. Gould, 134 Pa. 445; Stepp v. Frampton, 179 Pa. 284; Hasel v. Beilstein, 179 Pa. 560.
   Per Curiam,

February 21,1910:

The decree is affirmed at the cost of the appellant on the findings of fact and conclusions of law by Judge Wiltbank.


text:
    Corbitt, Appellant, v. Philadelphia Rapid Transit Company.

      Negligence — Street railways — Bridge—Contributory negligence.

    In an action against a street railway company to recover damages for personal injuries, a nonsuit is properly entered where it appears that the plaintiff who was injured in crossing a bridge over which the defendant ran two tracks, instead of using a safe sidewalk on one side of the bridge, walked along a narrow converging path on the other side of the bridge between the outer track and bridge rail, that the night was dark; that the car was lighted brilliantly within with headlights in front; that the region was suburban; and that the car was running rapidly with no gong sounding, there being no crossing near, and the track in front clear.

      Argued Jan. 14, 1910.
    Appeal, No. 239,
    Jan. T., 1909, by plaintiff, from order of C. P. No. 2, Phila. Co., March T., 1906, No. 2,119, refusing to take off nonsuit in case of William D. Corbitt v. Philadelphia Rapid Transit Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Wiltbank, J.
    The facts relating to the accident are stated in the opinion of the Supreme Court.

      Error assigned was order of the court refusing to take off nonsuit.

      Ira Jewell Williams, of Simpson & Brown, for appellant.

      Thomas Learning, with him William M. Stewart, Jr., for appellee.
   Per Curiam,

February 21,1910:

On the north side of the bridge on which the plaintiff was injured there was a plank sidewalk seven feet wide. The rest of the surface of the bridge was used as a roadway for wagons and there were two tracks of the defendant’s road on it. The southernmost track was at one point within four and a half feet of the rail of the bridge. In crossing the bridge going west, the plaintiff used the sidewalk. As he approached the bridge on returning he was on the foot pavement on the south side of the street. When he reached the bridge, he found that the pavement abruptly ended and a hand rail extended across it. Instead of crossing the street to the north side, where he knew there was a good sidewalk over the bridge, he followed a narrow, rough, irregular dirt path with sloping sides, that extended over the bridge between the tracks and the south rail of the bridge. Before entering on this path he observed that the space between the tracks and the rail became gradually narrower because of their convergence. The night was dark; there were no lights on the south side of the bridge and, as he advanced, he was unable to see the car tracks and barely able to see the bridge rail. How the accident to the plaintiff happened does not clearly appear from his testimony but was left largely to conjecture. He testified that he was struck from behind by something, he did not know what, and thrown down and bruised. He was not on the car track, and evidently he was not struck by any part of the front of the car. If touched by it at all, it must have been by the projecting side as it passed him. The negligence alleged was that the car was carelessly managed. The only proof in support of this was that it was running rapidly and the gong was not sounded. It was in a suburban section, was brilliantly lighted inside, the headlights were burning, there was no crossing near, and the track in front was clear. There was no occasion to slacken speed or to sound the gong, because there was no danger to anyone crossing the bridge in the ordinary way.

The plaintiff was also properly adjudged to have been negligent in turning from the safe way provided and choosing one that he saw was dangerous.

The judgment is affirmed.