text:
    Waltz v. Pennsylvania Railroad Company, Appellant.

      Negligence — Railroads—Infant—Parent and child — Parties—Amendment.
    Where a suit is brought in the name of a father to recover damages for the death of an infant son, and subsequently at the instance of the mother, the record is amended so as to include her as a party plaintiff, and at the trial the court at the request of the defendant instructs the jury to state in their verdict that, if they find damages for plaintiff, such damages are for the full compensation of both parties, and the jury returns a verdict in a lump sum for the parents as “total damages for the death of their son,” the judgment will be affirmed, notwithstanding the failure to join the husband and wife as plaintiffs at the inception of the suit.

      Negligence — Railroads—Newsboy—Station—Defective locomotive.

    Where a boy employed by a news company is properly and lawfully engaged in taking newspapers from a train standing at a station, and while so doing is killed by a locomotive passing on the track between the train and the station, the company will be liable for his death where it appears that the locomotive was in a defective condition, that by reason of the defect it could not be stopped by its engineer after he had ascertained that a train was standing at the station, and that the locomotive was being operated by direct order of the superintendent of the division after he had been advised of its defective condition.
    Argued Oct. 10, 1906.
    Appeal, No. 144, Oct. T., 1906, by defendant, from judgment of Superior Court, April T., 1906, No. 4, affirming judgment of C. P. Cambria Co., Dec. T., 1903, No. 336 on verdict for plaintiff in case of M. C. Waltz v. The Pennsylvania Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from Superior Court. See 31 Pa. Superior Ct. 286.
    Trespass to recover damages for death of a minor son.
    Verdict and judgment for plaintiffs for f1,446.56. Defendant appealed.
    The opinion of the Superior Court, Orlady, J., was as follows :
    The plaintiff’s son, aged about fifteen years, was killed at Cresson station on the defendant’s railroad on November 20, 1902, about five o’clock in the evening.
    It is undisputed that the Union News Company, under an arrangement with the defendant, had a booth or stand, for the sale of papers, periodicals, etc., on the platform of Cresson station, and received its supplies at that point by baggage car service, the goods being delivered at the car door to the employees of the Union News Company, and by them taken to the .booth. John F. Parrish was the local agent of the Union News Company, and, as a personal enterprise, operated a small business in the name of the Cresson News Company, by delivering papers, magazines, etc., in Cresson, at points away from the station.
    Plenry Waltz was employed by Parrish for $2.50 a week to deliver papers received at the booth around the town, and to perform such other work as he was directed.
    On November 20, Parrish was obliged to go away from Cresson for the night, and requested his father to take care of the evening business at the booth, lock it up, and open it for business the next morning.
    The morning daily papers arrived at six and eight thirty o’clock by east and west trains. The news stand was generally kept open until about eight o’clock p. M. On this evening, Parrish, the father, who was there representing his son, testified as follows: “ Q. Did you see Henry Waltz around there?- A. Yes, sir. Q. Where was he? A. Standing at the outside window; I was inside. Q. What was Henry Waltz doing there ? A. He was there for the purpose of helping that evening. Q. What were you doing there? A. I was tending to the news stand for the evening. Q. What was Henry doing ? A. Well, he intended — his idea was to bring the papers from the train, as the train pulled in there, he was to bring the papers to the stand to me. That is what he was there for, to bring the papers up to the stand. Q. You were in charge of the news stand that evening? A. Yes, sir. Q. Did you invite Henry Waltz down there that evening? A. Yes, sir ; I asked him to help me out that evening. Q. You asked him to come down ? A. Yes, sir. Q. What were John Parrish and Mr. Waltz talking about? A. About newspapers. Q. What was the conversation? A. Mr. Parrish told him to go and get the newspapers when the train would come in from the west. He was to get them and distribute them among the customers. To get them ready. Q. What train did he look for the papers on? A. It was No. 84 (a passenger train).”
    The boy was standing on the station platform near to the news booth, with baggage trucks in his immediate vicinity when, as the appellant in his history of the case states, “ The accident occurred by an engine running east on track No. 1, while the passenger train was standing on track No. 2, going in the same direction, striking a baggage truck, which was thrown against the deceased.”

      This engine had become disabled while hauling a train of cars from South Fork eastward and was obliged to leave the train at Portage, and from there the engineer reported its defective condition to the superintendent of the division. Orders were issued to the engineer to proceed to Altoona with the engine and tender alone, and while he was approaching Cress on station, owing to the escaping steam which filled the cab, he was unable to see along the line of the track and distinguish the passenger train standing at Cresson station. When quite near to the station he endeavored to bring his engine to a standstill, but found that the throttle would not work, and before he could apply the brakes successfully, the engine had passed through the station on the track between the one on which the passenger train was then standing and the station platform, striking the truck, and causing the death of the boy. This occupancy of the track by the engine was in direct violation of Rule No. 114, as follows: “ Trains approaching stations where a passenger train is receiving or discharging passengers must be stopped before reaching the passenger train.”
    The only explanation of the violation of this rule was, that by reason of the defective freight engine, it could not be controlled. On the trial a prominent contention was that the boy was a trespasser on the track of the company, and unnecessarily exposed himself to a manifest danger by being there. This question was largely one of fact, and was fairly submitted to the jury, in the general charge as follows: “ If he was not there for a lawful purpose, if he was a trespasser and was not in some lawful pursuit, or was careless and that contributed in any degree to his death, then the plaintiff, in this case, could not recover.”
    There was abundant evidence to justify the jury in finding that as an employee of the Union News Company, he -was acting under orders of the representative of that company in doing its necessary work, and at the very place and time where the railroad company provided that it was to be done, by delivering the papers at the car door, and that he was not a trespasser, but was 'there under his right as an employee of the Union News Company.
    This action was brought in the name of the father. The defendant’s first point being, “ Inasmuch as Martha Waltz, the mother of the deceased, is living, and is not a party to this action, the plaintiff cannot recover,” which was refused by the court. The defendant’s fifth point was as follows : “ The defendant requests the court to instruct the jury that if they find for the plaintiff, to state in their written verdict whether the damages so found are for full compensation for both parents of the deceased.” This was answered as follows: “We instruct you, if you find for the plaintiff to find full compensation and damages, so far as it affects both parents, and you must say in your verdict that you so find. That is, you will find full compensation in damages, whether due the father, or due the mother, or due both the father and the mother.” The verdict returned was as follows: “Sept. 9, 1904. We, the jurors impaneled in the above-entitled case, find for the parents, the sum of $1,446.56. Total damages for the death of their son.”
    The plaintiff filed a formal motion to amend by adding the name of Mary Waltz, the mother of the deceased, as one of the parties entitled to recover. On April 4, 1905, the amendment was allowed, and judgment was then entered on the verdict in favor of the plaintiff.
    Whatever of irregularity there was in the pleadings, it was relieved by this amendment. In Huntington & Broad Top Mountain Railroad Company v. Decker, 84 Pa. 419, the proper practice to be followed, under the act of 1855, is fully considered so that there should be no controversy in the profession as to who are the proper parties, and how their demand should be stated. See also Kerr v. Pa. R. R. Co., 169 Pa. 95; Weaver v. Iselin, 161 Pa. 386; Haughey v. Pitts. R. R. Co., 210 Pa. 367; Hughes v. Williams, 17 Pa. Superior Ct. 229.
    The addition of the name Mary Waltz did not change the form of the action, and while her name should have been included in the statement as a person entitled to participate in the damages, its omission did not in any way harm the defendant in the light of the verdict returned by the jury.
    The negligence of the company in allowing the dismantled engine to proceed on its way to Altoona, when it could not be controlled by the engineer, was a proper matter for the consideration of the jury in determining whether that act was negligent or not. It would be straining the judgment of com-. mon-sense jurors to hold under the testimony of the engineer who had it in charge that it was not negligent. This act of negligence was in the carrying out of the direct order of the superintendent of the division, after he was advised, “ That the engine was in no condition to haul the train. The packing was blown out of the throttle.”
    In view of the character of his employment, the boy was not a trespasser while he was receiving the papers from the baggage car, and, conceding that he was engaged or employed about the depot within the meaning of the Act of April 4, 1868, P. L. 58, the plaintiff was entitled to recover by reason of the negligence of the company in permitting the freight engine to run through the station while the passenger train was standing at that point.
    The case was carefully tried in the court below and after a fair submission to the jury of all the disputed facts, no sufficient reason has been shown to warrant our disturbing the verdict as returned by the jury.
    The judgment is affirmed.

      JSrror assigned was the judgment of the Superior Court.

      H. W. Storey, for appellant.
    The court held that the amendment of bringing in a new party did no harm.
    The facts are these:
    November, 20, 1902, the accident occurred; November, 18, 1903, this action was brought; September 9, 1904, trial took place; September 9,1904, defendant objects for want of parties; April 4, 1905; motion for anew trial refused; April 4,1905, plaintiff moves to amend by adding the name of Mary Waltz, which was granted under objections.
    We contend there are several reasons why the amendment should be permitted, viz :
    1. The act of 1855 requires that the statement shall set forth who are entitled to recover. This was not done.
    2. Defendant objected at the first moment of the trial for the omission. There was no amendment then.
    3. Defendant submitted two points on the subject. Still there was no amendment.
    When the court refused the first point, we then submitted the fifth point, to ascertain definitely whether the jury would allow damages to one who was not a party.
    January 7, 1907:
    4. The Act of April 26, 1855, P. L. 809, specifically states that the action shall be brought within one year after the death, and not thereafter.
    5. The amendment was made more than a year after the statute of limitations had interposed.
    6. A new party was brought in thereafter.
    The name of a use plaintiff cannot be added to the record when the statute of limitations has barred the action as to him: Comrey v. East Union Township, 202 Pa. 442.

      Robert M Cresswell, for appellee.
    The amendment was proper: Life Ins. Co. v. Birnbaum, 116 Pa. 565; Rosenthal v. Ehrlicher, 154 Pa. 396 ; Herbstritt v. Lackawanna Lumber Co., 212 Pa. 495.
   Opinion by

Mr. Justice Mestrezat,

This is not a common-law action, but an action brought under the provisions of the Acts of April 15, 1851, P. L. 669, and April 26, 1855, P. L. 309. It is solely by virtue of the provisions of these statutes that damages are recoverable for the death of Henry Waltz. The latter act provides in its first section that “ the persons entitled to recover damages for any injury causing death shall be the husband, widow, children or parents of the deceased, and no other relative, and the sum recovered shall go to them in the proportion they would take his or her personal estate in case of intestacy;’’ and in the second section it is provided that “ the declaration shall state who are the parties entitled in such action.”

Henry Waltz was a minor son of M. C. Waltz and of his wife Mary Waltz, and the parents are both living. It is, therefore, apparent that in bringing the suit the act of 1855 was entirely disregarded, notwithstanding the plain terms of the statute and the numerous decisions of this court pointing out the “proper practice. The action should have been brought jointly in the names of both parents and the statement should have given the names of the parties who were entitled to the damages recovered. Neither of these requirements of the statute was complied with, and the trial court was clearly wrong in holding that “ the failure to join the husband and wife, the parents of the decedent, in this action ” was not error. The ruling of- the learned judge disclosed a misapprehension of the plain terms of the statute.

But the error of the plaintiff’s counsel in bringing the action and of the ruling of the trial court was cured by what occurred at the trial. The defendant’s counsel requested the court “ to instruct the jury that if they find for the plaintiff, to state in their written verdict whether the damages so found are for the full compensation for both parents of the deceased.” Complying with this request, the court instructed the jury as follows: “We instruct you, if you find for the plaintiff, to find full compensation and damages so far as affects both parents, and you must say in your verdict that you so find; that is, you will find full compensation in damages, whether due the father or due the mother, or due both the father and the mother.” The written verdict of the jury was in the following language: “We, the jurors impaneled in the above-entitled case, find for the parents the sum of $1,446.50, total damages for death of son.” Judgment was entered on this verdict.

It will therefore be observed that at the instance of the defendant company, the record was amended in fact, though not formally, on the trial so that both parents were made plaintiffs, and that the case" was tried and the verdict was rendered for both on which a judgment was duly entered. It is from this judgment, in favor of both parents, we have this appeal; and it is not apparent to us how we can reverse the judgment because the parents were not joined in bringing the action and in recovering the judgment against the defendant. Mrs. Waltz, the mother of the deceased, is precluded from attacking the action of the court on the trial of the cause by which she was made a party plaintiff by the motion of her counsel to amend on April 4, 1905, which was allowed by the court. This was a ratification and approval by Mrs. Waltz of the action of the jury in considering and determining her rights as a party plaintiff in the action and of the entry of judgment on the verdict. She is therefore concluded as to any right of action accruing to her against the defendant by reason of the death of Henry Waltz. The defendant, company is likewise bound by the action of the court, taken on its initiative, in treating the suit as brought by the father and mother of the deceased and in directing the jury “ to find full compensation and damages so far as affects both parents.” As thus amended, the proper parties were made plaintiffs, and the amendment made by the court on April 4, 1905, was unnecessary and'did-the defendant no harm, and hence may be regarded as harmless error.

The other questions raised on the record were properly disposed of by the Superior Court, and therefore, for the reasons above stated,

Its judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Elkin,

license: Public Domain

text:
    Black v. Bessemer & Lake Erie Railroad Company, Appellant.

      Negligence — Railroads—Overhead crossings — Duties as to signals.

    A railroad company is not bound by any unbending rule of law to ring a bell or blow a whistle as a train approaches an overhead crossing. Penna. Railroad Co. v. Barnett, 59 Pa. 259, distinguished.
    When the risks and dangers of crossing at grade have been avoided by the construction of an overhead crossing at the expenditure of a large sum of money, it would be unreasonable to make an imperative unbending rule requiring the performance of duties demanded as a protection where the danger is greater, as at a grade crossing.
    Where a traveler approaching an overhead crossing has a clear view of the railroad for a distance of nearly 1,500 feet in the direction from which a train is coming, the railroad company is under no imperative duty to him to signal the approach of the train by blowing a whistle, or ringing a bell.

      Negligence — Contributory negligence — Railroads.
    In an accident case, if the testimony does not disclose negligence on the part of the defendant, there can be no recovery ordinarily, no matter how-free from negligefl.ee the facts show the plaintiff to be.
    Argued Oct. 13, 1906.
    Appeal, No. 16, Oct. T., 1906, by defendant, from judgment of C. P. Mercer Co., Oct. T., 1906, No. 6, on verdict for plaintiff in case of Joseph Black v. The Bessemer & Lake Erie Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Reversed.
    Trespass to recover damages for death of plaintiff’s wife. Before Miller, P. J.

      January 7, 1907:
    At the trial it appeared that on December 2,1903, plaintiff’s wife, and her father, Anson Curry, were driving in a one-horse buggy on a public road which crossed under the defendant’s railroad. As they approached the crossing they had a clear view of the railroad for a distance of nearly 1,500 feet in the direction from which a train was coming. When under or near the crossing the horse took fright, and Mrs. Black was thrown out, and received injuries from which she died a few days afterwards. There was no evidence that a signal was given by the blowing of a whistle or the ringing of a bell.
    Defendant presented these points :
    1. The court is requested to instruct the jury that the evidence in this case shows so clearly and conclusively that a locomotive on the railroad at any point between the crossing and a distance, say 1,000 feet, west of the crossing, was plainly visible from every part of the public road from the opening of the crossing for 300 feet or more back in the direction from which Mr. Curry and Mrs. Black were driving, there can be no doubt of the ability of the two occupants of the buggy to have seen the locomotive if they had looked, and, therefore, there can be no recovery in this case. Answer: Refused. [1]
    2. That under all the evidence in, this case there can be no recovery. Answer: Refused. [2]
    Verdict and judgment for plaintiff for $3,000. Defendant appealed.

      Errors assigned were (1, 2) above instructions quoting them.

      Q. A. Gordon, with him Templeton, Orr Whiteman, for appellant.

      S. 8. Mehard, with him W. J. Whieldon, for appellee, cited: Penna. R. R. Co. v. Barnett, 59 Pa. 259.
   Opinion by

Mr. Justice Elkin,

The negligence complained of in the statement of claim is that the engine was “ running at a very high rate of speed and making great and frightful noises,” and that notice of the approach of the train to the crossing was not given “ by the ringing of the engine bell or the blowing of the whistle.” The testimony produced at the trial failed to show that the engine was running at a high or unusual rate of speed, or that the train was making “great and frightful noises,” nor were any facts proven that would warrant a submission of this question to the jury. This feature of the case was not pressed in the court below, and is not insisted on here. The testimony showed that the train was running at from fifteen to eighteen miles an hour, a very moderate rate of speed, so that we may safely dismiss this allegation from further consideration. The whole case of appellee is based on the allegation that no bell was rung nor was any whistle blown at a proper place before the train reached the crossing. Whether these signals were given was a disputed question of fact at the trial, but, it must be conceded, if it is held to have been the duty of appellant to give them, there was sufficient testimony to submit to the jury in order to determine the fact. Was it the duty of appellant to ring a bell or blow a whistle as the train approached the crossing ? The rule is settled that such duty is imposed on railroad companies at grade crossings. Does the same rule apply to overhead crossings ? If so, the judgment entered in the court below should be affirmed ; if not, there can be no recovery under the facts of this case. The rule as applied to grade crossings was based upon a humane public policy intended as a protection to the lives, limbs and property of travelers, not only on the highways but on the railroads as well. The dangers of crossing at grade were great, and the standard of care required to avoid these dangers was correspondingly great. . In order to avoid, as far as possible, the dangers of collision in such cases, the courts have established the rule not to permit a grade crossing unless the physical conditions are such as to leave no alternative by the construction of an overhead or underground crossing. The railroad companies by the expenditure of vast sums of money are rapidly abolishing them and in this laudable work should be encouraged. When, therefore, the risks and dangers of crossing at grade have been avoided by the construction of an overhead crossing, it would be unreasonable to make an imperative unbending rule requiring the performance of duties demanded as a protection where the danger is greater.- In P. W. & B. Railroad Co. v. Stinger, 78 Pa. 219, it was held that failure to ring a bell or blow a whistle in approaching a grade crossing was negligence per se. This is the settled rule of our cases. In our opinion, however, no such imperative duty is required at overhead crossings, because in such cases the dangers are not so great and the object of giving the signal is different. At a grade crossing the object of requiring the signals to be given is to avoid a collision, while at an overhead crossing the only purpose to be served by blowing a whistle is to give notice to travelers on the highway so that they may keep out of the zone of danger. The learned counsel for appellee relies on Penna. Railroad Company v. Barnett, 59 Pa. 259, as ruling this question in his favor. It was held in that case that wherever danger may result to persons rightfully traveling on a public road which crosses the tracks of a railroad, whether at grade, or over or under the same, it is the duty of the railroad company to give notice of the approach of its trains by proper signals. That case, however, must be understood in the light of its own facts. The cause of the accident there was not a failure to blow the whistle before reaching the crossing, but whistling as the train went under the bridge whilst a traveler was passing over it, by means of which, his horse was frightened, ran off, and injured him. The testimony showed that the accident was caused by blowing the whistle as the train passed under the bridge and this was sufficient to submit to the jury to determine the question of the defendant’s negligence without any reference to the allegation that the alarm signals were not given before the train reached the crossing. It is apparent that the question of the failure to give these signals in that case was introduced, not for the purpose of showing such negligence on the part of the defendant as would warrant a recovery, but to excuse the alleged contributory negligence of the plaintiff in not stopping his team before going' over the bridge and waiting until the train had passed. On the east side of the public road, the direction from which the train was coming, there was a hill which obstructed the view for a distance of seventy-four rods from the railroad to within six rods of it, so that the traveler could not see the approaching train during all that distance, nor until within a few rods of the tracks. Por this reason and under the circumstances of that case the trial judge charged the jury in determining under all the facts whether the company was guilty of negligence, they should take into consideration the relative position of the public road and the railroad at or near the crossino~; the likelihood and facility of a traveler to discover an approaching train; and further taking into consideration the fact that trains approaching from the east would not be seen from a point at a safe distance from the bridge, whether it was the duty of the engineer to give notice of the approach of the train so as to put the traveler on his guard. Even in that case it seemed to be conceded that if the traveler could have seen the train at a safe distance from the crossing, there was no imperative duty resting on the railroad company to give him notice. We doubt if that case would have been affirmed if the only negligence proven was the failure to give notice of the approach of the train, but this fact under all the circumstances of that case, and, the additional and material fact, the blowing of the whistle under the bridge while the horse was passing over it, were submitted to the jury to determine whether the defendant had been guilty of such negligence as to make it liable in damages. In the present case the same rule might be applicable, if in point of fact the horse had been frightened by blowing a whistle as the train passed over the crossing, but this important fact does not appear. Again, it must be observed that as Curry approached the crossing, driving his horse, he had a clear view of the railroad for a distance of nearly 1,500 feet in the direction from which the train was coming. He could see for himself whether a train was in view and did not need to rely on danger signals to give him notice of the fact. It was as much his duty to keep a lookout for the train as it was for the appellant to give notice of its approach even at a grade crossing. At an overhead crossing the purpose of blowing a whistle is to give the traveler notice of the approach of the train, in order that he .may avoid danger, but if he had within himself, by his own sense of sight, with an unobstructed view, the opportunity to observe, and failed to do so, appellant ought not to be convicted of negligence in failing to do for him what he failed to do for himself. It would be a strange rule to convict appellant of negligence for failure to give notice, and, at the same time, excuse the appellee from his duty to take notice, when both parties had equal opportunities for observing the situation and both were required to exercise reasonable care under the circumstances. The case was presented in the court below and has been argued here almost entirely on the question of contributory negligence. In this connection it should be observed that the first and primary question to be considered in every such case is the negligence of the defendant. The contributory negligence of the plaintiff is predicated upon and presupposes the negligence of the defendant. If the testimony does not disclose negligence on the part of the defendant there can be no recovery, no matter how free from negligence the facts show the plaintiff to be : Hanna v. Phila. & Reading Railway Co., 218 Pa. 157. In the present case the facts proven at the trial did not show any such negligence as would make the appellant liable in damages for the injuries sustained and it is the duty of the court to say there can be no recovery.

Judgment of the court below reversed and is here entered for appellant.


author: Mb.. Justice Potter,

text:
    Hastings Water Company, Appellant, v. Hastings Borough.

      Equity — Equity practice — Failure to find facts.

    In an equity suit the judge should find and state in connected and para-graphic form his findings of fact and conclusions of law. Failure to do so is a plain disregard of Equity Rule 62.

      Corporations — Water companies — Boroughs—Exclusive right in streets.

    A water company incorporated since the passage of the Act of June 2, 1887, P. L. 31Ó, is not possessed of any exclusive privilege in the use of the streets of a municipality in the absence of an agreement between the company and the municipality to that effect. The mere grant by the municipality to the company of the right to enter upon streets and lay pipes cannot be construed into an agreement to give the company an exclusive right to the streets, so as to prevent the municipality from subsequently installing a water system of its own.
    Argued Oct. 9, 1906.
    Appeal, No. 49, Oct. T., 1906, by plaintiff, from decree of C. P. Cambria Co., Dec. T., 1904, No. 5, dismissing bill in equity in case of The Hastings Water Company v. The Borough of Hastings and A. C. Strittmatter, A. T. Strittmatter and Paul Strittmatter, trading as Strittmatter Brothers, and Joseph O. Hahn and B. F. Hewitt, trading as Hahn & Hewitt.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    O’Connor, J., filed the following opinion:
    The Hastings Water Company, a corporation, chartered since the act of 1887, at present and during the past has been furnishing water to certain residents and individuals in the borough' of Hastings, Cambria county. No water was being furnished at the instance of, or under contract with, £he municipality, the borough of Hastings, by tifie plaintiff water company, and some months since the defendant municipality proceeded to erect its own waterworks. A bill in equity was filed in this court to No. 5, December term, 1904, by which it was sought to restrain the defendant borough from the erection and operation of the municipal water plant or works, alleging the plaintiff’s rights of its incorporation and by virtue of arrangement or agreement with the borough of Hastings relative to the streets of the said borough for the laying of pipes conveying water to the various residents thereon and alleging further that said rights,- thus acquired, gave to the plaintiff an exclusive privilege to furnish water to the inhabitants, etc., of the borough of Hastings and to the streets of the said borough for that purpose.
    To this bill the defendants filed an answer, denying the allegation of the plaintiffs that they had exclusive right to furnish water to the inhabitants of the borough of Hastings, and May 23, 1905, was fixed for hearing. Upon that date the cause came on to be heard, Evans, Leech & Evans, Stevens & Pascoe, Esqrs., appearing for the plaintiff, and Roland, Kittell & Greevy, Esqrs., appearing for the defendants.
    As matter of law we' are firmly of the opinion that, under its charter, The Hastings Water Company has no exclusive privilege to furnish water to the inhabitants, etc., of the borough of Hastings, and that, as a matter of fact, there is nothing whatever in the testimony which would warrant a finding that it had obtained such rights by reason of any contract, express or implied, with the defendant municipality. Having entirely failed to convince this court that, as matter of law or as matter of fact it was entitled to the exclusive privilege of furnishing water for the purposes expressed in its charter, within the territory covered by that charter, to wit: the borough of Hastings, we are obliged to refuse the prayer contained in said bill.
    And now, June 23, 1905, the injunction prayed for in the complainant’s bill, filed to the above number and term of this court, is refused, and the bill is dismissed at the costs of the plaintiff. _
    To all the foregoing findings of law and of fact and the decision of the court, counsel for plaintiff except and pray that said exception be noted, allowed, bill sealed, all of which is accordingly done June 23, 1905.
    The court subsequently entered the following decree.
    Now, October 25, 1905, exceptions overruled, and motion of plaintiff to change the decree and to enter decree in favor of the plaintiff is overruled.

      Errors assigned were the decree of the court.

      A. A. Stevens, with him W. L. Hascoe, for appellant.
    The power of the borough of Hastings to supply water to itself and its inhabitants was exhausted and it had no authority to erect or construct a municipal water plant: White v. Meadville, 177 Pa. 643; Metzger v. Beaver Falls, 178 Pa. 1; Wilson v. Rochester Borough, 180 Pa. 509; Tyrone Gas & Water Co. v. Tyrone Borough, 195 Pa. 566; Nelson v. Warren Borough, 200 Pa. 504; Bennett Water Co. v. Millvale Borough, 200 Pa. 613; DuBois Borough v. DuBois City Water Works Co., 176 Pa. 430.

      Harvey Roland, with him M. D. Kittell, for appellees.
    Where a company has no exclusive privileges, and where there is no contractual relation between the company and the municipality, for a supply of water to the municipality, the latter has still the right to build its own waterworks; and the bare permission by the municipality to the company to lay water pipes has never been held to prevent the erection of municipal waterworks: Centre Hall Water Co. v. Borough of Centre Hall, et al., 186 Pa. 74; Boyertown Water Co. v. Boyertown Borough, 200 Pa. 394; Philipsburg Water Co. v. Philipsburg Borough, 203 Pa. 562.
    January 7,1907 :
    The plaintiff’ company, having been incorporated December 3, 1891, after the passage of the Act of June 2, 1887, P. L. 310, taking away the exclusive privileges of water companies, has' never had the exclusive right or privilege to supply water in the borough of Hastings: Luzerne Water Company v. Toby Creek Water Company, 148 Pa. 568; Boyertown Water Company v. Boyertown Borough, 200 Pa. 394.
   Opinion by

Mb.. Justice Potter,

The Hastings Water Company filed this bill in equity against the borough of Hastings, for the purpose of enjoining the borough from negotiating its bonds, and to prevent the erection and operation by the borough of its own system of waterworks. After hearing the evidence upon the part of the plaintiff only, the court below refused an injunction and dismissed the bill. The judge did not, however, formulate or file any findings of fact and law, as he should have done under the requirements of Equity Rule 62. In the opinion which he filed, the facts and the law are not found separately, but are confused and are not so stated as to afford any proper aid to this court in the consideration of the case.

It seems necessary to again call attention to the correct method of procedure in such cases, as it was pointed out in Pittsburg Stove & Range Co. v. Pennsylvania Stove Co., 208 Pa. 37, where it is said: “ The practice of the learned trial judge in stating his findings of fact and conclusions of law is not in accordance with good equity practice. While the judge is required to answer specifically requests for findings of both fact and law, he should also find and state in connected and paragraphic form his findings of fact and conclusions of law. As said by the court in Schmidt v. Baizley, 184 Pa. 527, it is the usual practice in cases of this character for the court to express its findings in separate and numbered clauses so as to present each one independently and distinctly.” As we also said, in Jones v. Weir, 213 Pa. 135, when the court below makes no findings of fact, there is nothing of record to sustain its decree. “ This is a plain disregard of the equity rules,” and, if we are to consider the merits of the case, obliges us to “ make the findings of fact for ourselves, and thus assume the duties of the court of first instance.” In the present case it does not appear that any requests for findings, either of fact or law, were presented to the court, but Equity Rules 63, 66 provide that, upon the filing of the judge’s findings, the .prothonotary shall enter a decree nisi in accordance therewith, and give notice to the parties or their counsel. Exceptions may be filed within ten days, and if no exceptions are filed within that time, a final decree is to be entered by the prothonotary as of course. Where exceptions are filed, the court, upon sustaining or dismissing them, shall confirm, modify or change the decree accordingly.

The decree which was first entered in this case was not a decree nisi, but was in the form of a final decree. Nor does it appear that this decree was ever formally confirmed; for the last order on the record, under date of October 25,1905, merely overrules plaintiff’s exceptions, and a motion to change the decree, which had been entered.

From an examination of the evidence, we find the following facts : The borough of Hastings was incorporated December 4, 1889, under the General Borough Law of April 3, 1851, P. L. 320. The Hastings Water Company, the plaintiff in this case, was incorporated December 3, 1891, under the General Corporation Act of April 29, 1874, P. L. 73 and its supplements, and the letters patent were recorded in Cambria county, February 5,1892. But the application for the charter was not recorded until June 17, 1904.

Prior to the incorporation of the water company, the borough, on August 6, 1891, granted to an unincorporated association known as The Hastings Water Supply Company, which was afterwards merged in the present plaintiff corporation, “ the privilege of laying water pipes within the borough limits ”; but this grant was coupled with notice, that the borough claimed “ the right to lay their water pipes, or any kind of pipes, at any time, parallel, in, under, over, or to cross the said water supply company’s lines.”

The water company constructed a reservoir and laid supply pipes in the borough in a small way at first, spending about 18,000. In the year 1894 a sale of the water company’s plant to the borough was agreed upon and confirmed by ordinance, but subsequently, at the request of the company, it was released by the borough council from the agreement.

Then upon September 28, 1894, the borough adopted an ordinance by which the water company was given the right “ to enter at any time upon any of the streets, lanes or alleys of the borough of Hastings for the purpose of excavating, digging trenches and laying pipes and mains and to do all such other acts as may be necessary for the proper conveying of water for the use of the public in the borough of Hastings.” After the passage of this ordinance, the water company expended an additional sum of $8,000 in improving and extending its plant. In 1897 another attempt was made by the borough to purchase the plant of the water company, but it was not successful.

In the early part of the year 1904, the borough authorized a loan for the purpose of erecting its own waterworks, to furnish- “ an adequate supply of water for fire protection and other public purposes and for the use of the inhabitants,” and entered into contracts for the erection of the works.

The Hastings Water Company, having been incorporated since the passage of the Act of June 2, 1887, P. L. 810, is not possessed of any exclusive privilege: Luzerne Water Co. v. Toby Creek Water Co., 148 Pa. 568; Boyertown Water Co. v. Boyertown Boro., 200 Pa. 394. Unless, therefore, some agreement is shown by which the hands of the borough are tied, its right to build its own waterworks cannot be questioned. No express contract has been shown, nor are we able to see anything in the evidence from which a contract can be implied. It is certainly not to be found in the resolution of August 6,1891, authorizing the water company, then unincorporated, to lay water pipes within the borough- limits, for this permission was accompanied by the direct assertion of the right of the borough to lay its own water pipes at any time, parallel with, under or over the lines of the water company. Neither does the ordinance of a later date, known as Ordinance No. 18, establish any contract whatever. It merely grants permission to enter upon the streets and lay pipes, and perform such acts as may be necessary for the proper conveyance of water for the use of the public. Why should the fact that the borough granted to the water company the favor of .using the streets, be held in itself, to imply any obligation to grant to the water company an ex-elusive right to furnish water to the people of the borough ? This would be to make the bestowal of one privilege, ground for demanding another.

In considering a claim of exclusive right, under a similar ordinance, which was setup by a sewage company, in Olyphant Sewage-Drainage Co. v. Olyphant Boro., 211 Pa. 526, our Brother Elkin said: “ It would do violence to every rule of construction to hold that a permission granted by a municipality to a private corporation to use its streets for certain purposes constitutes a contract so as to make the borough liable in damages in case a loss should result to the private corporation by reason of the installation of a rival system. . . . The naked grant of permission to use streets to lay pipes confers no exclusive right.”

It is admitted by counsel for appellant that there is no express contract between the borough and the water company, and our examination of the evidence has not disclosed anything which warrants the finding of an implied contract for service, which prevents the borough from erecting and maintaining its own system of waterworks. The bill was therefore properly dismissed.

The assignments of error are overruled, and the decree of the court below is affirmed at the cost of appellant.


author: Per Curiam,

text:
    Dickey, Appellant, v. Norris.

      Equity — Equity practice — Findings of fact — Conclusions of law.

    The judge in equity cases should find the facts and state his conclusions of law distinctly and affirmatively in his own order and his own way. He may adopt and use the language of requests by either party. It is not only convenient and a saving of labor to do so, but frequently conduces to accuracy of detail where the evidence is voluminous or conflicting. But when he does this he should adopt the findings fully and explicitly as his own in such manner as to leave no room for doubt that they are his independent judicial conclusions. Requests not so adopted, if requiring answer ex majore cautela, should be affirmed or refused separately so as to avoid all possibility of confusion with his own findings on what he considers the relevant and material points of the case.

      Equity — Deed—Rescission—Findings of fact — Review.
    On an appeal from a decree refusing to rescind a deed alleged to have been procured by undue influence, the Supreme Court will not review the findings of fact of the lower court based on sufficient evidence, to the effect that the deed was executed voluntarily, with full knowledge of its effect, and for a good consideration; that there was a valid delivery; and that there was no fraud or undue influence in the making or delivery.
    Argued Oct. 15, 1906.
    Appeal, No. 99, Oct. T., 1906, by plaintiff, from decree of C. P. Lawrence Co., March T., 1905, No. 2, dismissing bill in equity in case of Thomas W. Dickey, Executor of the Estate of Jane Roberts, deceased, v. Judson O. Norris, Elmer P. Norris and Sarah J. Patterson.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Bill in equity to rescind a deed. Before Porter, P. J.
    From the record it appeared that the deed in question was executed on October 9, 1902, by Jane Roberts, an old and illiterate woman, to three of her grandchildren. The deed was recorded on January 27, 1904. The court found, inter alia, as follows :
    1. The deed in question was made for a good and valuable consideration.
    2.. The recording of the deed was in law a good delivery thereof to the defendants.
    3. There is no evidence of any fraud, accident or mistake in the making, executing or delivery of the deed.
    4. There is no testimony in this case sufficient to warrant' the court in making the decree prayed for and under all the evidence the bill should be dismissed.
    The consideration mentioned in the deed in question is $1.00 and love and affection, and the deed is under seal. The consideration is both good and valuable. A valuable consideration , is money or its equivalent — anything capable of being measured by a money standard. An inadequate valuable consideration in itself is not sufficient grounds to warrant the court in decreeing a reconveyance. A good consideration is love and affection or the like and has no pecuniary measure or value.
    The deed having been executed for a good and valuable consideration, was it delivered ? That it was recorded in compliance with the explicit and positive direction of the plaintiff is clearly shown by the testimony of David N. Keast, who was very careful in caring for the interest of Jane Roberts. And in order that she might fully understand and comprehend the effect of recording the deed Mr. Keast explained the effect to her, and after the explanation she still insisted that it be taken to the court house, and we have no doubt she intended it to be recorded so that the matter would be fixed and she could not change it. The testimony shows further that Mr. Keast did not take the deed to the court house immediately, but held it more than a year after its execution; and that while he held it more than once she requested him to take it to the court house; and the further fact should not be overlooked that all this was done by Mrs. Roberts against the advice of her attorney, Mr. Keast, and the protests of one of the beneficiaries, Judson C. Norris, and without any influence being brought to bear upon her in favor of her conduct by any of the beneficiaries. Yet she, uninfluenced and unsolicited, directs the deed to be taken to the court house; which phrase, “ taken to the court house,” we believe, in view of the explanations made to her by her attorney, Mr. Keast, was understood by her to mean that it should be recorded. And if the deed was directed to be placed on record by her with a full understanding and comprehension of the legal effect of recording it, then when she directed it to be recorded she directed it to be delivered, for the legal effect of recording the deed would be that it is prima facie evidence of delivery: Bush v. Genther, 6 Del. County Rep. 323.
    Delivery is presumed from execution and recording. This cannot be overcome by the declarations of the grantor that-the deed was not delivered: Kern v. Howell, 180 Pa. 315.
    While courts of equity have power to intervene and set aside voluntarily executed deeds and other instruments, yet the power to do so is of an exceedingly delicate character, not to be lightly exercised and only to be invoked when the manifest justice of the case requires it: Simon v. Simon, 163 Pa. 292.
    On page 300 our Supreme Court says : “We are unable to discover in it all any of the elements which are so essential to equitable intervention. There is no evidence, not the least, of any exercise of undue influence in the procurement of the deed.” Applying the language and logic of this case to the one at bar, we should keep in mind, first, Sarah J. Patterson never exercised any influence, and there is no allegation on the part of any witness for the plaintiff to show that Elmer P. Norris ever exercised any influence on Jane Roberts in procuring the making of the deed, nor is there any proof by any witness that Judson C. Norris ever exercised any influence in procuring the deed. If it be true that he was her confidential advisor, this would weigh against the plaintiff when it is remembered that when he learned of her intention to make the deed he protested against its being made to David N. Keast, her attorney, who after frequent solicitation- on her part prepared the deed, notwithstanding he had advised her against doing so. Where a deed is executed without fraud, accident or mistake, and delivered by a father to a son and without any duress or undue influence on the part of the son, the deed will not be set aside in a court of equity: Carney v. Carney, 196 Pa.' 34.
    The same principle applies in this case where a grandmother has, without any fraud, accident or mistake, executed and delivered without any duress or influence to the only grandchildren of her deceased husband a deed for the land which she has obtained by devise from her husband.
    There is nothing in the relation of parent to child or other near relation to preclude one from accepting a benefit from the other in the shape of a gift or of a contract upon more advantageous terms than would have been granted to a stranger, and the fact that such a gift has been conferred or contract made will not warrant an inference that it has been procured by undue influence. Unless there is something suspicious in the circumstances, or the nature or amount of the gift is such that it ought not to have been accepted, even if freely tendered, the donee will not be called upon to show that the transaction was in all respects fair and honest, and in no respect tainted by fraud or undue influence: Worrall’s Appeal, 110 Pa. 349.
    There is nothing in the circumstances connected with the execution or delivery of the deed in this case that taints it with fraud or undue influence. Everything was fair, the plain, tiff herself secured the making of the deed, caused it to be recorded, and the defendants allowed the rents, issues and profits of the property to go to the plaintiff for life without question. The evidence is not sufficient to throw the burden of proof on the defendants.
    The case at bar is stronger in its facts than that of Davidson v.' McCaslin, 85 Pittsb. Legal Journal (N. S.), 291, where in the trial it was argued that the plaintiff was of weak intellect from old age, yet she maintained the suit in her own behalf. In the absence of fraud or undue influence mere weakness of intellect from sickness or old age is no ground for avoiding a deed. It is not necessary that a person about to execute a deed should have sufficient mental capacity to take into connected view the whole of his property. If he understands in detail all his separate items of property, and chooses with understanding and reason between one disposition and another, it is sufficient. Mental capacity to execute a deed does not include the ability to understand the legal effect which lawyers may impart to the words employed. If the nature and effect of the instrument as a conveyance of property is understood, it is sufficient.
    In the case of Moorhead v. Scovel, 210 Pa. 446, the Supreme Court deals at length with the same questions which are involved in this case, and an examination of the facts in that case will show that the grantor had not as full and complete a knowledge of the condition of her estate as had Jane Roberts. And in connection with a discussion of that case it will be observed that Jane Roberts had the deed drawn by her own attorney; that she told him what she wanted done; that he advised her in connection with the matter; that he told her she could not convey the property by will without reserving the right which every person has of revoking it; that she insisted that she wanted to have the property so there would be nothing further done about it, but that the conveyance would be absolute; and after all this explanation and the advice of her attorney, her attorney drew the deed, explained it to her, she executed it and caused it to be recorded. There is no evidence of fraud, accident or mistake, nor is there any evidence of undue influence, nor is the entire matter in any way tainted with unfairness on the part of the defendants.
    That the property left was insured under the policies that were in- existence at the time of the making of the deed is of little importance; nor is it important that the policies afterward written were written in the name of Jane Roberts, when the evidence shows that Elmer P. Norris, who had charge of the matter of insurance, was away from home and before going had turned the matter of the renewal of insurance over to his father, C. P. Norris, who did not know the title to the properties had passed to the defendants and was not informed by Elmer P. Norris, in whose name the policies should be written.
    January 7, 1907 :
    Therefore, after a careful examination of the testimony, we are led to the conclusion that the deed dated October 9,1902, by Jane Roberts to Judson C. Norris, Elmer P. Norris and Sarah Patterson, was executed and delivered for a good and valuable consideration, without any fraud, accident or mistake and without any undue influence, and that at the time of the execution and delivery Jane Roberts fully understood and comprehended the nature and effect of the execution and delivery of the deed. Therefore, in view of this finding the bill in this case should be dismissed.

      Error assigned was the decree of the court dismissing the bill.

      H. K. Gregory, with him T. W. Dickey and W. D. Wallace, for appellant.

      J. Norman Martin, for appellees.
   Per Curiam,

The findings both of fact and of law by the learned judge below are mostly in the form of answers to requests by the plaintiff who was the losing party. This is not good practice as it involves unnecessary labor and not infrequently some doubt on the part of this court to determine how far the findings should be treated as the judicial conclusions of the court below, or as mere acquiescence in views more or less material and relevant presented by one of the parties. The judge in equity cases should find the facts and state his conclusions of law distinctly and affirmatively in his own order and his own way. He may adopt and use the language of requests by either party. It is not only convenient and a saving of labor to do so, but frequently conduces to accuracy of detail Where the evidence is voluminous or conflicting. But when he does this he should adopt the findings fully and explicitly as his own in such manner as to leave no room for doubt that they are his independent judicial conclusions. Requests not so adopted, if requiring answer ex majore cautela, should be affirmed or refused separately so as to avoid all possibility of confusion with his own findings on what he considers the relevant and material points of the case.

This case involves no doubtful questions of law. The only disputable matters are of fact. It was a bill to declare a deed fraudulent and to decree a reconveyance. The grantor was old and. illiterate, and the grantees were her grandchildren, two of whom were consulted by her in many but not all of her business matters for some time previous to the date of the deed, but who may be treated as occupying a fiduciary relation to her. The bill was filed by the grantor more than two years after the date of the deed, and at a time when as found by the court below her memory had become very much impaired. The deed was prepared by the grantor’s attorney at her command, though against his advice, and was delivered by her to him voluntarily and with full comprehension of its effect, but in escrow, “ to be delivered to the grantees or any one of them upon my verbal or written instructions so to do, or in event of my death, without such instructions.” The attorney kept it for more than a year and then was directed by her to “ take it to the court house ” a direction repeated after he had explained that he would have it recorded and that would mean a delivery.

On this outline it is manifest that the case turned on the evidence. The learned judge below found as already indicated, that the deed was executed voluntarily, with full knowledge of its effect, and for a good consideration; that there was a valid delivery; and that there was no fraud or undue influence in the making or delivery. Independent of their force as findings of the court who had the witnesses before him they are clearly in accord with the weight of the evidence.

There was nothing in the ease to sustain the claim that the deed was testamentary in character.

Decree affirmed.

I


author: Mr. Justice Potter,

text:
    Cameron v. Citizens Traction Company, Appellant.
    _ Negligence — Proximate cause — Evidence.
    Whoever does a wrongful act is answerable for all the consequences that may ensue in the ordinary and natural course of events though such consequences be immediately brought about by intervening causes, if such intervening causes were set in motion by the original wrongdoer.

      Negligence — Street railways — Proximate and remote cause — Variance.
    In an action against a street railway company to recover damages for personal injuries, the plaintiff in her statement of claim averred, that while passing along the aisle of a car in search of a vacant seat, she fell into an opening in the floor of the car. At the trial she testified that in proceeding towards the vacant seat her movement was affected by the sudden starting of the car. The statement of claim did not allege any negligence in the starting of the car. Held, (1) that there was not sufficient variance between the statement and the proof to defeat the plaintiff’s action, and (2) that the case was for the jury, and that a verdict and judgment for plaintiff should be sustained.

      Appeals — Assignments of error — Evidence—Rule 31.
    ■ An assignment of error to the admission of evidence which does not refer to the page of a paper-book where the matter may be found, will not be considered.
    Argued Oct. 12, 1906.
    Appeals, Nos. 63 and 64, Oct. T., 1906, by defendant, from judgment of C. P. Venango Co., Jan. T., 1904, No. 26, on verdict for plaintiffs in case of Marion Cameron and Alexander Cameron, her husband, v. Citizens Traction Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Criswell, P. J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    Verdict and judgment for Marion Cameron for $2,900 and for Alexander Cameron $2,600. Defendant appealed.

      Errors assigned were (1) rulings on evidence, quoting the bill of exceptions, but not referring to the page of the paper-book where the matter could be found; (2) refusal of binding instructions for defendant and (3) answer to defendant’s second point, referred to in the opinion of the Supreme Court.

      January 7, 1907:

      William J. Breene, with him Edmond O. Breene, for appellant. —
    The appellees having alleged a certain act of negligence to be the proximate cause of the injuries, were bound to sustain the allegation by proof. The evidence adduced by the appellees, on the trial of the case in the court below, clearly showed another independent act of negligence to be the primary and proximate cause of the injuries, and there being no amendment or offer to amend, the verdict should have been for the appellant: Clark v. Lindsay, 7 Pa. Superior Ct. 43 ; Railroad Co. v. Kelly, 91 Tenn. 699 (20 S. W. Repr. 312) ; Dixon v. Butler Township, 4 Pa. Superior Ct. 333 ; Herr v. Lebanon, 149 Pa. 222; Schaeffer v. Jackson, 150 Pa. 145.

      William M. Parker, with him Judson I). Trax, for appellees.
    —As a general rule the efficient and predominating cause in producing a given event or fact is taken to be the proximate cause though there may be separate, and to a certain extent independent, causes in operation: Hoag v. L. S. & M. S. R. Co., 85 Pa. 293 ; Gudfelder v. R. R. Co., 207 Pa. 629; Cohn v. May, 210 Pa. 615.
    Even if there had been a variance, of which there is not the least evidence, it would not necessarily be ground for a new trial or reversal: Kroegher v. McConway & Torley Co., 149 Pa. 444 ; Kirchner v. Smith, 207 Pa. 431; Chapin v. Cambria Iron Co., 145 Pa. 478.
   Opinion by

Mr. Justice Potter,

On the evening of May 6,1903, the plaintiff, Mrs. Marion Cameron, boarded a car of the defendant company. In the floor of the car was a trap door, used for access to the machinery beneath. When Mrs. Cameron entered the car, this trap door was standing open, but was unobserved by her ; she proceeded towards a vacant seat, and, as the car started, stepped into the opening, sustaining injuries which were the basis of the claim for damages in this case.

The first assignment of error, is to the admission of evidence upon the part of the plaintiff against the objection of the defendant. But the specification violates Rule 31, for the reason that it does not refer to the page of the paper-book where the matter may be found in its regular order in the printed evidence. An assignment which offends in this respect, will not be considered: Fitzgerald v. Illuminating Co., 207 Pa. 118; Gerwig v. Johnston Co., 207 Pa. 585; Hallock v. Lebanon, 215 Pa. 1.

The second assignment of error complains of the refusal by the court, of binding instructions in favor of the defendant. It is admitted that the negligence of the defendant company, and the absence of contributory negligence upon the part of the plaintiff, have -been established by the verdict of the jury. But counsel for appellant contends vigorously that the negligence charged in plaintiff’s statement was permitting the opening to exist in the floor of the car ; while the testimony, it is claimed, showed that the proximate cause of the injuries to the plaintiff was the sudden starting of the car, which threw her into the opening. As the statement did not allege any negligence in starting the car, it is argued that no recovery can be had upon that ground. And, further, that no recovery can be had on the ground set forth in the statement, because the opening in the floor was not the proximate cause of the accident. In reply to this argument, counsel for appellee state that they do not base the charge of negligence upon the starting of the car, but rest it solely upon the fact that the trap door in the floor of the car was left open. Of course the opening could not in itself cause anyone to fall through it. Some propelling force must do that. But this might be the misstep of a moving passenger along the aisle, or it might arise from the sudden jerk of the car in starting. Every car starts with more or less of a jerk, but ordinarily no harm results. In the present case it is contended that, while the sudden start may have, and probably did, accelerate her movements, yet, had there been no opening in the floor, the plaintiff would have sustained no harm, and that the injuries she received were chargeable to the existence of the opening in the floor.

When the defendant company negligently left the trap door open while passengers were entering the car, and after it was in motion, it was answerable for all the consequences that ensued in the natural course of events. An unprotected opening in the floor was dangerous, whether the car was at rest or in motion; and it is no excuse for the company that this danger was increased by its own act in starting the car. The distinction which is attempted to be drawn by counsel for the appellant, between the two acts of negligence, is not warranted; for both were chargeable to the defendant company. “ Whoever does a wrongful act is answerable for all the consequences that may ensue in the ordinary and natural course of events, though such consequences be immediately brought about by intervening causes, if such intervening causes were set in motion by the original wrongdoer.” 1 Thompson on Negligence, sec. 52. Here, the intervening cause, if it may properly be so considered, was the starting of the car. If there was negligence in this, it was that of the original wrongdoer.

In Burrell Twp. v. Uncapher, 117 Pa. 353, the following extract from Shearman & Redfield on Negligence, 3d ed., sec. 10, is quoted and approved: “Negligence, however, may be the proximate cause of an injury of which it is not the sole or immediate cause. If the defendant’s negligence concurred with some other event (other than the plaintiff’s fault) to produce the plaintiff’s injury, so that it clearly appears that but for such negligence the injury would not have happened, and both circumstances are closely connected with the injury in the order of events, the defendant is responsible, even- though his negligent act was not the nearest cause in the order of time.”

As to the alleged variance between the allegation and the proof, the plaintiff did state in her declaration that, while passing along the aisle of the car in search of a vacant seat, she fell into the opening in the floor of the car. Under this allegation, it was proper for her to prove, as explanatory of the accident, that she was affected in her movement by the starting of the car, even though she had not alleged in the declaration just what caused her to make the misstep which culminated in her injury.

The third assignment of error complains that the court below did not affirm without qualification the second point of the defendant, which was to the effect that, if the jury found that the proximate cause of the injury was the sudden starting of the car, the verdict should be for the defendant. The court affirmed this point, but added that “ Upon this subject we refer to the general charge.” An examination of the general charge does not show any instructions on the matter contained in this point, nor any reference to the testimony that the car had been suddenly started, and that Mrs.Cameron had thereby been thrown into the hole. But the trial judge appears to have noticed this omission; for, after the points had all been answered, additional instructions were given, covering the question of proximate cause. This supplement to the charge seems to have been called out by the defendants’ second point, and intended as a further answer to it. It is to the same effect as the point itself, and we see nothing in it of which the appellant can justly complain. The instructions of the court, both in the affirmance of the second point, and in the supplement to the charge, were fully as favorable to appellant as it was entitled to ask.

We see nothing which can be sustained in any of the assignments of error. They are therefore overruled, and the judgment is affirmed.


text:
    Weaver v. Berwind-White Coal Company, Appellant.

      Mines and mining — Coal mining — Surface support — Lease of coal.

    A grant of “all the merchantable coal in and underlying” a specified tract of land, excepting and reserving five acres of coal “underlying the buildings and spring,” with the necessary mining rights to mine and remove the coal does not by necessary implication waive the right of support under all that part of the tract except such as was expressly reserved.

      Mines and mining — Surface support — Damages—Measure of damages.

    The measure of damages for permanent and irremedial injuries to land caused by failure to give surface support is the actual loss in the depreciation of the value thereof. The permanance of the injury is the test for the application of the rule.
    If the injury is reparable the cost of repairing may be recovered, and if the cost of repairing is greater than the diminution in the market value, the latter is the true measure of damages. In all such cases just compensation for the loss sustained by the trespass is what the injured party is entitled to recover. When the injury is permanent, the measure of damages is the difference in market value before and after the injury.
    In a proceeding to assess damages for injuries to land caused by failure to supply proper surface support, it is error to admit testimony showing the value of the springs in themselves, as a separate, independent item not connected with the general value of the land; but the value of the springs as an element in estimating the value of the land, or the destruction of them, in determining the depreciation in the value of the land after the injury, is a proper matter for the consideration of the jury.
    In an action to recover damages for failure to provide surface support, witnesses in their preliminary examination to establish their competency, may be asked as to their familiarity with the fertility of the soil, and the uses for which it was adapted, and if in this manner it is developed that the farm had been well watered with good springs, and that it was especially adapted and used for a dairy and grazing purposes, the defendant has no ground to complain.
    Where the destruction of springs has been occasioned by mining and removing coal which the lessee had a right to remove in the usual course of his mining operation, the owner of the surface has no right to complain; but it is otherwise where the destruction of the springs results from the removal of the pillars which provided surface support, thus causing a subsidence thereof, and breaks in the strata which destroyed the springs. If the evidence is conflicting as to which of the two was the cause of the destruction of the springs, the case is for the jury.
    Argued Oct. 9, 1906.
    Appeal, No. 56, Oot. T., 1906, by-defendant, from judgment of C. P. Cambria Co., Dec. T., 1904, No. 47, on verdict for plaintiff in ease of Abram C. Weaver v. Berwind-White Coal Mining Co..
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for injuries to land alleged to have been caused by failure to provide proper surface support. Before O’Connor, P. J.
    At the trial when plaintiff was on the stand, the following question was asked him:
    “ Q. From your knowledge of the plaintiff’s premises and the depressions of the soil and the effects of such disturbances, what, in your judgment, is the amount of damages he has actually sustained ? ”
    Counsel objects to the testimony sought to be introduced by the question for the reasons:
    First. That it is speculative; second, that it is incompetent; third, that the measure of damages is the actual and real injury to the property; fourth, that the witness admits that he has no sufficient knowledge of this property from which he would be warranted in testifying or making a comparison.
    .■ The Court: The objection is overruled, exception noted, and bill sealed for the defendant company. [6]
    The court refused to strike out similar testimony offered by Silas Fry, Andrew Bourgardner, Levi Weaver and Stephen Hostetler. [7-11]
    Abram Hostetler testified as follows:

      “ Q. You have testified to the condition you found on the premises of the plaintiff before and after the removal of the coal from under the same. I wish you would state what actual damages the plaintiff’s property has sustained by reason thereof, excluding everything in the way of speculative damages for future use of the property and giving merely actual present damages to the property? A. I would say from $15,000 to $20,000.”
    The court refused motion to strike out exception. [4]
    R. L. Watt testified as follows:
    “ Q. From your knowledge of the plaintiff’s premises and the depressions of the soil and the effects of such disturbances, what, in your judgment, is the amount of damages he has actually sustained ? ”
    Counsel objected to the testimony sought to be introduced by the question for the reasons :
    First, that it is speculative; second, that it is incompetent; third, that the measure of damages is the actual and real injury done to the property; fourth, that the witness admits that he has no sufficient knowledge of this property from which he would be warranted in testifying or making a comparison.
    The Court: Objection overruled, exception noted, and bill sealed for the defendant company. [5]
    Plaintiff was further questioned as follows:
    “ Q. State in detail the actual losses you have sustained to your land through the mining operations of the defendant company as carried on under the surface? A. Well, by breaking the surface and having all these dips and kettles, $20,000 would be the damage what was done to the surface and to the water. Just of late we had lots of those depressions. I can’t keep no cows; after the loss of the water I lost every week three pounds of butter each week.”
    On motion the court refused to strike out the answer. Exception. [8]
    “ Q. To what extent had you followed the business of raising cattle and grazing? ”
    Objected to for the reason that it is incompetent and speculative in its character, the measure of damages in this case being the injury sustained and the cost of replacing or repairing that injury.

      The Court: The objection is overruled, an exception noted, and bill sealed for the defendant company. [2]
    “ A. Oh, we raised quite a lot of young cattle and cows, and we had water enough there to water twenty head of horses. I used to have twenty head of horses every winter on that farm and twenty-five head of horned cattle, and now I have five head of horses and haven’t water to water five head of horses without hauling it,' and have seven head of cows. I had to put away all that stock and can’t raise any young cattle on account of that. We had some young cattle last summer and could not sell them to the butcher. I fed them the milk off the other cows just to keep them three head in the stable. I fed them the milk off the cows just on account of hauling water until I got them ready to sell to the butcher and got them away.”
    “ Q. How has your land been affected, if any at all, in respect to its ability to raise and sustain cattle by reason of the injuries occasioned by the mining and removal of the coal? ”
    Objected to as being incompetent, as being speculative in its character, and in addition thereto the prospective profits of which he might be deprived would not be a matter competent to be proven.
    The Court: The objection is overruled, an exception noted, and bill sealed for the defendant company. [1]
    “ A. By the mining of the coal and the breaking of the surface, they took that water that supplied my stock and my cellar was like an icehouse. I never needed ice and I had the water; we had water there as good as ice-cool, and we could make butter; and we had to put away with the stock; we pretty nearly sold all the stock on account of that.”
    Plaintiff presented the following points:
    2. That under the deed of conveyance as made and executed by Abram O. Weaver and wife to Robert H. Sayre, which deed severed the coal strata from the surface land and under which defendant claims the right to mine and remove the coal, it was, and is, the absolute duty of the defendant, in mining and removing said coal, to do so in such manner as not to interfere with or injure the surface land and the estate of the plaintiff. Answer: We have so instructed you and we affirm the point. [12] '

      Defendant presented these points:
    4. It appearing from the deed of conveyance from Abram C. Weaver, the plaintiff, and Mary Ann, his wife, dated March 29, 1898, and recorded in Cambria County in Deed Book, vol. 89, page 109, etc., he sold and conveyed all the merchantable coal underlying the premises described in the plaintiff’s statement of claim, inter alia, to Robert H. Sayre, his heirs and assigns, “ excepting and reserving five acres of the ‘ D ’ bed of coal underlying the buildings and springs,” and it further appearing in said deed of conveyance that the grantors conferred upon the grantee therein named, his heirs and assigns, “the right to mine and carry away all of said coal,” the defendant company, which is now and has been operating or mining and removing said coal have the right to mine and carry away all of said coal without being required to leave in the mine any coal or other artificial pillars to support the superincumbent estate, and that under the clause mentioned granting the right to mine and carry away all of said coal, the defendant company would not be liable in damages by reason of the subsidence of said premises or any part thereof, loss of water in springs, opening of crevices and depressions on the surface, and such being the case, the verdict should be for the defendant company. Answer: Refused. [18]
    9. Even if under the instructions of the court the jury believe that the plaintiff would be entitled to recover damages for injuries sustained, yet as the plaintiff has failed to produce evidence which would enable the jury to properly assess such damages, therefore the plaintiff has failed to make out his case and the verdict must be for the defendant. Answer: Refused. [14]
    8. That under all the evidence in this case there can be no recovery for loss of water. Answer: The eighth point is denied ; it is practically the same as the fourth. [15]
    3. That under all the evidence in this case the verdict should be for the defendant.■ Answer: Refused. [16]
    Verdict and judgment for plaintiff for $6,000. Defendant appealed.

      Errors assigned were (1-11) rulings on evidence; (12-16) above instructions, quoting them.

      David L. Krebs and John K. Evans, of Evans & Evans, for appellant.
    The questions to which the defendant’s counsel objected on the trial of this case, not only of the plaintiff himself, but of various witnesses called by him and covered by the eleven assignments of error, together with the motions to strike out their answers, were based upon the objection that the answers were simply a lumping estimate; the expression of opinion without any fact upon which to base them and which opened the way for witnesses to take into consideration matters which have no place in the adjustment of the damages: Robb v. Carnegie, 145 Pa. 324; Lentz v. Carnegie, 145 Pa. 612.
    The plaintiff had the right to mine and remove all of the coal except that which was distinctly reserved : Jones v. Wagner, 66 Pa. 429 ; Horner v. Watson, 79 Pa. 242; Coleman v. Chadwick, 80 Pa. 81; Coal Co. v. Hopkins, 198 Pa. 343; Scranton v. Phillips, 94 Pa. 15 ; Carlin v. Chappel, 101 Pa. 348; Williams v. Hay, 120 Pa. 485.
    It is a well-settled principle of law in Pennsylvania that the injury to or destruction of surface springs by reason of the mining of minerals, either from adjoining lands or from underneath the surface of the particular lands, is an injury for which the law makes no provision unless it is clearly shown on the part of him who seeks to recover that the mining operations were conducted in a manner that clearly indicates malice or negligence on the part of the defendant: Wheatley v. Baugh, 25 Pa. 528; Haldeman v. Bruckhart, 45 Pa. 514.

      H. S. Endsley, with him Chas. C. Greer, for appellee.
    There was no error in the rulings on evidence: Noonan v. Pardee, 200 Pa. 474 ; O’Donnell v. Lynch, 1 Watts & Sergeant, 283 ; Sergeant v. Ford, 2 Watts & Sergeant, 122; Patterson v. Natural Gas Co., 172 Pa. 554.
    If the owner of the whole fee in land conveys the coal in the land in general terms, retaining the residue of the tract, the purchaser acquires the coal with the right to mine and remove it, provided he does so without injury to the superincumbent estate: Youghiogheny River Coal Co. v. Allegheny Nat. Bank, 211 Pa. 319 ; Noonan v. Pardee, 200 Pa. 474 ; Kistler v. Thompson, 158 Pa. 139.
    The owner of the coal is liable to the owner of the surface if a spring is ruined through failure of the former to properly support the surface, but not when the injury to the spring is caused by mining operations where the surface is supported in its natural condition: Gumbert v. Kilgore, 6 Cent. Rep. 406; Barnes v. Berwind, 3 Pennypaeker, 140.
    January 7, 1907 :
   Opinion by

Mr. Justice Elkin,

This is an action in trespass for failure to provide surface support in the mining of coal. It was conceded at the trial that the appellee had been the owner in fee of the premises on which the damages claimed are alleged to have been done. He sold and conveyed the coal, together with mining rights and privileges to the appellant company. The grant is for “ All the merchantable coal in and underlying all that tract of land,” for which the right of surface support is claimed in this action ; “ excepting and reserving however, from and out of this conveyance five (5) acres of the ‘ D ’ bed of coal underlying the buildings and spring.” ' The usual mining rights are granted in the deed, among which are the following: With the right to mine and cany away all the said coal and with all the mining rights and privileges necessary or convenient to such mining and removal of the same.” The foregoing are the only covenants of the deed with which we have to do in defining the rights of the parties to this controversy. It is important to note that the right of surface support was not expressly waived, and the only question on this branch of the ease is whether there was anything peculiar in the grant, either of the coal, or of the mineral rights, and the reservations therein contained, to take this case out of the general rule uniformly recognized and followed by our courts, which provides that the underlying or mineral estate owes a servitude of sufficient support to the upper or superincumbent strata. This rule is settled law in this state and has never been departed from : Jones v. Wagner, 66 Pa. 429; Horner v. Watson, 79 Pa. 242; Coleman v. Chadwick, 80 Pa. 81; Carlin v. Chappel, 101 Pa. 348; Williams v. Hay, 120 Pa. 485; Youghiogheny River Coal Co. v. Hopkins, 198 Pa. 343; Noonan v. Pardee, 200 Pa. 474; Youghiogheny River Coal Co. v. Allegheny National Bank, 211 Pa. 319. The contention of the learned counsel for appellant that the grant of “ All the merchantable coal ” underlying the premises, together with the necessary mining rights to mine and remove the same by necessary implication waives the right of surface support under all that part of the tract except such as was expressly reserved, cannot prevail in the light of the above authorities. It is now too late to discuss the policy of the law or the wisdom of the rule. The argument is not strengthened by the suggestion that inasmuch as the grantor had conveyed all the merchantable coal, reserving only five acres of the “ D ” seam underlying the buildings and spring, he thereby intended to waive surface support to all that part of the tract not included in the five-acre reservation. If the grantor had conveyed all the coal underlying the entire tract without any reservation, it must be conceded that the owner of the superincumbent strata would be entitled to surface support. The fact that he cut down the grant, reserving five acres for which no compensation was paid and no title conveyed, cannot be construed to mean that appellee is in worse position in so far as his right to surface support is involved, than if the five acres had been included in the grant and compensation received therefor. It is clear that appellee did not by express grant, nor by necessary implication, nor by any covenant contained in the deed of conveyance, waive the right to surface support.

The only question remaining to be considered is whether there was any reversible error in the rulings- of the court below as to the proper measure of damages, or in the admission of testimony relating thereto. The rule is settled that the measui’e of damages for permanent and irremedial injuries to land caused by failure to give surface support is the actual loss in the depreciation of the value thereof. The permanence of the injury is the test for the application of the rule: Noonan v. Pardee, 200 Pa. 474. If the injury is reparable the cost of repairing may be recovered, and if the cost of repairing is greater than the diminution in the market value, the latter is the true measure of damages. In all such cases just compensation for the loss sustained by the trespass is what the injured party is entitled to recover. When the injury is permanent, the measure of damages is the difference in market value before and after the injury: Vanderslice v. Philadelphia, 103 Pa. 102; Fulmer v. Williams, 122 Pa. 191; Williams v. Fulmer, 151 Pa. 405 ; Thompson v. Traction Co., 181 Pa. 131. In the case at bar tbe principal injury complained of, was tbe destruc-, tion of the springs of water, although subsidence in the surface and disturbance of the buildings entered into the elements of damage claimed. The case was tried before the opinion in Rabe v. Shoenberger Coal Co., 213 Pa. 252, was handed down, so that neither the court nor the counsel had the guidance of that decision in the trial of the cause. We held in that case that it was error to admit testimony showing the value of the. springs in themselves, as a separate, independent item, not, connected with the general value of the land. It. was said, however, and it is the rule in such cases, that the value of the springs as an element in estimating the value of the land, or. the destruction of them, in determining the depreciation in the value of the land after the injury is a proper matter for the consideration of the jury. The value of the springs can only be considered as incidental to and affecting the value of the land. On the whole we think the testimony produced on the part of the plaintiff came fairly within this rule. It was directed to the point of showing the actual loss to the owners by reason of injury to the surface, loss of the springs, and damage to the buildings. In this respect the rule in Noonan v. Pardee, 200 Pa. 474, was followed. It may be conceded that some of the testimony relating to the springs is open to the objection that the value was fixed as a separate item, but this was brought out on cross-examination and was insisted upon throughout the trial by the learned counsel for appellant, as the proper measure of damages, and since it has not been assigned for error it is too late to raise the question here.

The first eleven assignments of error relate- to the competency of the testimony of certain witnesses in fixing the depreciation in the value of the land in what is termed a lump sum. In order to establish the competency of the witnesses to express an opinion as to the depreciation in the value of the land on account of the injuries complained of, they were asked as to their familiarity with the fertility of the soil, the uses for which it was adapted and other preliminary questions of a like character. In this manner it was developed that the farm had been well watered with good spnngs and that it was especially adapted and used for dairy and grazing purposes. It is objected that testimony of this kind is speculative in character and should not have been admitted in ascertaining the value of their property. It must not be overlooked, however, that the witnesses did not undertake to speculate on the loss to the owner of the property by reason of the inability to continue the uses to which the property had been put prior to the injury. All of these questions were asked as preliminary in order to show the competency of the witnesses to testify as to the amount of damage sustained. In this we see' no reversible error.

The fifteenth assignment of error broadly raises the question of the right of the appellee to recover any damages for the loss of the springs of water under the facts of this case. In support of this contention the rule of law is invoked, that injury to or destruction of surface water, or springs, by reason of the mining of coal, or other minerals, either from adjoining lands or from underneath the surface of the particular land, when the mining is done in a competent and workmanlike manner, is damnum absque injuria. It is true the law makes no provision for compensation to the owner of the surface for damages in such cases, unless it is clearly shown on the part of him who seeks to recover that the injury was done in a manner indicating malice or negligence on the part of the operator. This rule cannot be questioned in the ordinary grant of coal, where surface support is waived nor as we understand it is it denied in this case. It means that the operator has a right to mine and remove the coal in a proper manner according to the approved methods of mining without liability for such injuries as may incidentally result to the superincumbent strata. This rule, however, must be read and understood in the light of the facts in any particular case. In the case at bar if there had been no subsidence of the surface, no disturbance of the super-incumbent strata by reason of the mining and removal of all the coal underlying the same; or if it appeared as a fact that the springs were not destroyed by reason of the failure to provide surface support, there could be no recovery. This is the pinch of the case. The learned counsel for appellant contends that the uncontradicted testimony of the expert witnesses showed that the mining of the coal when sufficient surface support is provided, would cause the springs to disappear, and argues that the springs were not destroyed by reason of the subsidence of the surface, or bréales in the intervening strata, but was the natural result of the ruining operation. If this were true in fact, or if these facts were not controverted, it would be an end of the case. It would then be clear that the failure to provide surface support did not cause the injury to the springs, but this was a controverted question of fact at the trial and many witnesses were examined in reference to it, there being a diversity of opinion among them on the question. It was submitted to the jury in a well-considered and careful charge by the learned trial judge, in which the law as applied to the facts of the case was correctly stated. Under the testimony it was a question for the jury to determine whether the destruction of the springs had been occasioned by mining and removing the coal which the appellant had the right to remove in the usual course of its mining operations, or whether it resulted from the removal of the pillars which provided surface support, thus causing a subsidence thereof and breaks in the strata which destroyed the springs. The learned court carefully explained the law to the jury on this question and we fail to discover any error in the instructions. What we have already said is a sufficient answer to the last assignment of error which raises the question as to the inadequacy of the charge. This assignment is not sustained.

Assignments of error overruled and judgment affirmed.