text:
    Delaware and Atlantic Telegraph and Telephone Company's Petition.

      Boroughs■ — Municipalities—Telegraph and telephone companies — License tax — Inspection—Costs of inspection — Act of April 17, 1905, P. L. 183.
    1. Under the Act of April 17, 1905, P. L. 183, relating to license fees imposed by municipalities upon public service corporations which have poles, wires, conduits or cables in the public streets, the court, in determining the amount of the annual license fees that may be properly charged, is controlled by the cost of inspection and regulation to the municipality. If there be no inspection or supervision by the municipality there can be no license fee imposed, because under such circumstances no expense will be incurred for which the statute makes the company liable. Under the act no flat per pole or per mile charge can be made applicable throughout the commonwealth, because in no two cases will the cost of inspection be the same.
    2. In the exercise of their police powers, municipalities may require poles to be kept in proper condition and wires in safe repair and may see to it that the conduits and other appliances do not interfere with the public use of the street. For these purposes they may provide reasonable inspection and regulation, and impose the cost thereof on the companies.

      3. A borough imposed upon a telegraph and telephone company-annual license fees which were fixed at $1.00 per pole, $2.50 per mile of wire or cable, and $30.00 per mile of conduit. The court below in proceedings under the Act of April 17, 1905, P. L. 183, found as a fact that the rates were reasonable, and entered a decree accordingly. The Superior Court reduced the fees and found that the amount paid by the company in question and other public service companies aggregated a sum which was about three times the sum paid to the borough’s single policeman during the year for inspection duties. It also appeared that after a conduit was laid and the ground had settled, that the in- • spection of the conduit was little more than perfunctory. It was also shown that very little time was needed in making an effective inspection of the pole line, and that for several years after a new construction there was but little to apprehend from the natural decay of material. It also was shown that the different companies made frequent inspections of their own. Held, that the amount of license fees as reduced by the Superior Court should be sustained under the facts of this case, but that the proper rule to guide the courts in every such case under the act of 1905 is the cost of necessary inspection.
    Argued Feb. 9, 1909.
    Appeals, Nos. 345 and 346, Jan. T., 1909, by The Delaware and Atlantic Telegraph and Telephone Company and by the Borough of Sharon Hill, from order of the Superior Court, Oct. T., 1907, No. 189, modifying decree of C. P. Delaware Co., March T., 1906, No. 172, in Petition of The Delaware and Atlantic Telegraph and Telephone Company.
    Before Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from the Superior Court.
    Head, J., filed the opinion of the Superior Court which was as follows:
    The Act of April 17,1905, P. L. 183, provides that where any dispute shall arise between a municipality and any telegraph, telephone, light or power company as to the amount of a license fee named in any ordinance for the inspection and regulation, under the police power of such municipality, of the poles, wires, conduits or cables of such company, either party may apply by petition to the court of common pleas of the proper county, to determine the said dispute. After providing the process to bring the other party into court, and for pleadings to raise the issues of fact out of which the dispute has arisen, the act directs that it shall be heard and determined “in the way and manner provided by law for the hearing of cases in equity.” The act then provides in sec. 4, that “ either party shall have the right of appeal from the order of the court, to the Supreme or Superior Court, as in other cases.”
    The present proceeding resulted in a decree, entered by the learned court below, that the annual license fees fixed in the ordinances of the borough of Sharon Hill, to wit: $1.00 per pole, $2.50 per mile of wire or cable, and $30.00 per mile of conduit, were properly collectible under the evidence produced, and from that decree this appeal is taken.
    Is such appeal but a substitute for the common-law writ of certiorari? If so, our functions are limited to an inspection of the record and a determination whether or not the court had jurisdiction, and the proceedings were regular. If the legislature intended the appeal to be of this limited character it would not have been necessary that the right to take it should have been expressly granted. But as the right of appeal has been in terms granted and as the act, in a previous section, had declared that the cause should be determined “in the way and manner provided by law for the hearing of cases in equity,” we are disposed to hold that this appeal, like one from the decree in an ordinary case in equity, brings before us the entire record made up by the exceptions filed to the conclusions of law and fact adopted by the learned trial court.
    In such a case it has been well settled that the findings of fact adopted by the trial judge, when the ascertainment of such facts involves the balancing of conflicting testimony, the credibility of witnesses, etc., will be regarded by the appellate court as if established by the verdict of a jury. Where, however, such findings are but conclusions or inferences drawn from testimony that is practically undisputed, it becomes our duty to examine the evidence and determine for ourselves whether or not the findings are warranted by it.
    The learned court below was not called upon, in this proceeding, to exercise the power possessed by the courts long before the passage of the act now under consideration, viz.: to set aside an ordinance because it was unreasonable, oppressive and arbitrary, resulting from an abuse of the powers of the municipality. The object of this proceeding was simply to determine, from the evidence produced, “the amount of annual license fees which should be paid to the said municipal corporation in order to properly compensate it for the necessary cost of the services performed, or to be performed, by it, for the inspection and regulation of the poles, wires, conduits or cables, of the said telegraph” or other “company.”
    The dispute in the present case arose out of the fact that the borough of Sharon Hill claimed the right to levy, from the petitioner and other corporations of its class operating in the borough, annual license fees based on these rates, viz.: $1.00 for each pole erected; $2.50 for each mile of wire strung thereon, and $30.00 per mile for each mile of conduit laid under its streets. Each of these companies, before beginning the work of construction, was obliged to apply for and obtain a permit, for which a charge of $5.00 was made, and to execute and deliver to the borough a bond with satisfactory security conditioned that any streets or sidewalks affected by such construction should be restored to proper condition and maintained in good order thereafter.
    The petitioner itself has constructed in the borough, two and one-fifth miles of conduit, 15.15 miles of wire and ten poles, so that its annual license fee would amount to $113.88. As there was some common use, by the several companies there operating, of portions of property severally owned, the learned court found that all of the annual fees claimed would be, in addition
    to the petitioner’s............................... $113 88
    Suburban Gas Company:
    4.3 miles pipe........................... $129 00
    Springfield Water Company:
    4.4 miles pipe........................... $132 00
    Citizens’ Light Company:
    175 poles........................ $175 00
    10 miles wire.................... 25 00
    ~ $200 00
    Amount carried forward............... $574 88

      Amount carried forward............ $574 88
    Western Union Telegraph Company:
    36 poles......................... $ 36 00
    27 miles wire.................... 67 50
    $103 50
    Chester Traction Company:
    42 poles......................... $ 42 00
    5 miles wire...................... 12 50
    $ 54 50
    Total................... $732 88
    It was shown that the borough had committed to its single policeman, the duty of inspecting the poles, wires and conduits of the several companies and for this service paid him a salary of $20.00 per month, or about one-third the amount of the annual license fees, levied to compensate it for the services performed in the “inspection and regulation” contemplated by the act. It was not alleged or proven by the borough that the inspection thus given was not fully up to any municipal requirement, that it was not adequately compensated in the amount paid the policeman, or that a proper inspection sufficient to enable the borough to discharge every duty it owed to its citizens in the premises could not have been had even for less money.
    On the contrary, the testimony offered by the petitioner, which was uncontradicted, tended to prove that when a conduit has been laid under ground, when the frosts of the winter and the thaws of the spring have once come and gone, and the overlying surface has been then adjusted to the new conditions, all surface indications marking even the location of the buried conduit will have practically disappeared and inspection of the line thereafter could at best be but little more than perfunctory. It would seem, therefore, that an annual charge of $30.00 per mile would go far beyond the compensation contemplated by the act.
    As to the pole and wire structure the evidence would fairly lead to the conclusion that for a period of years after new construction there is but little to apprehend from the natural decay of the material. But such a structure is plainly subject to injury from external causes, high winds, heavy snows and the like, and therefore might properly be inspected several times each year by a careful municipality. But both poles and wires may be inspected at the same time, and it is manifest from the testimony that no great amount of time need be spent in making an effective inspection of a pole line. The borough, too, has the benefit of the frequent inspections made by the companies themselves whose business cannot be transacted unless their lines are maintained in efficient working order. The borough is of course not required to accept these inspections as conclusive and may properly supplement them by its own. But the fact that they are made by competent men and with the end of maintaining the lines in standard condition ought not to be lost sight of in a proceeding like the present.
    We are not unmindful, on the one hand,, that the object of inspection is the regulation that is to follow, and that reports must be made and so kept that their information is available for the use of councils; whilst, on the other hand, the courts have repeatedly declared that a municipality may not, under the guise of license fees, levy and collect revenue to be expended in the discharge of municipal obligations: Kittanning Boro. v. Telegraph Co., 26 Pa. Superior Ct. 346; Pottsville Boro. v. Pottsville Gas. Co., 33 Pa. Superior Ct. 480.
    Realizing the difficulty of arriving at the exact sum which a borough should properly undertake to collect, as license fees, from companies like the petitioner, the legislature has wisely provided that the question should be subject to a readjudication at the end of two years. Thus, accumulating experience will beget increased knowledge, serious disputes will more rarely arise and their adjustment will become more easy and accurate.
    After endeavoring to give due weight to all of the evidence contained, in the record and an attentive consideration to the aim and object of the statute, we have reached the conclusion that the decree entered by the learned court below, should be so modified as to make the maximum sum which the borough shall be authorized to charge as license fees against the petitioner, $10.00 per mile for each mile of conduit; $1.50 per mile for each mile of wire, and fifty cents for each pole, and the record is remitted to the court below with direction to enter a decree in accordance with this order. The costs of this appeal to be paid by the respondent, the borough of Sharon Hill.

      Error assigned was the judgment of the Superior Court.

      William I. Schaffer and John G. Johnson, for appellant, Delaware and Atlantic Telegraph and Telephone Company. —
    The probable expense of inspection is the only thing which a municipality can take into account in fixing license taxes: Schellsburg v. Western Union Tel. Co., 26 Pa. Superior Ct. 343.
    One of the purposes in laying underground conduits is to do away with dangerous and unsightly poles. Notwithstanding the endeavor of the appellant to do away with poles, the borough in this case has levied upon its conduits a tax about equal to that heretofore levied on its poles, because there are about thirty poles in a mile. The reason for the inspection of poles certainly does not exist with reference to the inspection of conduits.
    Some of the cases passed upon by the lower courts and the license taxes fixed are as follows: Postal Tel. Cable Co. v. Hollidaysburg Boro., 17 Pa. Dist. Rep. 298, pole tax, twenty cents (C. P. Blair County); Pennsylvania Tel. Co. v. Gaysport Borough, 17 Dist. Rep. 300, pole tax, twenty-five cents (C. P. Blair County); Curwensville Boro. v. Huntingdon, etc., Tel. Co., 16 Dist. Rep. 602, pole tax, ten cents (C. P. Clearfield County); Penna. Tel. Co. v. South Bethlehem Boro., 16 Dist. Rep. 878, pole tax, ten cents (C. P. Northampton County); Carlisle v. United Tel., etc., Co., 15 Pa. Dist. Rep. 193, pole tax, ten cents (C. P. Cumberland County ); Consolidated Tel. Co. v. Easton, 16 Pa. Dist. Rep. 887, pole tax, ten cents (C. P. Northampton County); wire tax, fifty cents per pole mile instead of wire mile.
    It is manifest that the sum fixed by the borough to be paid its police officer for inspection is a mere arbitrary amount, that the sum does not represent the probable and justifiable expense which it is under as a result of the occupation of its highways by the various public utility companies, and that if it is put to any expense at all, the expense is of a most trifling character. -
    March 8, 1909:

      Edward P. Bliss, for appellant, Sharon Hill Borough. —
    The charge of $1.00 per pole and $2.50 per mile of wire has been declared reasonable in Allentown v. Western Union Tel. Co., 148 Pa. 117; Chester v. Western Union Tel. Co., 154 Pa. 464; Phila. v. American Union Tel. Co., 167 Pa. 406; New Hope Boro. v. Postal Tel. Co., 202 Pa. 532; Taylor Boro. v. Postal Tel. Co., 202 Pa. 583; Ridley Park Boro. v. Electric Light, etc., Co., 9 Pa. Superior Ct. 615; Boro, of North Braddock v. Telegraph Co., 11 Pa. Superior Ct. 24; Kittanning Electric Light, etc., Co. v. Kittanning Boro., 11 Pa. Superior Ct. 31; New Hope Boro. v. Telegraph Co., 16 Pa. Superior Ct 306; Taylor Boro, v. Postal Tel. Co., 16 Pa. Superior Ct. 344; Kittanning Boro, v. Telegraph Co., 26 Pa. Superior Ct. 346.
    The fee of $30.00 per mile of underground conduit has been upheld in Kittanning Boro. v. Gas Co., 219 Pa. 250; Kittanning Boro. v. Gas Co., 26 Pa. Superior Ct. 355; Kittanning v. Garretts Run Gas Co., 35 Pa. Superior Ct. 167; Kittanning v. Water Co., 35 Pa. Superior Ct. 174.
    There is no substantial difference between the rule enforced in the cases above cited, that the fees must be reasonable, and the direction in the act of 1905, that the court shall determine the amount to be paid to the municipality to properly compensate it for the necessary cost of the inspections, etc.
    The character, frequency and extent of the inspection are within the discretion of the municipal authorities and their discretion will not be interfered with by the court unless it is shown to have been abused: Beach on Public Corporations, sec. 942, note; Dillon on Municipal Corporations, sec. 698a, note; Taylor Boro. v. Postal Tel. Co., 202 Pa. 583; Kittanning Boro, v. Gas Co., 26 Pa. Superior Ct. 355.
   Opinion by

Mr. Justice Elkin,

For many years controversies growing out of the imposition of license fees or taxes have arisen between public service corporations and the municipalities in which they do business. A large number of such cases have been considered by our appellate courts, and the rules of law heretofore applicable thereto may be found in repeated decisions of the Supreme Court from Allentown v. Western Union Tel. Company, 148 Pa. 117, to Kittanning Boro. v. Gas Company, 219 Pa. 250, and of the Superior Court from Ridley Park Boro. v. Electric Light, etc., Company, 9 Pa. Superior Ct. 615, to Kittanning Boro. v. Water Company, 35 Pa. Superior Ct. 174. These cases are all founded upon ordinances passed prior to the act of 1905, and while they were actions at law they were considered as if upon certiorari to determine the legal rights of the parties and without reference to the statutory proceedings authorized by said act. The right to impose these license fees was sustained as a police power, but it was uniformly pointed out that general revenue for the support of the municipal government could not be raised under the guise of a license tax for police regulation. This principle has been recognized in every case, and in no instance has it been suggested that it might be modified or varied or weakened in its application. It is true that under the old forms of action it was often difficult for an appellate court to pass upon questions of fact necessary to determine whether a particular ordinance under consideration did impose a revenue tax or a license fee. Because of this limitation upon the courts the practice became quite general throughout the commonwealth to establish flat rates per pole, per mile or per car as the case might be, upon an arbitrary basis and without reference to the cost of police inspection or supervision. An examination of the cases will show that the municipalities were given a wide latitude in the imposition of these license charges and their right to do so was not interfered with unless for gross abuse. This was the situation when the act of 1905 was passed, and this legislation grew out of the unsatisfactory methods then existing for the determination of such controversies. The purpose of the act is stated to be the providing of a method for the determination by the courts of common pleas, with the right of appeal, of all disputes between municipalities and telegraph, telephone, light and power companies, relating to the reasonableness' of the amount of license fees. In the third section of the act the duty is imposed upon the court hearing the cause to determine the amount of the annual license fees necessary to properly compensate the municipality for the cost of the services performed, or to be performed, by it for the inspection and regulation of the poles, wires, conduits or cables belonging to such public service corporations and located within the limits of the municipality. This is a statutory rule binding upon the courts. The amount of the license fees to be charged is measured by the cost of the service performed or to be performed during the year for municipal inspection and regulation. If there be no inspection or supervision by the municipality there can be no license fee imposed, because under such circumstances no expense would be incurred for which the statute makes the companies liable. If there be inspection and supervision, the measure of liability imposed by the act is the cost of the same to the municipality. The cost of the service is the rule adopted by the legislature to guide the courts in determining the disputes between the parties. This rule cannot be ignored or lightly set aside, and it should be the central and controlling thought in the mind of the court in the determination of such disputes. Of course, when the ordinance is passed in advance of any service rendered it may and no doubt will be difficult to fix with mathematical precision the amount of the license fee before the cost of the service is definitely known, and some reasonable allowance must necessarily be made for contingencies that may happen. However, the courts should see to it that under the guise of a reasonable allowance the municipality is not permitted to impose a tax for general municipal purposes, or to disregard the rule which limits the license fee to the cost of inspection. Under this rule no flat per pole or per mile charge can be made applicable throughout the commonwealth, because in no two cases will the cost of inspection be the same. Many boroughs do not inspect at all, and in such cases no license fee can be charged. Other boroughs may require very little inspection, while others may need more, but in each instance the inquiry must be, what is the cost? The legislature fixed the rule and imposed the duty to determine all such controversies according- to that rule upon the courts when proper preceedings are instituted. The rule is imperative and cannot be disregarded.

Another question raised by this appeal is whether the borough authorities in the present case were justified in making any provision for inspection and regulation. It is contended that the inspection by the companies was ample and sufficient to protect the public, and that no municipal inspection was. necessary. It is true that the courts have held companies furnishing electricity or operating by electrical forces to the very highest degree of care by way of inspection and maintenance. It is meet and right to do so, because of the great danger to the public having to deal with such agencies. The duty of inspection and maintenance imposed by law upon these companies can be more safely relied on as a protection to the public than the casual and indifferent inspection made by a borough officer without any technical knowledge of the business. There are many things, however, which the borough may properly do by way of police regulation. It can require the poles to be kept in proper condition, the wires in safe repair, and see to it that the conduits and other appliances do not interfere with the public use of the streets. Reasonable latitude must be allowed the municipalities in dealing with this subject, but on the other hand they should not be permitted to make useless and unnecessary inspections at the cost of the operating companies. This is also a question for the courts to determine in a proceeding instituted under the Act of April 17, 1905, P. L. 183. In the case at bar we think the borough was justified in requiring the inspection directed by the ordinance, and hence the only question for determination is as to the amount of the license fee imposed. The learned judge of the court of common pleas treated the question upon the theory that the borough ordinance should be sustained on the presumption that it was reasonable without reference to whether it was based upon the cost of inspection or not. In this we think there was error. "When the petition was filed under the act of 1905, the proceedings were de novo, and it was the duty of the court to hear and determine the questions involved upon the pleadings, having due regard for the weight of the evidence. The Superior Court on appeal took up the question and did modify the decree entered in the court below by fixing the amount of the license fees upon the basis of the cost of inspection, although there may be some doubt as to the strict application of the rule in arriving at the proper amount to be charged. The case was very intelligently considered by the learned judge who wrote the opinion and since the amount involved in this particular case is small, no useful purpose can be served by prolonging the controversy. The per pole and per mile license fee charged in this case cannot be taken as a precedent on which to base charges in other municipalities throughout the commonwealth, because each case must depend upon its own facts and in every case the cost of inspection must be the measure of liability.

Decree affirmed and record remitted to the court below with instructions to enter judgment in favor of the borough of Sharon Hill for the amount of the license fees as fixed by the Superior Court.

The costs on the appeal to this court to be paid by appellant and all other costs to be paid as directed by the decree of the Superior Court.


source: Caselaw Access Project

author: Mr. Justice Brown, Mr. Justice Elkin,

license: Public Domain

text:
    Llewellyn, Appellant, v. Sunnyside Coal Company.

      Equity — Title to land — Ejectment bill — Deed.
    Where a person takes title to land by a deed with knowledge that his grantor had previously sold the land to another by articles of agreement, and that the purchaser under such articles is in possession, the grantee’s remedy to determine his title and right to possession is by an action of ejectment, and not by a bill in equity
    Elkin and Potter JJ., dissent.
    Argued Oct. 6, 1908.
    Appeal, No. 206, Oct. T., 1908, by plaintiff, from decree of C. P. Cambria Co., March T., 1908, No. 4, dismissing bill in equity in case of D. J. Llewellyn v. Sunnyside Coal Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart JJ.
    Affirmed.

      March 15, 1909:
    Bill in equity for an injunction. Before O’Connor, P. J. The opinion of the Supreme Court states the case.

      Error assigned was decree dismissing the bill.

      H. W. Storey, for appellant.

      F. P. Martin, with him Forest Rose and Percy Allen Rose, for appellee.
   Opinion by

Mr. Justice Brown,

This controversy in a court of equity is over the title to land. The first averment of the complainant in his bill is that he is the owner of it in fee, under a deed to him from Jane C. Yeagley, dated November 12, 1907. Following this there is an admission that in June, 1905, more than two years before, Mrs. Yeagley, through her representative, accepted the offer of Daniel Cauffiel, under whom the appellee claims, to purchase the property for $8,000, and upon the acceptance of the offer, that Cauffiel paid $100 on account of the purchase money, for which a receipt was given to him in the following form:

“Johnstown, Pa., June 18, 1905.

“Received from Daniel Cauffiel One Hundred Dollars as a payment on land and leases sold to said Daniel Cauffiel as per agreement.

“Jos. H. Berlin,

“Attorney in Fact for Mrs. J. C. Yeagley.”

On June 20, 1905, two days after the receipt was given, Mrs. Yeagley executed and tendered a deed to Cauffiel, who refused to accept it for the reason that it did not include all he had purchased. Thereupon the agent of Mrs. Yeagley offered to return to Cauffiel what had been paid on account, but the offer was. refused. True, there is an averment that Cauffiel attempted to purchase the property from Mrs. Yeagley for the purpose of defrauding plaintiff, but this was immaterial upon the question before the court below as to whether or not Cauffiel had purchased the property. On or about May 1, 1906, the appellee took possession of the land, the allegation being that it did so without claim of right, either in law or equity, to possession or the right of possession. It did so, however, as successor to whatever title Cauffiel might have had. This situation, as gathered from the bill itself, is that of one claiming to be the owner of land not in his possession, but in the possession of another, against whom the claimant seeks equitable relief by a mandatory injunction. As thus presented by the bill itself, equity clearly had no jurisdiction. “When the complainant himself avers that his right is denied, and when that denial is the very ground of his complaint, it would be a novelty, indeed, for a court of equity to assume jurisdiction:” North Pennsylvania Coal Co. v. Snowden, 42 Pa. 488.

Turning to the answer, there is a distinct averment that on or about June 16, 1905, Cauffiel, in an honest and legitimate manner, sent his representative to J. H. Berlin, who was acting as the duly authorized 'attorney in fact of Jane C. Yeagley, and purchased the land in dispute; that the said J. H. Berlin, acting with authority from Jane C. Yeagley, agreed to sell the property on the terms set forth in the articles of agreement, a copy of which the appellant attached to his bill, and received $100 on account of the purchase money. A further averment is that neither Cauffiel nor his representative committed any act with fraudulent intent to secure possession of the property; that the appellee is the successor to the right vested in Cauffiel to the property, and that in pursuance of said right it entered into possession of the premises and continues in possession of them by virtue of said right. It is too clear to require elaboration that this is a mere ejectment bill, and as the case hinges upon a disputed legal title, that title must be first settled in an action of law: Duncan et al. v. Hollidaysburg, etc., Iron Works, 136 Pa. 478; Saunders v. Racquet Club, 170 Pa. 265.

When the appellant took title from Mrs. Yeagley in 1907 he knew the appellee was in possession of the land under Cauffiel, who claimed an equitable title to it under an agreement made in June, 1905, with the appellant’s grantor. He therefore took title subject to any equitable estate that may have vested in Cauffiel: Riel v. Gannon, 161 Pa. 289; Brodhead v. Reinbold, 200 Pa. 618.

In an action of ejectment Cauffiel’s equitable title may not be established; on the other hand, it may be, and, if so, what could a chancellor then say in justification of a decree now made driving the appellee from the premises and commanding it to remove the improvements which it has erected thereon? The learned court below was compelled to say: “Until the question of title is settled, this court has no jurisdiction to grant the relief for which the complainant prays in his bill.”

Nothing said in Llewellyn v. Cauffiel, 215 Pa. 23, has any application to the fundamental question raised in this proceeding. All that was there decided, was that a right of way, which the partnership of Llewellyn & Yeagley acquired from Mrs. Yeagley, one of the partners, was not being interfered with by Cauffiel. That partnership was not in existence when this bill was filed and the right of way is not in this case. Forty-four assignments of error fail to cloud the real situation. They are all overruled and the decree below is affirmed at appellant’s costs.

Decree affirmed.

Mr. Justice Elkin,

dissenting:

For every wrong willfully committed there should be a legal remedy. The records of this and the former case show that grievous wrong has been done appellant, and although for four years he has stood upon his legal rights, stoutly defending his title and possession on the premises or in the courts, he is now told that equity is not his remedy, try an action at law. With this view of the case I do not agree. When this litigation started in 1905 appellant and his partner were in the undisputed ownership and possession of a coal lease with mining privileges, a tramway running over a triangular piece of land belonging to the partner but set apart for the use of the partnership, a tipple for loading coal on the cars, a railroad siding, and were doing a legitimate and profitable business. They had been engaged in this business for about fifteen years when Cauffiel, the predecessor in title of the appellee company, having acquired the right to mine coal on an adjoining property lying back of the operation conducted by appellant, undertook to force his way to the railroad siding over the intervening land in the possession of appellant for the partnership and belonging to the partner, without any lawful right to invade that property. Cauffiel began the construction of a trestle or tramway from a point on the hill where the new opening was being made and extending in the direction of the railroad siding and over the intervening land which did not belong to him. When this overhead construction was about to be erected on and over the intervening triangular piece of land without the consent of the owner or those in possession, appellant filed a bill in equity seeking to restrain the unlawful invasion. This bill was filed in the name and for the benefit of the partnership. It averred title and possession and how held; set forth the facts relied on to show the threatened invasion; stated the injuries that would result from such invasion, including interference with the use of tipple, a railroad siding and triangular piece of land to such an extent as to cripple and perhaps destroy the operation of the complainant’s property. An answer was filed admitting the threatened invasion but denying any intention to interfere with the tipple or railroad siding or the use of the triangular piece of land by complainant. The right to construct the tramway over the property in question was asserted under a so-called agreement to purchase the triangular piece of ground from the partner of appellant who held the legal title. This agreement in the nature of a receipt for a small amount of money on account of land and leases not described nor defined in any way, and the right to acquire title thereunder having either been voluntarily abandoned, or the purchase having been refused after tender of deed, did not at the time nor did it at any time since give to Cauffiel or his successor in the coal business any legal right to the title or the possession of the land in question which justified the appropriation by force of a right of way upon which to construct an overhead tramroad. This so-called assertion of title under an attempted purchase never completed and long ago abandoned by refusal to accept a deed when tendered may very properly be termed a fiction of this case without substantial merit, but up to this time sufficient to protect the wrongdoer. At the first hearing this position was practically-conceded by the learned court below sitting as a chancellor who put his conclusion upon the ground that Cauffiel was treated as a stranger to the title, but held appellant could not restrain the invasion because the outstanding legal title was in the partner and not in the partnership. In other words, the partner having the legal title could have enjoined the threatened invasion but the partnership could not. On appeal to this court the conclusion reached by the court below was sustained and as the matter then stood that proceeding was at an end. It must not be overlooked, however, that both in the court below and here, it was then pointed out that in the answer filed by Cauffiel it was averred that there was no intention to interfere with the tipple or railroad siding or the operation of the plant represented by complainant and that because the legal title to the land in question was not in the partnership, equity would not interfere to protect against injuries not intended and parties not holding the legal title. In that case, Brother Mestrezat in writing the opinion, among other things, said: “The right of plaintiffs to an injunction does not depend on whether the defendant has title to the land but whether the plaintiffs have title or the right to the possession of it.” See Llewellyn v. Cauffiel, 215 Pa. 23, 30. This can only mean that the decision in that case rested upon the ground not that the defendant had any title to the land or the right to construct a tramway over it, but that plaintiffs had not shown such a clear title, or right of possession as would justify a court of equity to interfere by injunction. Thus the case stood when that litigation ended. Llewellyn subsequently purchased from Mrs. Yeagley, his partner, the title to the triangular piece of ground together with all her interest in the partnership. He then had the absolute title to the land in question and succeeded in his individual right to all the property and assets of the partnership. In the meantime, Cauffiel, or the appellee company, his successor in the coal business, completed the tramway over the triangular piece of land, built a tipple, got possession of a siding and practically drove appellant out of business. In fact they did all the things which in his answer to the former bill in equity Cauffiel averred he had no intention of doing. On the other hand, all those threatened injuries which appellant averred in the first bill filed have since resulted. Appellant having acquired the legal title to the property filed a second bill, and this is proceeding now under consideration, in which all of these things are averred, including the averment of title, and asked for a mandatory injunction in order that he might enjoy the use and possession of his own property. When this case came on for hearing in the court below appellant offered proof in support of every averment showing title, right of possession, wrongful invasion, supplemented by a specific offer to prove that appellee had no title to the triangular piece of land, that it had abandoned its claim to purchase the title under the receipt referred to in the opinion of this court, by refusing to pay the purchase price and accept the deed when tendered, and that subsequently he, appellant, had purchased the legal title to the triangular piece of land and all interests of his partner, and was the sole owner. The offers were refused by the learned court below on the ground that all these questions had been passed on by this court in the former case and that the ruling in that proceeding was decisive in the one at bar. As I view the case this was clear error. In the former case appellant was denied equitable relief on the ground that he did not show title in himself but in his partner, Mrs. Yeagley, and therefore had failed to establish that clear legal right which is the foundation of ever, proceeding in equity. In the present proceeding he supplied what this court said was lacking in the former one, that is, he averred and offered to prove legal title in himself and no title or right of possession in appellee. If he had done so in the first proceeding no one would seriously question his right to an injunction, and certainly having supplied in a proper manner and for a legitimate purpose the missing links in his chain of title he is now entitled to the protection he could then have demanded except for the technical reason then given but which no longer exists. Of course, he can now bring an action of ejectment to determine his title about which there is not and cannot be any substantial dispute, and when this is determined he can recover the possession of his property violently taken from him as well as damages suffered by the wrongful appropriation thereof by appellee, but to my mind this is placing the burden on the wrong shoulders by requiring a person in the ownership or possession of property for fifteen years during which time a prosperous business had been conducted, to first establish in an action at law all the incidents of title and ownership before equity will relieve against the trespasses of a wrongdoer. As against a trespasser without title, possession alone is sufficient to sustain a bill for injunction. This case is somewhat anomalous. Appellant has the title to the land in question, and did have and still should have the right to the use of it, together with the tramway, tipple and railroad siding now torn up without his consent, for the purpose of operating his plant and conducting his business. The appellee by taking possession of a certain portion of the triangular piece of land, the title to which it never acquired but which is in appellant, has constructed a tramway and made a connection between its mines and the railroad siding and for several years has conducted its operation over the property of appellant to his great injury, resulting in the partial or total destruction of his business, and after four years of struggle to maintain his property rights, a court of equity says to him, “ you must begin all over again.” In other words, possession having been taken by a subterfuge, it can now be maintained by a fiction. I cannot agree that this is either right or just. It is a fundamental principle of government, a sacred right of property, guaranteed by constitutions, protected by statutes, and declared by courts in every jurisdiction in which the spirit and purpose of the Anglo-Saxon race prevail, that every owner of the soil, no matter how humble or great, has the legal right to the use and enjoyment of his own property, and to the protection of the law in defending his possession against all the world intruding without right.

For these reasons, I would reverse the decree and remit the record for further hearing with instructions to admit the proof offered in evidence, and if the averments are sustained by the proofs, the relief prayed for should be granted by compelling the removal of the overhead tramway, and all other obstructions or property, wrongfully constructed by appellee, or its predecessor in title, upon the land of appellant, and would enjoin all interference with the right to use and enjoy his own property in every lawful manner.

Potter, J., concurs in this dissent.


author: Me. Justice Mesteezat,

text:
    John Hancock Ice Company, Appellant, v. Perkiomen Railroad Company.

      Negligence — Railroad companies — Sparks—Presumption—Evidence— Case for jury.

    1. In an. action against a railroad company to recover damages for loss by fire, no presumption of negligence arises simply from the fact that the defendant’s locomotive communicated fire to the plaintiff’s premises. The plaintiff must go further and show by evidence, direct or circumstantial, not only that the sparks from the defendant’s engine communicated the fire to his building, but that they were emitted by reason of the defendant’s negligence. When such evidence has been introduced and the court holds it sufficient to go to the jury for the purpose of showing negligence, it is not a presumption of law that the defendant is called upon to meet but affirmative evidence showing the defendant’s negligence. This can only be met by other evidence, and when such is introduced for the purpose, there is a conflict of evidence, and that necessarily sends the case to the jury.
    2. In an action against a railroad company to recover damages for the destruction of a building by fire, the plaintiff introduced evidence which tended to show that the building was fired from a spark or sparks emitted from a particular engine; that the engine labored very hard, and emitted much smoke when it started with its load on an up grade siding; that the day was windy and the smoke blew over the roof where the fire started; that immediately before and after the fire large sparks or pieces of live cinder were emitted from the stack of the engine; that there was no other source of fire anywhere in the vicinity, and that there was no stove nor fire in the building. The defendant offered expert witnesses who testified that the spark arrester was of the most approved form and pattern, and of the kind in general use, and that it was entirely efficient for the purpose. The trial judge withdrew the question from the jury as to whether the spark arrester was or was not of the proper form and pattern, and of the kind in general use, and was or was not efficient for the purpose, and merely left it to the jury to determine whether the spark arrester was out of repair, and whether the engine was carefully and properly operated at the time the building was fired. Held, that it was reversible error for the court to withdraw from the jury the question as to whether the spark arrester was of proper form and pattern, and efficient for the purpose for which it was used.
    Argued Feb. 2, 1909.
    Appeal, No. 12, Jan. T., 1909, by plaintiff, from judgment of C. P. Montgomery Co., March T., 1908, No. 6, on verdict for defendant in case of John Hancock Ice Company v. Perkiomen Railroad Company.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Reversed.
    Trespass to recover damages for the destruction of an ice house by fire. Before Swartz, P. J.
    The facts are stated in the opinion of the Supreme Court.
    At the trial the court charged in part as follows:
    [I charge you, under' this evidence, that you cannot find that this spark arrester was not of the proper style or character so as to comply with the requirements of the law. I listened carefully to the arguments of counsel, and to this evidence, and it is my, duty to give you the law as I understand it. So far as I recall this testimony — and I have considered it carefully — there is no witness who has condemned this spark arrester as not being of the proper style, or make, or form, or pattern, but the men of knowledge and experience in the business come upon the stand, and they tell you, from their knowledge and experience, they adjudged it in their opinion to be a safe or proper spark arrester; that it is as good as any that could take its place for the fuel that is to be used in the fire box. This spark arrester also has been in use for some years. You have heard the testimony. There is no one here that says it is not a spark arrester of the style or type that is efficient for the purposes for which it is placed into the engine. Therefore, I cannot allow you, who are not experienced in this business, to say that the men who have made this a study, or who have examined this style of spark arrester, I cannot allow you to overrule them and say that this is an inefficient spark arrester so far as the design and pattern are concerned. And you will take the law from the court.] [1]
    [Now we come to the testimony of Mrs. Fleger, the only other testimony upon this question of seeing sparks upon other days. Here also I caution you to dismiss from your minds everything that was said about the throwing of sparks, as long as six weeks after this fire, because that is too long a period. You will take the law from the court. The Supreme Court does not allow any such extended period as that. It does allow a reasonable period, at or about the time of the fire, a short time before, or a short time after, because that is the only way perhaps that the plaintiff would have any means of giving evidence as to the character of that engine, or as .to the condition of the spark arrester. But the law will not allow us to go six weeks away from the fire. Therefore, you will dismiss anything that was said about May 13.] [2]
    [Inasmuch as it is alleged that a particular engine caused the injury complained of, the inquiry is limited to the condition of that engine at the time, and evidence as to that particular engine upon another occasion six weeks later or of other engines unidentified, is irrelevant and cannot be considered by the jury.] [3]
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1-3) above instructions, quoting them.

      Nicholas H. Larzelere, with him Harold B. Beitler, for appellant.' —
    The instruction contained in the portion of charge first assigned was erroneous: Lehigh Coal & Nav. Co. v. Evans, 176 Pa. 28; L. & B. R. R. Co. v. Doak, 52 Pa. 379; Frankford & Bristol Turnpike Co. v. R. R. Co., 54 Pa. 345; Huyett v. R. R. Co., 23 Pa. 373; Kane v. Philadelphia, 196 Pa. 502; Matthews v. R. R. Co. 18 Pa. Superior Ct. 10; Phila. 4 Reading R. R. Co. v. Kerst, 2 Walker, 480; Rauch v. Smedley, 208 Pa. 175; Wessel v. Steel Co., 28 Pa. Superior Ct. 332; Penna. R. R. Co. v. Barnett, 59 Pa. 259; Johnson v. Bruner, 61 Pa. 58.

      Montgomery Evans, with him John M. Dettra, for appellee.—
    There is a presumption that the railroad company did its duty in. supplying a proper spark arrester to its engine: Patterson v. R. R. Co., 210 Pa. 47; R. R. Co. v. Ritchie, 102 Pa. 425; Howard Express Co. v. Wile, 64 Pa. 201; R. R. Co. v. Heil, 5 W. N. C. 91; Titus v. R. R. Co., 136 Pa. 618; McGregor v. Penna. R. R. Co., 212 Pa. 482; Marsh v. R. R. Co., 206 Pa. 558; Holden v R. R. Co., 169 Pa. 1; Unger v. R. R. Co., 217 Pa. 106; Wade v. R. R. Co., 220 Pa. 578; Lonzer v. R. R. Co., 196 Pa. 610; Longenecker v. R. R. Co., 105 Pa. 328; R. R. Co. v. Stinger, 78 Pa. 219; R. R. Co. v. McElwee, 67 Pa. 311.
    March 15, 1909:
   Opinion by

Me. Justice Mesteezat,

The plaintiff owned a large ice house along Perkiomen Creek in Montgomery county, Pennsylvania. The defendant company’s tracks were located not far from the ice house in front of, and near which the company run a siding. About noon on March 30, 1907, defendant’s engine 846 ran into the siding to pull out five loaded cars. The grade of the siding was steep at the starting point, and in starting with its load the engine labored very hard and emitted large volumes of smoke. About ten or fifteen minutes after the engine had started with the load, the roof of the ice house was discovered on fire which resulted in the destruction of the house and its contents. The loss was about $35,000. This action was brought to recover damages for the loss, the plaintiff alleging it was caused by the negligence of the defendant company. There was a verdict for the defendant, and judgment having been entered thereon the plaintiff has taken this appeal. The appellant complains in its first and second assignments of error in the charge, and in its third assignment of error in answer to' the defendant’s second point for charge.

It was claimed on the part of the plaintiff company in support of its allegation of negligence that the house was fired from a spark or sparks emitted from engine 846, that the spark was discharged by reason of an inefficient form or device of spark arrester, or by reason of the arrester being out of repair, or by the improper or negligent operation of the engine. In support of its contention the plaintiff introduced evidence to show that the engine labored very hard and emitted much smoke when it started with its load on the up grade siding; that the day was windy and the smoke blew over the roof where the fire started; that immediately before and after the fire large sparks or pieces of live cinder were emitted from the stack of engine 846; that there was no other source of fire anywhere in that vicinity, and that there was no stove or fire in the building. This evidence was sufficient to send the case to the jury on the question of whether the fire from the engine had been communicated to the house: Philadelphia & Reading Railroad Company v. Hendrickson, 80 Pa. 182; Henderson v. Philadelphia & Reading R. R. Co., 144 Pa. 461. And the court properly held that it was also sufficient for submission to the jury on the question of the defendant’s negligence: Philadelphia & Reading R. R. Co. v. Schultz, 93 Pa. 341; Van Steuben v. Central R. R. Co., 178 Pa. 367. The court in its charge said: "When the plaintiff shows facts and circumstances which show that this spark arrester is allowing larger sparks to escape than ought to escape, they having fire or heat or warmth sufficient to burn in them, or throws them out a greater distance, and of greater size than it ought to throw them, and has done that at one time or another time, or several times, then there is evidence before you to consider upon the question of negligence.” The learned judge then points out the evidence produced by the plaintiff which justified the submission of the case to the jury. He also called attention to the evidence on the-part of the defendant contradictory of the plaintiff’s evidence tending to show negligence on the part of the company.

In the charge, the court submitted to the jury to determine whether the sparks were emitted from the engine and fire communicated thereby to the building by reason of the spark arrester being out of repair and in an improper condition, or by the improper or negligent operation of the engine. The learned judge instructed the jury, however, that there was no evidence to show that the spark arrester was not of the proper style, form or pattern, and was not efficient for -the purpose for which it was placed in the engine, and withdrew that question from the jury. This is the subject of the first assignment, and raises the important and material question in the case.

We agree with the learned judge that the witnesses on the part of the defendant testified that the spark arrester on engine 846 was of the most approved style and pattern in use on freight engines for the fuel used in it. The several witnesses on the part of the defendant who testified in substantiation of that fact were all men of experience in that line and were skilled in the construction and use of spark arresters. If their testimony is credible there can be little doubt, in the absence of contradictory evidence, that the spark arrester on engine 846 was of a proper type and pattern, the one in general use and efficient for the purpose. As the learned judge said: “There is no witness who has condemned the spark arrester as not being of the proper style, or make, or form, or pattern.” The engine was constructed for the use of hard coal and at the time of the fire hard coal was being used in it with a very small proportion of soft coal. The hard coal was what is known as buckwheat in the anthracite region, which is a fine coal. Such small percentage of soft coal is mixed with the fine hard coal, as testified by the witnesses, in order to prevent clinkers forming on the grates which will occur if the fine buckwheat anthracite coal is used exclusively.'

The evidence shows that the use of the vertical screen is not desirable and is impracticable where the engine is operated exclusively by soft coal. The reason is because the tar in the soft coal thrown against the screen and close to the flues will adhere to the screen and close up the meshes, preventing the draft of the engine and thereby disabling it. It should be noted, however, that no witness testified that when soft coal is used as a fuel more sparks or larger ones are emitted by a vertical than by a horizontal arrester. On the contrary, the witnesses testified that the vertical screen is just as efficient in preventing the discharge of sparks, both in quantity and size, from the stack of the engine as the horizontal with the deflecting plate. The use of the horizontal instead of the vertical arrester when soft coal is used as the fuel is, as suggested above, to avoid’ the closing of the interstices by the tar which comes from the soft coal, and which results in disabling the engine by preventing a draft.

There was not a particle of evidence in the case to show that a three-eighths inch mesh was the screen in use on engine 846 at the time of the fire; on the other hand, the uncontradicted evidence was that it was a five-sixteenths mesh, and that that is a proper size mesh in a spark arrester used on a freight engine where the fuel is hard coal mixed with a small proportion of soft coal.

Without discussing the question further we are satisfied that the learned judge was entirely correct in declaring that the testimony, on the part of the defendant, if credible, showed that the spark arrester in use on engine 846 was of a proper design and pattern and one in general use on engines of this character.

Conceding the court was correct in its view of the effect of the defendant’s testimony, did it commit error in withdrawing from the jury the question whether the spark arrester on engine 846 was efficient in design and pattern, and “as good as any that could take its place for the fuel that is to be used in the fire box?” We think this question must be answered in the affirmative. It is unquestionably true that in certain cases it is the duty of the court to declare as matter of law the establishment of a proposition supported by the uncontradicted and credible testimony in the case, but it is equally true, and we have time and again so held, that where there is conflicting evidence, or where the credibility of the witnesses is involved, the question is one for the jury and not for the court. In withdrawing the question from the jury, the learned judge misapprehended the state of the case as well as the evidence which had been offered and admitted at the time he made the ruling.

The negligence of the defendant could arise in either or all of three different ways: (a) from an inefficient style or pattern of spark arrester; (b) from a proper spark arrester which was out of repair; or (c) from the negligent operation of the engine. Sparks might have been discharged from the stack of the engine from either or all of these three causes. When the learned judge ruled the question, the plaintiff had shown, not by a presumption of law arising from the fact that the building had been fired by sparks from the engine, but by affirmative evidence that through the negligence of the defendant sparks had been emitted which set fire to the plaintiff’s building and caused its destruction. This evidence, as we have seen, consisted, inter alia, in the action of the engine when it started with its load on the heavy grade siding, the direction of the wind, the emission from the stack of the engine just before and after the fire of sparks or live cinders too large to be emitted from an engine stack having a properly equipped spark arrester. The evidence was sufficient in the opinion of the court to send the case to the .jury to determine the negligence of the defendant. When the plaintiff company had produced this evidence it had met the burden imposed upon it, which was to show negligence as the basis of its cause of action without which it could not recover. If the plaintiff’s evidence was credible, was believed by the jury, the sparks which fired the plaintiff’s building had been emitted by reason of the negligent conduct of the defendant company in one or all of the three ways we have suggested. Had the case then gone to the jury without any testimony on the part of the defendant it must have found, under the view of the trial court, that the defendant was negligent.

The defense interposed was that the spark arrester was of the most approved form and pattern and of the kind in general use; that it was entirely efficient for the purpose; that it was not out of repair but in good condition; and that the engine was operated in a careful and proper manner. The burden was upon the defendant company to sustain these propositions by evidence that would satisfy the jury. It assumed the burden and produced evidence from which the jury would have been warranted in finding, not only that the spark arrester was of proper form and design, but that it was not out of repair, and that the engine was carefully operated. The testimony introduced by the defendant to sustain these propositions was equally conclusive as to each of them. The learned judge, however, permitted the jury to consider and determine only two of the three propositions: (a) whether the spark arrester was out of repair and in an inefficient condition, and (b) whether the company’s employees were carefully and properly operating the engine at the time the building was fired. The other question the court withdrew from the jury and declared as matter of law that men of knowledge and experience in the business had testified that the spark arrester was “as good as any that could take its place for the fuel that is to be used in the fire box,” and that there was no evidence that it was not of proper form and design. For a like reason, consistency required the learned judge to make a similar ruling on the other two questions and direct a verdict for the defendant. He overlooked the decisive fact that the plaintiff had offered evidence, which he correctly held to be sufficient, to show negligence on the part of the defendant company in not equipping engine 846 with a spark arrester efficient in form and design. If, as testified by the plaintiff’s witnesses, the stack emitted sparks that were larger than should come through a properly constructed spark arrester, that of itself was affirmative evidence that the arrester was not of a proper form and design and had not been properly constructed. To meet that evidence the defendant introduced its expert witnesses and they testified that-the appliance was efficient in form and design. Here then was evidence against evidence, and the question was, therefore, for the jury. If there had been no evidence on the part of the plaintiff from which the jury could have found that the appliance was not of proper design, then the only evidence in the case on the subject would have been that of the defendant’s expert witnesses, and had it stood uncontradicted and the witnesses been credible, the court might have withdrawn the question from the jury. But here, there was positive evidence from -which a jury could find that the design of the appliance in use was not sufficient and the evidence to sustain the contrary view was that of witnesses whose credibility was for a jury. It is apparent, therefore, we think, that as the record stood at the close of the trial, the learned judge.erred in deciding the question of the efficiency of the design of the spark arrester. We do not agree with the learned counsel for the appellee that the binding instruction amounted to nothing more in real effect than telling the jury that where there is uncontradicted evidence as to a certain matter in the case, it is their duty, if they believe the evidence, to be governed by it.” That is frequently done and is what the learned court below should have done in this case. Here, there was no witness who testified that the spark arrester was not in proper form, and to that extent the evidence of the defendant’s experts was uncontradicted; but there was other evidence in the case, facts, as held by the trial court, which would have warranted the jury in finding against the testimony, of the defendant’s experts and that the spark arrester was insufficient in form and design for the purpose for which it was intended.

The learned counsel for the appellee has cited Spaulding v. Railway Company, 33 Wis. 582, and several cases from other jurisdictions to sustain the court below in giving binding instructions in its favor. He evidently fails to distinguish the principle decided in those cases from the one which is applicable and must be enforced in determining the question in the present case. In the several jurisdictions in which the cases cited arose, it is held or is declared by statute that a presumption of negligence arises'when property is set on fire by sparks emitted from a locomotive. In the Spaulding and other cases cited by the learned counsel it is held that such presumption is not one of fact but one of law, that it is not evidential, and that where there is no conflicting evidence and the testimony is clear and satisfactory against the presumption it is the duty of the court to hold, as matter of law, that the presumption is overcome. It is conceded, however, in those cases, that where there is a conflict of testimony the jury must determine what facts are proved. In an extended note to Continental Insurance Company v. Chicago and Northwestern Railway Company, 5 L. R. A. (N. S.) 99, a very recent Minnesota case, this question is discussed and all the cases on the subject are collected. In this note it is said: “Even those courts that go farthest in holding that, under the circumstances above stated, the question is for the court, and not for the jury, expressly or impliedly concede that, under any of the following conditions, the question is for the jury, and not for the court: (1) When the plaintiff’s prima facie case is aided by evidence, circumstantial or otherwise, pointing to negligence on the part of the defendant; (2) when the defendant’s evidence does not cover every fact essential to exonerate it from the charge of negligence, e. g., when such evidence, although showing that the engine was properly equipped, does not show that it was properly operated; (3) when the evidence, even though it purports to cover the entire ground, is inclusive in character, and, even if believed, is not necessarily inconsistent with a finding that the defendant was negligent.”

In this state, however, the presumption of negligence does not arise simply from the fact that the defendant’s locomotive has communicated fire to the plaintiff’s premises. The plaintiff must go further and show by evidence, direct or circumstantial, not only that the sparks from the defendant’s engine communicated the fire to his building, but that they were emitted by reason of the defendant’s negligence. The basis of the action in such cases is negligence, and the burden of establishing it is upon the plaintiff. He cannot rely upon a presumption, as in the states already referred to where that doctrine prevails, but he must introduce evidence, direct or circumstantial, from which the jury may find that the defendant company’s negligence caused the fire. When, therefore, such evidence is introduced and the court holds it sufficient to go to the jury for the purpose of showing negligence, it is not a presumption of law that the defendant is called upon to meet, but affirmative evidence showing the defendant’s negligence. This can only be met by other evidence, and when such is introduced for the purpose, there is a conflict of evidence and that necessarily sends the case to the jury. Philadelphia & Reading -Railroad Company v. Kerst, 2 Walk. 480, was trespass against a railroad company to recover damages for the destruction of the plaintiff’s house by fire which was communicated by sparks from a locomotive. The testimony on the part of the plaintiff was simply that when the engine passed the house it was throwing out large sparks and the wind was blowing towards the house. The testimony of the defendant was that the spark arrester was in proper condition and was of approved pattern. The court charged the jury that they could find for the plaintiff only in case they found that either the engine was not provided with an improved spark arrester, or that it was not in good condition, or that the train was run in such a careless and negligent manner as to cause the sparks to fly out. The court refused to direct a verdict for the defendant and the jury found for the plaintiff. In affirming the judgment entered on the verdict this court said (p. 481): “If in fact the engine threw out sparks or balls of fire of the great size mentioned by some of the witnesses, it was clearly evidence to justify the jury in finding the engine was carelessly and negligently operated, or that the spark arresters were defectively constructed or out of repair. The apparently irreconcilable evidence was properly submitted to the jury in a correct and clear charge.” To the same effect is Van Steuben v. Central R. R. Co., 178 Pa. 367, where it is said in the opinion (p. 376): “ Such evidence [of the emission of coals or sparks of large size] required the submission of the case to the jury notwithstanding the testimony that the engine was provided with a sufficient spark arrester.” The same principle is announced in the similar case of Hagan v. Chicago Railroad Company, 86 Mich. 615, where it is said by McGrath, J., delivering the opinion of the court (p. 619): “Testimony cannot be said to be undisputed, when inconsistent with some other fact or circumstance, either established or regarding which testimony has been admitted. The court very properly declined to take the case from the jury, or to pass upon the conclusiveness of the testimony offered by the defendant.” Slossen v. Railroad Company, 60 Iowa, 214, was an action for damages caused by the burning of the plaintiff's property by fire communicated from an engine belonging to the defendant company. In that case an instruction to the effect that if defendant had proved that the locomotive was in good condition, and this testimony is uncontradicted by any witness, the jury should find for the defendant was held erroneous “because such testimony might be overcome by facts established on the trial, such as the repeated setting out of fires by the same locomotive on the same day, and there was testimony in this case tending to establish such fact.”

The first assignment of error must be sustained.

The second point for instructions presented by the plaintiff was substantially a motion to strike out the testimony of Mrs. Fleger, elicited on cross-examinations as to the fire of May 13, and justified the court in acting upon the question. It is not entirely clear that the answer of Mrs. Fleger was not responsive to the question of the defendant’s counsel, or that the answer should be stricken out. Of course, it may be assumed that the counsel was not seeking such information, and we have no doubt that on the next trial he will not give the witness an opportunity to tell the jury of fires which happened at dates so remote from the one giving rise to this litigation. There is no merit in the third assignment of error.

For the reasons given, the first assignment of error is sustained, and the judgment is reversed with a venire facias de novo.


author: Mr. Justice Mestrezat, Mr. Justice Elkin,

text:
    Ross v. Chester Traction Company, Appellant.

      Negligence — Infant—Personal injuries from fire — Street railway companies.

    In an action against a street railway company to recover damages for death of a little girl seven years old, the case is properly submitted to the jury where there is evidence that an employee of the defendant pushed a wheelbarrow load of waste and greasy material and newspapers onto a lot not owned by the defendant, set fire to the stuff while a high wind was blowing, waited until the mass was reduced to smoking embers, and then left the lot, and that the plaintiff and another little girl approached the embers, and while standing or sitting near them, the wind fanned them into a flame which communicated directly to the child’s clothing, or carried a live spark or cinder against the child’s clothing, igniting it.
    Mr. Justice Elkin dissents.
    Argued Feb. 8, 1909.
    Appeal, No. 175, Jan. T., 1908, by defendant, from judgment of C. P. Delaware Co., June T., 1906, No. 126, on verdict for plaintiffs in case of Charles W. Ross and Maggie M., his wife, v. .Chester Traction Company.
    Before Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of a child. Before Johnson, J. P.
    The facts are stated in the opinion of the Supreme Court.

      Verdict and judgment for plaintiffs for $1,540.07. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      John B. Hannum for appellant. —
    The cause of the child’s injury was the fact that the child rebuilt the fire into a dangerous condition and thereby fired herself.- To make this thought clear and illustrate it, it is analogous to an adult leaving matches where they can be reached by a child, and such child fires the matches and thereby produces an injury. Surely there would be no liability in such case. The agency is changed from a harmless to a harmful condition by the act of the child: Philadelphia & Reading R. R. Co. v. Spearen, 47 Pa. 300; Swanson v. Crandall, 2 Pa. Superior Ct. 85; Hoag v. Railroad Co., 85 Pa. 293; Herr v. Lebanon, 149 Pa. 222; Penna. R. R. Co. v. Kerr, 62 Pa. 353.
    A man is not to be held for consequences which he had no direct hand in producing and no reason to expect. Expectation that any particular thing will occur is produced by the probability that it will occur, not the possibility of its occurrence: Lane v. Atlantic Works, 111 Mass. 136.

      William I. Schaffer with him John B. Hannum, Jr., for appellees. —
    The defendant’s negligence was proximate, not remote: Haverly v. State Line, etc., R. R. Co., 135 Pa. 50; Lehigh Valley R. R. Co. v. McKeen, 90 Pa. 122; Gudfelder v. Pittsburg, etc., Ry. Co., 207 Pa. 629; Marsh v. Giles, 211 Pa. 17; Oil City Gas Co. v. Robinson, 99 Pa. 1; Bunting v. Hogsett, 139 Pa. 363; Bindford v. Johnston, 82 Ind. 426; Rachmel v. Clark, 205 Pa. 314; Duffy v. Sable Iron Works, 210 Pa. 326; Daltry v. Media Electric Light, etc., Co., 208 Pa. 403; Miller v. Lewistown Electric Light, etc., Co., 212 Pa. 593; Walsh v. Railways Co., 221 Pa. 463.
    If there are two theories as to how the child caught fire, the case was for the jury: Lehigh Valley R. R. Co. v. McKeen, 90 Pa. 122.

      March 15, 1909:
    “If the defendant’s servant kindled the fire in the way of husbandry and proper for his employment, though he had no express command, yet the master shall be liable, for it shall be intended that the servant had authority from his master, it being for his master’s benefit:” Per Lord Holt in Tuberville v. Stampe (1698), cited in 2 Street’s Foundations of Legal Liability, 451.
   Opinion by

Mr. Justice Mestrezat,

There are certain uncontroverted facts in this case. Dougherty was employed by the defendant company at its car barn to clean the barn and cars, and destroy the waste or rubbish. About 4:30 o’clock on the afternoon of May 25, 1906, he conveyed in a wheelbarrow to a vacant lot near the barn, not owned by the defendant, two armfuls of waste or rubbish, consisting partly of “greasy stuff, waste,” but principally of newspapers swept from the cars, which he fired by applying a match to it. The day was very windy, and Dougherty remained with the fire until a few minutes after 5 o’clock when he left -it, the flames having been extinguished, but the embers still smoking. While Mary Ross, a child of seven years, living in the immediate neighborhood, was playing with a companion near the fire in the vacant lot after school hours that afternoon, her clothing caught fire and she was badly burned. She died from the effects of the burning, and this action was brought by her parents.

Under proper instructions by the court, the jury found that Dougherty was acting within the scope of his employment with the defendant company when he carried the rubbish across the street to the vacant lot and set it afire, and that Mrs. Pennington, with whom Mary Ross was making her home at the time, was not negligent in the care and control of the child. The learned judge also submitted to the jury to determine whether the defendant company through its employee was negligent in burning the rubbish on the vacant lot under the circumstances and in the manner he did, and in leaving the fire in the condition it was in when Dougherty left it. The finding of the jury establishes the defendant’s negligence in this respect.

The single cause of complaint on this appeal is that the court erred in not holding as matter of law that under the evidence in the case the verdict should have been for the defendant. There is no error assigned to the charge, nor to the manner in which the cause was submitted by the learned court to the jury. The court affirmed the defendant company's point that it “was only bound to foresee the nature and probable consequences of leaving the ash heap in the condition in which it was left by Dougherty, and if the jury believe that the injuries incurred by Mary Ross were not such natural and probable consequence, their verdict should be for the defendant.”

In his printed brief the counsel says: “We may concede for the sake of the argument that the burning of the sweepings by defendant's workman was the act of the defendant, and that the duty was thereby imposed upon the defendant through its workman to safeguard the fire until it became harmless. This obligation was performed. The cause of the child’s injury was the fact that the child rebuilt the fire into a dangerous condition and thereby fired herself. ” It is claimed by the appellant’s counsel that the act of the defendant company in burning its rubbish on the vacant lot was not the proximate cause of the child’s injuries, but that there was an independent intervening cause which made the company’s act remote, thereby relieving it from liability in this action.

The argument of the learned counsel for the appellant is based upon an assumption of facts which were not found by the jury to exist in the case; at least from the evidence the jury was justified in finding that the fire was communicated directly to the child’s clothing, without the intervention of any act on her part or by the act of the other child who was with her at the time her clothing was ignited. There was ample evidence for the jury to find that Dougherty was negligent in his control of the fire after he had put a match to the rubbish. He remained with the fire a little more than a half hour and, according to his own story, the embers were smoking when he left it. It is true he says there was no blaze, but a man of ordinary intelligence, which we must assume him to be, would know that the smoking embers might easily be fanned into a flame by the high wind which he testified was, at the time, sweeping over that vacant lot.

Hager, a witness on the part of the plaintiff, was sitting on his porch directly across the street from the lot where the rubbish was burned. He testified that he saw Dougherty take the rubbish to the lot, burn it and leave the place. He says that when Dougherty left there was no blaze, but the embers were still smoking. He saw the two little girls go to the ground, and testifies that “they both of them sat down with little sticks this way and began to strike in the embers, .... both of them side by side, and they had not been there not over two or three minutes before little Mary jumped up with this blaze about that far (indicating) behind her dress.” He further testified that he was afraid the children would get afire when he saw them at the place “because it was still smoking and the wind was blowing so hard I was afraid they would catch fire.” He denied that Mary lighted a paper or fanned the embers, and testified that, “In fact they [the two little girls] did not stir from where they sat down until she [Mary] got up to run with the fire.” Hager was an eyewitness to the whole affair, and if his testimony was believed by the jury they were justified in finding that the wind fanned the smoking embers into a flame which communicated directly to the child’s clothing, or carried a live spark or cinder from the embers against the child’s clothing which ignited it. The facts established by the testimony, taken in connection with the undisputed facts in the case, were sufficient to warrant the 'jury in convicting the defendant company of negligence in not guarding and protecting the smoldering embers, which was the direct and proximate cause of the ignition of the child’s clothing, resulting in her death.

Some of the witnesses testified that Mary fanned the rubbish into a flame and lighted a piece of paper from which her clothing caught fire. This is the basis for the contention of the appellant’s counsel that “the cause of the child’s injury was the fact that the child rebuilt the fire into a dangerous condition and thereby fired herself.” But the witnesses who testified to the fire having been communicated to Mary’s clothing in this way said that they did not see her skirts get afire, and that they did not know how she did get afire. They confirm Dougherty's testimony that the wind was blowing very hard at the time, and say that it “blew your dress all out.” In fact, Edith Clineff, Mary’s little companion on the occasion, testified that the paper with which she fanned the embers “was not on fire.” Johnson, another witness, who testified that Mary “blowed the fire with a piece of paper” said that he did not see her dress on fire until she had run across the street.

It is apparent, we think, that there is no evidence in the case which would compel the conclusion that the child set fire to her clothing by a piece of paper in her own hands, and hence the learned counsel for the appellant has based his argument upon the assumption of a material and controlling fact which is not conceded in the case. But if we admit that there was testimony in the case from which the jury could have found that the child did fan the smoldering embers into a flame which was communicated to her clothing by a piece of paper in her hands, there is also testimony, as we have already pointed out, from which the jury could find that the wind blew live cinders against her clothing or fanned the embers into a flame which communicated directly to the child’s clothing while she was seated near the fire. Which of the two theories was correct and how the child’s dress was set afire were manifestly for the jury. As suggested above, if the jury found, as they could have found under the evidence, that the child’s clothing was fired by flames or sparks from the rubbish directly communicated to her dress, then there was manifestly no independent, intervening cause which occasioned her injuries, ■and the defendant company is responsible in this action, for the consequences of Dougherty’s negligent act in not guarding the fire until it was in a harmless condition. This would warrant the court in refusing to withdraw the case from the jury. We cannot presume that the jury found that the child’s injuries were caused by her own negligent act. Had the defendant’s counsel desired to raise the question of whether the facts, as he claimed them to be, constituted an independent, intervening cause, he should have submitted a point for instructions and had a direct ruling by the court. He cannot now raise that question under the assignments of error filed in the case. Whether the facts, as he alleges them to be, were an independent intervening cause of the child's injuries, cannot be decided on this record. There being sufficient evidence to establish facts disclosing negligence of the defendant as the proximate cause of her injuries, and that evidence having been submitted to the jury, we cannot now sustain an assignment which alleges that the court erred in not setting aside a verdict based upon the evidence.

The testimony in the case was conflicting as to the circumstances and conditions under which the rubbish was burned on the vacant lot, and as to how the girl's dress was set on fire and hence whether the firing of the child's clothing was the natural and probable consequence of Dougherty's act which he should have, foreseen was for the jury. “From the very essence of the thing, ” says Chief Justice Agnew in Penna. R. R. Co. v. Hope, 80 Pa. 373, 380, “the natural probability of a consequence, which ought to have been seen, is a matter of fact to be determined upon the evidence. Every cause must depend upon its own circumstances.” So also was it a question for the jury whether Dougherty exercised the care required of him under the circumstances in starting and guarding the fire: McCully v. Clarke & Thaw, 40 Pa. 399. That case was trespass for not guarding and extinguishing a fire whereby the plaintiff's warehouse and its contents were destroyed. Strong, J., delivering the opinion, said (p. 406): “Whether the defendants had been guilty of the negligence charged, was therefore the principal subject of inquiry; in other words, whether they had exercised such care and diligence to prevent injury to the property of the plaintiff, as a prudent and a reasonable man, under the circumstances, would exercise. Now, it is plain that what is such a measure of care is a question peculiarly for a jury.”

The assignments are overruled, and the judgment is affirmed.

Mr. Justice Elkin,

dissenting:

If this is a case for the jury at all, I agree that it was properly submitted and that the judgment should be affirmed. It does not seem to me, however, that appellant was not guilty of any negligence for which it should be made answerable in damages. The standard of care required in order to sustain this action is higher than the law has imposed upon a defendant up to the present time in any similar case. The appellant company is not charged with failure to perform any duty it owed its employees, its passengers, or the public in the operation of its line of street railway. The relation of common carrier and passenger, or of master and servant, did not exist between the parties. The rule adopted in this case must necessarily have general application to the farmer, mechanic, laborer, and every other citizen of the commonwealth who finds it necessary or convenient to occasionally burn brush or rubbish on the highway or upon open lots. I concede that in such cases the duty of reasonable care rests upon the person who starts the fire in order that no injury may recklessly or negligently be inflicted upon the person or property of others. But to my mind, this duty has been met when a person charged with negligence under such circumstances shows that his servant while burning some waste paper on an open lot stood by the little fire until the flames died out, the paper was burned to embers, and only the smouldering ashes remained to mark the spot where the fire was started, and that is this case. To go further and hold that it was his duty to foresee and provide against the possible contingency that a child might stray that way, fan the smouldering ashes into a burning ember sufficient to light a piece of paper held in her hand, from which her clothing took fire and serious injury resulted, is to place upon a property owner, or citizen, a standard of care higher than the law should require in dealing with the customs and usages of people in the practical affairs of everyday life. The custom of burning waste paper, rubbish, brush or leaves at the roadside or upon open lots is as old as our law and as widespread as our commonwealth. In my opinion it is error to apply to such cases the rule which requires the very highest standard of care to be exercised by those having the control and supervision of dangerous agencies such as electricity, natural gas, deadly explosives, and other natural or mechanical forces with which the people are not familiar and from the dangers of which they cannot protect themselves. What everybody has done for a century certainly should come within the rule' of usual and ordinary care. Under such a rule there could be no recovery in this case. It is true the open lot did not belong to appellant, but it is equally true that it did not belong to appellees. Both parties stood upon an equality so far as the use of the lot is concerned. The evidence shows it was the customary place to burn waste paper, also that children frequented it. No question is raised by the lot owner as to the right of appellant to burn waste paper upon the premises. It must therefore be assumed for the purposes of this case that appellant had a right to do what was done, and the only question that can arise is whether it was done in a negligent manner, as to which all that has been heretofore said applies. There is an unwholesome tendency to extend the law of negligence in every possible direction and to all kinds of occurrences until we have reached the point of applying the doctrine to injuries received from accidents resulting from the practices of everyday life. It may be and nó doubt is difficult to draw the line of distinction between cases for which there should be responsibility in damages and those in which there should not be. But, in determining the proper rule applicable to such cases, the natural and necessary risks and dangers incident to the affairs of men in organized society which everyone must assume in consideration of the privileges he enjoys by his association and in his dealings with his fellow men, must be an important factor. There are many unfortunate accidents resulting in serious injury to persons, but it will not do to say that someone must be answerable in damages because of sympathy for the injured person when the evidence shows that the party sought to be charged only did what was usual and customary under the circumstances surrrounding the accident. A single verdict against a farmer, or mechanic, or small property owner, might sweep away the frugal earnings of a lifetime, while in point of fact nothing was done except what had been a general custom in the neighborhood.

As I view this case it was not the duty of appellant, nor would it be the duty of any other owner of property, to foresee and provide against the contingency that did happen, and therefore the injuries complained of were not the result of any negligence for which the law makes the offending party liable.

I would reverse the judgment.