author: Mb.. Justice Dean,

text:
    White v. Roydhouse, Appellant.

      Negligence—Master and servant—Proximate cause—Mixing mortar in street.

    In an action against an employer to recover damages for personal injuries sustained by the alleged negligence of a workman, it appeared that the defendant, a contractor, had obtained from a city permission to construct and operate a mortar bed on the side of a street. One of the defendant’s workmen in mixing the mortar came across a lump of unslacked lime which it was necessary to crush. He raised a hoe which he was using, and struck the lump with sufficient force to crush it; in so doing a small particle of lime flew fifteen feet and seriously injured the plaintiff’s eye. Plaintiff’s position at the time of the accident was not one of apparent danger. Held (1), that there was nothing to show negligence on the part of defendant’s workman; (2) that there was no negligence in placing the mortar bed where it stood, inasmuch as the defendant had the permission of the city, and the city had the power to grant the privilege.
    Argued Jan. 5, 1905.
    Appeal, No. 161, Jan. T., 1904, by defendants, from judgment of C. P. No. 3, Phila. Co., June T., 1903, No. 3113, on verdict for plaintiff in case of William PI. White v. Harry C. Roydhouse and William E. Arey, trading as Roydhouse, Arey & Co.
    Before Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Trespass to recover damages for personal injuries.

      The circumstances of the accident are stated in the opinion of the Supreme Court.
    The court refused binding instructions for defendants.
    Verdict and judgment for plaintiff for $1,633. Defendants appealed.

      Error assigned amongst others, was in refusing binding instructions for defendants.

      H. Gordon MeCoueh, with him Charles S. Wesley and Dickson, Me Couch $ Glasgow, for appellant.
    The facts as disclosed by the evidence do not warrant the inference of any negligence on the part of the defendants’ employee, Ruley: Parrot v. Wells, Fargo & Co., 82 U. S. 524; Howard Express Co. v. Wile, 64 Pa. 201; Huey v. Gahlenbeck, 121 Pa. 238 ; Stearns v. Ontario Spinning Co., 184 Pa. 519 ; Frazier Bros. v. Lloyd, 23 W. N. C. 178; Wall v. Lit, 195 Pa. 375.
    The plaintiff was guilty of contributory negligence in standing on the pavement so near to where Ruley was mixing mortar : Pittsburg, etc., R. R. Co. v. McClung, 56 Pa. 294; Lynch v. Erie, 151 Pa. 380.
    The plaintiff was a trespasser and cannot recover even though the defendants’ servant, Ruley, was guilty of negligence in mixing the mortar and the plaintiff free of contributory negligence: Piollet v. Simmers, 106 Pa. 95 ; Moore v. Penna. R. R. Co., 99 Pa. 301; Gillespie v. McGowan, 100 Pa. 144; B. & O. R. R. Co. v. Schwindling, 101 Pa. 258; McMullen v. Penna. R. R. Co., 132 Pa. 107 ; Rodgers v. Lees, 140 Pa. 475; Fisher v. Paxson, 182 Pa. 457; Loughrey v. Penna. R. R. Co., 201 Pa. 297.

      Philliio ET. Goldsmith, with him Charles L. Brown, for appellees.
    The question of the negligence of the defendants’ employee, Ruley, was properly left to the jury : Elkins v. McKean, 79 Pa. 493 ; Harrisburg v. Saylor, 87 Pa. 216; Lehigh Valley R. R. Co. v. McKeen, 90 Pa. 122.
    The question of plaintiff’s contributory negligence was properly left to the jury: Penna. Canal Co. v. Bently, 66 Pa. 30 ; Bradwell v. Pittsburg, etc., Ry. Co., 139 Pa. 404; Baker v. Westmoreland, etc., Nat. Gas Co., 157 Pa. 593.

      March 6, 1905 :
   Opinion by

Mb.. Justice Dean,

In March, 1903, the plaintiff, White, was employed as a bolt-maker in the shop of the Baldwin Locomotive Works in Philadelphia. The defendants, Roydhouse, Arey & Co., were independent contractors and builders who had contracted with the Baldwin Company to make certain repairs and additions to the locomotive factory. For their purpose in making repairs and additions the contractors had obtained from the city permission to place building material and to construct a mortar bed on the side of the street and highway; impliedly this gave them permission to prepare and mix mortar at that place to be used in their building operation. While the repairs to the building were going on the work in the locomotive shops was not interrupted. The plaintiff, with other mechanics, continued at his work. A barrel of water stood outside the exit or door from the boiler shop in which the plaintiff worked. This water barrel had been put there by defendants and was in use by them in making repairs to the building. The testimony of the witnesses is so contradictory that it is impossible to say with any certainty how far from the door of the boiler shop the barrel stood or how far from the mortar bed; it was probably from two to four feet from the door and the mortar bed was from six to ten feet from the barrel. On the day of the accident White came out of the shop, holding in tongs a red-hot iron bolt, went to the barrel and plunged it into the water to cool it. Ruley, in the employ of defendants, was then with a hoe mixing mortar in the mortar bed. Just as White was stooping to plunge the bolt in the water barrel Ruley struck a lump of lime in the mortar bed with his hoe; a fragment of it flew over and struck White in the face, a particle entered his eye causing him very serious if not permanent injury. He brought suit against Ruley’s employers for damages occasioned by the alleged negligence of their servant. The court left the evidence of negligence to the jury, who found for plaintiff.

Defendants bring this appeal, averring in their first assignment of error that there was no evidence of negligence which should have been submitted to the jury. Was there ? On this question our judgment turns. The court’s definition of negligence, “absence of care according to the circumstances,” was correct enough, but leaving it to the jury to find the circumstances from which the inference of negligence could be drawn, when there were no such circumstances in the evidence, we are of the opinion was error: Stearns v. Ontario Spinning Co., 184 Pa. 519, and many other cases preceding it.

We have carefully examined the evidence andean find nothing on which to base such an inference. White himself, testifying under the strong bias of his interest, says : “I had n’t the bolt in the barrel more than five or six seconds and I was looking towards the street and I saw this colored gentleman come down with the hoe on the lump of lime this way (indicating). He brought the hoe over his shoulder this way and brought it down on the lime. At that moment I felt something strike me in the eye and it began to burn.” He further states that when Puley stuck the lump of lime with the hoe he was about fifteen feet distant. Put aside all the testimony of defendants, that Ruley did not raise the hoe over his shoulder at all, and adopt that of the plaintiff as the truth, what does it amount to ? That Pule}'' mixing mortar fifteen feet from him came across a lump of unslacked lime which before it would mix with the water and sand had to be crushed ; with a light tool such as a hoe he had to raise it over his shoulder and strike with sufficient force to crush the lump; in so doing a small particle of lime flew fifteen feet and seriously injured plaintiff’s eye. Where was the negligence? The result was not a probable consequence of Puley’s act in mixing the mortar with the hoe; the most that could he said of it is, that the consequence was very remotely possible, so remotely, that it is one which in the ordinary affairs of life the most careful men do not anticipate and make provision against. If Puley in the course of his work had been about to explode a charge of gunpowder, he would have been bound in the exercise of care to warn all within reach that he was about to apply the match; but to give warning that he was about to strike a small lump of lime in a bed of mortar with a hoe, would have been considered by every prudent man as not care according to the circumstances, but foolishness. Taking the circumstances in their strongest light against defendants we can discover no negligence which warranted the verdict. Two of plaintiff’s witnesses testify that after the accident Puley displayed indifference ; he did not run to White and assist the latter’s fellow-workmen in relieving him from pain. Perhaps Iiuley did not act with the sympathetic feeling most men would have shown, and perhaps this had much to do with the large verdict against his employers; but it must be borne in mind that they are not answerable for the absence of kindness in their employees, but only for want of care in mixing mortar. In the ordinary conduct of the affairs of life, there is no duty on anyone to anticipate and provide against the remotely possible; there are hundreds of what are purely accidents occurring every day in which some one is injured in consequence, yet no one is legally answerable for them because such consequence is not natural or probable.

The appellant argues, there was contributory negligence on the part of plaintiff in going to the water barrel oE defendant and so close to the mortar bed to cool his bolt; there was no negligence in doing this because to all human appearances there was no danger in so doing.

The argument of appellee, that it was negligence to place the mortar bed in this place is without weight. The city, as it had the lawful authority to do, gave defendant permission to place it there temporarily for building purposes: Piollet v. Simmers, 106 Pa. 95. That permission was in full force when the accident occurred. No one doubts the authority of the city to exercise to a reasonable extent its power to authorize an obstruction for such a purpose.

We sustain, however, appellant’s first assignment of error, viz : there was no evidence of negligence on part of defendants.

The judgment is reversed and judgment entered for defendant.


source: Caselaw Access Project

author: Mb. Justice Fell,

license: Public Domain

text:
    Marsh v. Giles, Appellant.

      Negligence—Infants—Proximate cause—Stone on sidewalk—Evidence.

    In an action to recover damages for personal injuries to a boy seven years old, it appeared that the defendants had placed on the unpaved footway of a back street a number of stones, one of which, three feet long, about six inches wide and three inches thick, was in a slanting position, one end resting on the ground, and the other against an electric light pole. Plaintiff had seen a policeman strike the pole with his club when the light had accidentally gone out. He suggested to a companion nine years of age that they light the electric light by jarring the pole as they had seen the policeman do. The younger boy placed his arms around the pole and the elder boy, standing on the other side of the pole, drew the upper edge of the stone back and then pushed it forward or let it fall against the pole. While they were thus engaged, a finger of the younger boy got between the stone and the pole and was injured. Held (1), that even if the defendants were negligent in placing the stone upon the footway, they were not liable if the negligence was not the proximate c'ause of the injury; (2) that the defendants’ act was not the proximate cause of the injury, inasmuch as the accident was due to the independent intervening act of the plaintiff’s companion in making a use of the stone not reasonably to have been foreseen: Rachmel v. Clark, 205 Pa. 314, distinguished.
    Argued Jan. 5, 1905.
    Appeal, No. 121, Jan. T., 1904, by defendants, from judgment of C. P. No. 2, Phila. Co., June T., 1902, No. 996, on verdict for plaintiff in case of Daniel Marsh and Elmer Marsh by his father and next friend, Daniel Marsh v. Charles A. W. Giles, Bernard Shields and Thomas McLaughlin, trading as Giles, Shields & Company.
    Before Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Barratt, J.
    The facts relating to the accident appear by the opinion of the Supreme Court.
    Verdict and judgment for the father for $1,000 and for the minor for $4,000.

      Error assigned was in refusing binding instructions for defendants.

      John G. Johnson, with him Francis G. Gallagher, for appellants.
    The negligence of the defendants did not occasion the injury. The act of the companion in using something he found upon the highway brought about the crushing of the finger: Swanson v. Crandall, 2 Pa. Superior Ct. 85 ; Ins. Co. v. Tweed, 74 U. S. 44; Chicago, St. P. M. & O. Ry. Co. v. Elliott, 55 Fed. Repr. 949 ; Herr v. Lebanon, 149 Pa. 222; Hoag v. R. R. Co., 85 Pa. 293 ; Scott v. Allegheny Valley Ry. Co., 172 Pa. 646; Gaughan v. Philadelphia, 119 Pa. 503 ; Guilmartin v. Philadelphia, 201 Pa. 518 ; Willis v. Armstrong County, 183 Pa. 184; Card v. Columbia Twp., 191 Pa. 254; Behling v. Spothwest Penna. Pipe Lines, 160 Pa. 359.

      Eugene Raymond, for appellees.
    The intervening negligence of third persons, for which the plaintiff is not responsible, will not arrest the chain of causation so as to deprive the plaintiff of a right of recovery against the person guilty of the first negligence : Shearman & Redfield’s Negligence (1898), par. 35; Oil City Gas Co. v. Robinson, 99 Pa. 1; Koelsch v. Phila. Co., 152 Pa. 355; Mann v. Weiand, 81* Pa. 243 ; Plymouth Twp. v. Graver, 125 Pa. 24; Wood v. Penna. R. R. Co., 177 Pa. 306 ; Faust v. P. & R. Ry. Co., 191 Pa. 420; Schilling v. Abernethy, 112 Pa. 437; Herr v. Lebanon, 149 Pa. 222 ; Corbin v. Phila., 195 Pa. 461; Enright v. Pittsburg Junction R. R. Co., 198 Pa. 166 ; Rachmel v. Clark, 205 Pa. 314; Daltry v. Electric Light, etc., Co., 208 Pa. 403.
    March 6, 1905 :
   Opinion by

Mb. Justice Fell,

The facts that give rise to the question involved are these : The defendants owned a stone yard which fronted on a main street and extended back to a narrow street on which the children who lived in the vicinity were accustomed to play. Some days before the accident the defendants had placed on the unpaved footway of the back street a number of stones, one of which, three feet long, about six inches wide and three inches thick, was in a slanting position, one end resting on the ground and the other against an electric light pole. One of the plaintiffs, a boy not quite seven years of age, lived with his father, the other plaintiff, on the opposite side of the street. He had seen a policeman strike the pole with his club when the light had accidentally gone out. He suggested to a companion nine years of age that they light the electric light by jarring the pole as they had seen the policeman do. The younger boy placed his arms around the pole and the elder boy, standing on the other side of the pole, drew the upper edge of the stone back and then pushed it forward or let it fall against the pole. While they were thus engaged, a finger of the younger boy got between the stone and the pole and was injured.

The jury were instructed that the use of the footway for the storage of stone was unauthorized, and that if the situation at the time was such as would have caused a reasonably prudent person to apprehend danger to an adult or child, the defendants were negligent and a verdict might be rendered against them.

A finding of negligence in placing the stone against the pole in the footway was not conclusive against the defendants. There still remained the question whether their negligence was the proximate cause of the injury. On this the case turned. If we assume that the defendants had no right to place the stone on the footway and were negligent in so doing, they were liable only for the natural and probable consequences of the wrongful act. An injury occasioned by the stone falling on a person passing, or by its being pushed over by children playing on the street, would have been a direct consequence of the defendants’ act and one which they were bound to foresee. But the plaintiff’s injury was the immediate consequence, not of the position of the stone as placed by the defendants, but of the independent, intervening act of the plaintiff’s companion in making a use of the stone not reasonably to have been foreseen. If the stone had been flat on the ground and the injury had resulted from an attempt to lift it, or had it been a smaller stone which the boy could have taken in his hand and the injury had resulted while he was pounding the pole with it, the want of causal connection between the act of the defendants and the injury would not have been more clear. The plaintiff’s injury could not reasonably have been contemplated as a result of the defendants’ act in placing the stone on the footway. It was caused by the wholly unrelated and unforseen act of another. The case is unlike that of Rachmel v. Clark, 205 Pa. 314, where the owner of a slate factory negligently permitted a slab of slate to stand on the pavement, or on ground so close to the building line as not to be distinguished from the pavement, in such position that it fell on a boy who leaned against it.

The judgment is reversed and judgment is now entered for the defendants.


author: Mb. Justice Dean,

text:
    Bratten, Appellant, v. Catawissa Railroad Company.

      Railroads—Corporations—Bonds—Preferred stock—Conversion of bonds into stock.

    Where a bond issued by a railroad company recites that the holder of the bond “shall be entitled at any time after fifteen years from the date thereof to convert the principal sum into preferred stock of the said company,” and it appears that at the date of the bond the company had no actual right to issue preferred stock, but that by the acceptance of an act of assembly previously passed, it would immediately acquire such right, the company must at the expiration of fifteen years comply with the demand of a bondholder for the conversion of the bond into stock, or answer in damages to the extent of the market value of the stock at the date of the demand. In such a case it is no answer to the demand that the company had no stock, and could acquire none except by bidding it up in the open market to a ruinous rate. It is also no answer that no other bondholder had made such demand.

      Contract—Construction—Surroundings of party.

    The surroundings of the parties at the time of making the contract and the subject-matter thereof are always admissible to ascertain their intention, if their expression be ambiguous or disputable.
    Argued Jan. 5, 1905.
    Appeal, No. 175, Jan. T., 1904, by plaintiff', from judgment of C. P. No. 3, Pbila. Co., Dec. T., 1901, No. 3698, on verdict for defendant in case of James H. Bratten v. Catawissa Railroad Company.
    Before Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Assumpsit for breach of contract. Before Finletter, P. J.
    The facts appear by the opinioj: of the Supreme Court.
    The court gave binding instructions for defendant.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      B. Stuart Robinson, of Beeh Robinson, for appellant.
    Wherever a latent ambiguity exists and words of description have a double application, resort may be had to the text or to the situation of the parties and the circumstances under which it was entered into, for the purpose, not of changing the writing, but of furnishing light by which to ascertain its actual significance: Runkle v. Burnham, 153 U. S. 216 (14 Sup. Ct.. Repr. 837); Hurley v. Brown, 98 Mass. 545; New England Dressed Meat, etc., Co. v. Standard Worsted Co., 165 Mass. 328 (43 N. E. Repr. 112); Ellis v. Lane, 85 Pa. 265; Dixon-Woods Co. v. Phillips Glass Co., 169 Pa. 167.
    Where there is a doubtful or ambiguous meaning, it will be considered most strongly against the person using the language: Noonan v. Bradley, 76 U. S. 394.

      Geo. Tucker Bispham, with him Charles Seebner, for appellee,
    cited: Storrow v. Texas Consolidated Compress & Mfg. Assn., 87 Fed. Repr. 612; Kirk v. Nice, 2 Watts, 367.
    March 6, 1905:
   Opinion by

Mb. Justice Dean,

The question is as to the interpretation of the obligation of a bond secured by mortgage, delivered by defendant to M. P. Hutchinson, June 15, 1871, and the ownership of which by regular assignment and transfer had passed to Bratten, this plaintiff. The bond is dated October 1, 1870, as the day of issue, is in the sum of $500 and one of four bonds of a like sum issued at the same time to the same payee and of which plaintiff became the owner. Each bond, after providing for semiannual payment of interest at seven per cent, contains this stipulation:

“ That the holder of this bond shall be entitled at any time after fifteen (15) years from the date thereof to convert the principal sum into preferred stock of the said company at par upon surrender of this bond with the coupons not due annexed.”

On July 27, 1900, plaintiff notified the company in writing that his four bonds would be due August first following and that he demanded their conversion into preferred stock in accordance with the provision in the bonds and mortgage. The company refused to comply with the request, but the 27th of November following made this proposition in writing to plaintiff: “You are herewith tendered the sum of $2,036.33 August 1, 1900, at the rate of six per cent per annum to this date.” Which tender the plaintiff refused. The company had issued and there were then in the market two issues of its preferred stock, one called the “ old preferred ” and the other the “ new preferred ” each at par value of $50.00 per share and as plaintiff averred and proved selling in the market at $58.00 per share. He brought suit against defendant for damages, claiming the market price of forty shares of the preferred stock with interest from August 1, 1900, the date of his demand for conversion. The court below directed a verdict for defendant and plaintiff appeals.

At the date the bonds matured there were but two classes of stock, common and preferred, and in the fifteen years before maturity the company had issued no other. By the act of incorporation of the company, March 21, 1860, P. L. 234, it had authority to issue $3,350,000 of stock, $2,200,000 of preferred and $1,150,000 of common, each share of the par value of $50.00; of the preferred the act itself directed that 3,000 shares should be applied in discharge of a “ confidential ” debt to the Erie Railroad Company. All the stock, common and preferred, specifically mentioned in the act had prior to 1869 been issued, at least in the minutes of the company for that year it is called “ outstanding.” But in the original act was this further provision, “And the said corporation may by a vote of its preferred stockholders at a meeting duly and specially convened at which three-fourths in amount of said preferred stock shall vote in favor thereof, shall have a right to increase the amount of the preferred or common stock for real estate for use of said company or for the extension of its road.”

Under this authority the company determined to extend its road to Williamsport* A meeting of the preferred stockholders was called, which meeting on September 16, 1870, resolved to execute a mortgage upon all its property to secure a loan of $1,000,000 and issue bonds to that amount in denominations of $500 and $1,000 to be used in the construction of the extension to Williamsport; the bonds to be payable, principal and interest, at the end of thirty years or be convertible at the end of fifteen years into preferred stock at the option of the holder. The plaintiff’s bonds are part of those authorized by this resolution at this meeting of preferred stockholders. The legislature by .Act of December 29, 1869, P. L. 1870, authorized all corporations to increase their capital stock fifty per cent of any amount theretofore authorized, provided the authority to increase should not apply to any corporation until it duly accepted the act. The Catawissa Company did not accept the act until September 28, 1871, hence, although the authority existed in 1870 to increase the debt fifty per cent it was ineffectual so far as concerned defendant until it had accepted the act. But on October 5# 187^ more than a year after it had accepted the act, the company authorized an issue of 20,000 shares equal to $1,000,000 par value of preferred stock; this is called the “new preferred.”

It may be conceded that under the act of 1869 authority to increase the debt fifty per cent had not then become operative, yet full authority to make the extension to Williamsport had been' conferred by the act of 1860, and full authority to increase the debt was in existence by the act of 1869 and became effective as to this company as soon as the simple formality of acceptance was observed. This was the- condition of affairs when the preferred stockholders met on September 16, 1870, and authorized the execution of the mortgage and bonds.

It is not necessary in this case to discuss the respective rights of common and preferred stockholders, or the relative rights as to each other of first, second and third preferred stockholders. No such questions arise here. The holders of the common stock are not interested or, if they are, they are not parties to the issue. The question is, what is the right of this bondholder by the terms of his bond against the company which issued it? “The surroundings of the parties at the time of making the contract and the subject-matter thereof are always admissable to ascertain theirjmtention, if their expression be ambiguous or disputable:” Dixon-Woods Co. v. Phillips Glass Co., 169 Pa. 167; Ellis v. Lane, 85 Pa. 265. Under the act of 1860 there was an authorized issue of 44,000 shares of preferred stock but ten years of construction work had been going on and this had all been used. There was none in the treasury, and, so far as appears, none in the control of the company. A mortgage had been executed and recorded which provided that the bonds should be payable in -fifteen years at the option of the holder by converting them into preferred stock; they could not have meant preferred stock then in existence, for none, as they knew, was within reach of the company. But fifteen years would elapse before the option by the holders of the bonds could be exercised. The authority to create the new preferred stock lawfully under the act of 1869 by merely filing a certificate of the president and treasurer of the company with the auditor general that it had accepted the act, would apply the act to this company. With this knowledge, the company issued this bond. According to its express terms this plaintiff now demands his preferred stock. The company knew he had such right and might claim to exercise it in fifteen years ; what is their answer to his demand ? That none of the other bondholders have demanded preferred stock, and in substance, that the company has no preferred stock to be used for such a purpose. It tenders him the face value of his bonds in money. This was in plain disregard of its obligation and of the bondholders’ right.

We do not say the company was bound to go into the market and buy up its own stock at any price to deliver to the optional bondholders ; if all the bondholders exercised their option at the same time and demanded preferred stock, and the company had been compelled to go into the open market and buy, that would have sent the price up, as appellee’s counsel argues, to a ruinous point; but prudent business men need not have subjected their company to this alternative. Fifteen years before, this company had delivered these bonds; Avith the mortgage and bonds before them the directors knew that about the end of that period some of the bondholders, perhaps most of them, would demand a conversion; yet with all this time to prepare for the demand they seem not to have had in their treasury or within their reach forty shares of preferred stock to meet plaintiff’s demand. It is argued by appellee’s •counsel that at the time of the demand the entire issue of the authorized stock was then outstanding and the company had none and could get none, unless a new issue of the preferred stock was authorized. This is no answer to a creditor who stands on the letter of his bond. Without intimating what the right of the creditor might have been if a “second preferred ” stock had been tendered him, the company offered him 'nothing but the face of his bond in money; he Aras not bound to accept it. If he had waited for thirty years until the principal of the bond became payable absolutely in money and the company had answered his demand by saying it had no money and he must wait, the probability is, he would at once have resorted to suit on his mortgage and compelled payment; because of a denial of his right to .preferred stock he resorts now to a suit in assumpsit, offering his bond as evidence of the measure of damages, and he is clearly within his right. That is our construction of the bond.

The court below erred in directing a verdict for the defendant. The judgment is reversed and it is now ordered that judgment be entered for plaintiff in the sum of $2,320, with interest from August 1, 1900, the date of his demand for conversion.


author: Mb. Justice Mestbezat,

text:
    McAlpin’s Estate.

      Wills—Remainders—Death without issue.

    If a bequest be made to a person absolute in the first instance, and it is provided that in the event of death or death without issue another legatee or legatees shall be substituted to the share or legacy so given, it shall be construed to mean death without issue before the testator, if the gift is immediate, or death without issue during the continuance of the prior estate where the limitation is by way of remainder.
    Testator in his will, after directing his trustees to pay the semiannual income and profits of one third of his estate to his daughter for life, and giving her a power of appointment which was not exercised, provided as follows: “In case all her children shall depart this life without issue, the part or share in this my last will and testament devised to the said children of my daughter Maiy shall revert to and be equally divided among my surviving heirs.” Held, that after the daughter’s death her children took an absolute estate free from the trust.
    Argued Jan. 6, 1905.
    Appeal, No. 96, Jan. T., 1904, by Alexander Harding, trustee, from decree of O. C. Phila. Co., April T., 1882, No. 255, dismissing exceptions to adjudication in Estate of James McAlpin, deceased.
    Before Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Exceptions to adjudication.
    Penrose, J., filed an adjudication which was in part as follows :
    The account has been filed for the purpose of having the question decided as to the continuance of the trust, which was created by tbe will of the decedent—the grandfather of the cestui que trust.
    The testator died, as represented in the petition annexed, in July, 1847. His will, with -codicils, proved July 26, 1847, shows that he had three children, Mary F. Sommerville, Margaret S. Harding and Alexander B. McAlpin, of whom the latter had already received a considerable share of the estate. He gave the residue of his estate, therefore, to trustees, viz: his son-in-law, John Harding, Alexander To war, his two daughters and his niece, Maria McAlpin, in trust to pay the income of one third to his daughter, Mary F. Sommerville, for life, etc., the income of another third to his daughter, Mrs. Harding, etc., and the income of the remaining third to his niece, Maria Mc-Alpin, for life—it being provided in the case of his niece that at her death “ (she leaving no issue) then her share of the estate to be equally divided into three parts, as follows: One part to Mary Fulton Sommerville or her heirs, one part to the children of Alexander B. McAlpin, and one part to Margaretta Shedden Harding or her heirs, share and share alike.” It was also provided that the income of the share thus given at the death of Maria McAlpin to the children of Alexander McAlpin, should be paid to their father, Alexander McAlpin, for life, and at his death, the principal to such children, in equal shares, etc.; and there was a further provision that if the estate should increase in value so as to “ make each of such heirs equal with the sum which my son, Alexander B. McAlpin, has already received, and there be a residue, such residue should be divided into four equal parts,” the income of one of which should be paid to his said son for life, and at his death “ the said share to go to the sole use and benefit of each of the surviving children of the said Alexander B. McAlpin, share and share alike,” —the other three shares of residue going to his daughters and niece “ as divided above.”
    The provisions of the will with regard to the share of Mrs. Sommerville, which are scattered through the will, are as follows : “ I further will and direct that my said trustees shall from time to time pay the semi-annual income, interest and profit of one third part of my said estate to my said daughter, Mary Fulton Sommerville, widow of Maxwell Sommerville, for her sole and separate use during her natural life.”. . . At the death of Maria MeAlpin (sbe leaving no children), “then her share of the estate to be divided into three parts, as follows: one part to Mary Fulton Sommerville or her heirs; one part to the children of Alexander B. MeAlpin ; and one part to Margaretta Shedden Harding or her heirs. I further will and direct with respect to the devises and legacies given to my daughters, Mary F. Sommerville and Margaretta S. Harding, that each of them, whether single or consort, shall have the power by will or appointment in nature of a last will and testament to devise and bequeath to whomsoever they may please as fully and amply as they may desire all the estate devised and bequeathed to them in this my will. . . .
    “ It is further my will and meaning that the money left by me to my daughters Mary and Margaretta shall not at any time be liable for the debts of their respective husbands—I hereby authorize and direct the trustees .... to pay the semi-annual income and profits devised to my daughter Mary F. Sommerville, into her own hands for her sole use and benefit, and her receipt for the same shall be good and available in law, or in their discretion at her request to appropriate said income to her maintenance and support so that the same shall not be in any wise liable for any debt or debts of her late husband, Maxwell Sommerville, deceased, which may remain unpaid—I further will and direct that the interest and income given and devised to my said daughter, Mary F. Sommerville shall be paid to herself alone, as from time to time they shall become due, and that they shall not in any manner be liable for her present or future debts, or to be transferred or disposed of by her, and in case all her children shall depart this life without issue, the part or share in this my last will and testament devised to the said children of my daughter Mary shall revert to and be equally divided among my surviving heirs.”
    It was stated by counsel that the amount advanced by the testator to his son Alexander B. MeAlpin, in his lifetime, was 130,081.60.
    Mrs. Sommerville died, as further represented, in 1861, intestate, leaving two children, Maxwell Sommerville and James M. Sommerville.
    Mrs. Harding has also died, having exercised her power of appointment in favor of her children. Maria McAlpin died in 1869, intestate and without issue; and Alexander B. McAlpin, in 1858, intestate, leaving a daughter, Meta R. Phillips, who has since died leaving three children, Helen Weber, Mc-Alpin Phillips, and William Phillips.
    All of the original trustees are' dead, and the present accountant was appointed their successor in 1868.
    Apart from'the implication of a gift to the children of Mrs. Sommerville from the limitation over in the event of the death of such children without issue, the testator has expressly declared in the last clause relating to her that he has “ devised ” the shares to them.
    Taking the will in its entirety, we have, therefore, an equitable estate in the daughter of the testator, for life, followed by a vested gift, unlimited as to duration, to her children, subject to be divested by the exercise of her power of appointment (Perry on Trusts, sec. 250), and subject also to be divested by the death of such children “without issue,” in the sense that such death is presumed to have been intended by him.
    The daughter having died without exercising her power of appointment, the case falls within the familiar principle, illustrated by Mickley’s Appeal, 92 Pa. 514; Morrison v. Truby, 145 Pa. 540; Coles v. Ayres, 156 Pa. 197; and very many other decisions, that “ if a bequest be made to a person absolute in the first instance, and it is provided that in the event of death or death without issue, another legatee or legatees shall be substituted to the share or legacy so given, it shall be construed to mean death or death without issue before the testator,” if the gift is immediate, or death or death without issue during the continuance of the prior estate where the limitation is by way of remainder: Edwards v. Edwards, 15 Beav. 357; 2 Williams on Executors, 1365, 1366. The doctrine of Mickley’s Appeal is not in accordance with the English decisions as to immediate gifts, if the limitation over is “ in case of death without issue ”—which is there understood as meaning death without issue whenever it may happen : but where these words are annexed to a gift in remainder, even the English cases hold that they are referable to a death without issue before the time of distribution, viz.: before the termination of the prior estate: Edwards v. Edwards, 15 Beav. 357. The question was considered by the court in banc, in the recent case of Sharpless’s Estate, 209 Pa. 409.
    The will makes no attempt to continue the trust after the interest of the children of the daughter have vested in possession at her death; and even if it did, as the trust would have no recognized legal object—the estates having vested absolutely, the legatees would be entitled to the possession- of the property discharged of the trust: Gray on Perpetuities', sec. 120.
    James M. Sommerville and Maxwell Sommerville both survived their mother, and their estates then became absolute—the share of the former passing under his will (as represented to the court), at his death in 1899, to his brother, Maxwell Sommerville. An account, it was stated, was filed by his ex-ecutoi’, which was duly adjudicated and distribution awarded to his legatees.

      JErrors assigned were in dismissing exceptions to adjudication.

      Hampton L. Carson, with him Gr. Heide Norris, for appellant.
    Intention must govern: Middleswarth v. Blackmore, 74 Pa. 414; Mickley’s App., 92 Pa. 514; Stoner v. Wunderlich, 198 Pa. 158; Sharpless’s Est., 209 Pa. 409; Jackson’s Est., 209 Pa. 520.
    There was a valid trust: Barnett’s App., 46 Pa. 392; Kuhn v. Newman, 26 Pa. 227 ; Bacon’s App., 57 Pa. 504; Earp’s App., 75 Pa. 119 ; Ashhurst’s App., 77 Pa. 464; Eley’s App., 103 Pa. 300; Livezey’s App., 106 Pa. 201.
    There is no direct gift to the children of Mary F. Sommerville. Where a will was intended to provide, not for the death of a donee, but for the death of the donee without children, the intention would be but half fulfilled if the death of the tenant for life was taken as the limit at which the donee’s title was to become absolute. On the death of the donee without children at any time, before or after the death of the tenant for life, the gift would be determined, and the fund would fall into the residue if there was no intervening donee to take it.
    In this case, the fund could not fall, because it was in the hands of the trustees for the purpose of supporting and upholding the contingent remainders; this was the clear intention of the testator, and the purpose for which the trust was created: O’Mahoney v. Burdett, L. R. 7; Eng. & Irsh App., 388.

      Peter Boyd, for appellees,
    cited: Ross v. Drake, 37 Pa. 373; Sharpless’s Est., 209 Pa. 409.
    March 6, 1905 :
   Opinion by

Mb. Justice Mestbezat,

We have carefully read and considered the extended argument of the learned counsel for the appellant, but it has failed to convince us that the decree of the court below is erroneous. On the contrary, the conclusion of the court on the questions presented for consideration is amply sustained by the opinion of the learned auditing judge and the authorities he cites.

Appellant’s counsel concede the correctness of the rule announced by the auditing judge that if a bequest be made to a person absolute in the first instance, and. it is provided that in the event of death or death without issue another legatee or legatees shall be substituted to the share or legacy so given, it shall be construed to mean death or death without issue before the testator, if the gift is immediate, hr death or death without issue during the continuance of the prior estate .where the limitation is by way of remainder. They, however, deny that the rule has any application Here because, as they allege, there is no direct gift of an absolute interest in principal to a first taker. It is, as must be, admitted that there is clearly an estate vested in Mrs. Sommerville’s children by implication arising from the limitation over in the event of the death of the children without issue. After directing his trustees to pay the semiannual income and profits of one third of his estate to his daughter, Mary Fulton Sommerville, for life and giving her a power of appointment which was not exercised, the testator in his will provides as follows : “ In case all her children shall depart this life without issue, the part or share in this my last will and testament devised to the said children of my daughter Mary shall revert to and be equally divided among my surviving heirs.” No other disposition was made of this part of the estate by the will. The testator, as will be observed, declares that he has “ devised ” this part or share of his estate to his grandchildren and provides that the gift shall not be defeated unless they “ depart this life without issue.” Appellant contends that as Mrs. Sommerville had but a life interest in the one third of the testator’s estate, the gift to her children by implication was of the same interest that she received under the will. That argument might apply with much force in support of the contention that the appointees of Mrs. Margaret S. Harding took no part of the estate, as her power of appointment under which they received absolutely the one third of the estate was limited to “ the estate devised and bequeathed ” to her, but it cannot prevail here. The implied interest or gift to the children of Mrs. Sommerville arises from the language of the will just quoted, wherein it is declared that the part or share “ devised ” to them shall revert to the testator’s surviving heirs in the event of her children dying without issue. In other words, the children were to have the “ part or share ” (the one third) of the testator’s estate bequeathed to them unless they died without issue, which, as we have seen must be construed to occur within the lifetime of Mrs. Sommerville. There is no ground for the implication that they were to take a life interest in that “ part or share ” of his estate. Such inference might have been drawn had the testator provided that “ in case all her children depart this life without issue, the part or share of this my last will and testament devised to my daughter, Mary F. Sommerville, shall revert to and be equally divided among my surviving heirs.” But, as will be observed by reference to this clause of his will, it was not the share or part of his estate given to his daughter which was a life interest only, but the part “ devised to the. said children of my daughter Mary” that the children were to have unless they departed this life without issue. The natural and necessary implication from the language employed by the testator, therefore, is that the children of Mrs. Sommerville were to take the corpus of-the one third of the estate as an absolute gift in case they survived their mother. This was manifestly the intention of the testator, and no rule of testamentary construction in this jurisdiction prevents it being carried into effect.

■ James M. Sommerville and Maxwell Sommerville were the only children of Mary Sommerville, and were both living at the time of their mother’s death. The one-third part of the testator’s estate, the income from which she had received since the testator’s death, was then vested in her two sons in possession. Thereafter they had the right to the absolute control and possession of their gift. The trustees were, therefore, relieved from any further duties relative to the property, and hence there was no longer any necessity for continuing the trust.

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


author: Mb. Justice Felu,

text:
    Walker v. Philadelphia, Appellant.

      Negligence—Municipalities—Hole in street—View by jury—Evidence.

    In an action against a city to recover damages for personal injuries, it appeared that plaintiff, in alighting from an open summer car with transverse seats, stepped from the middle of the running board at the side of the car into a hole or depression in the surface of the street and was injured. The plaintiff looked before stepping from the car. The accident happened at night on a dimly lighted street, and the hole or depression was filled with dirty water so that there was an appearance of an even street surface. The plaintiff’s testimony left it uncertain whether the hole was caused by the sinking of paving stones, or whether it was a depression for drainage and a part of the original construction of the street. The evidence on this subject was insufficient to sustain a verdict in her favor. It was conceded that the condition of the street at the time of the trial was the same as at the time of the accident. The jury visited the place, saw for themselves the condition of the pavement, and returned a verdict for plaintiff, after they had been properly instructed that the city was not liable, if the depression was a part of the original construction of the pavement. There was evidence that the hole in the pavement had been there a sufficient length of time to charge the city with constructive notice. Held, that a judgment on the verdict should be sustained.
    Argued Jan. 10, 1905.
    Appeal, No. 169, Jan. T., 1904, by defendant, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1903, No. 525, on verdict for plaintiff in case of Mary L. Walker v. City of Philadelphia.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    The facts are stated in the opinion of the Supreme Court.
    The court refused binding instructions for defendant.
    Yerdict for plaintiff for $7,500 upon which judgment was entered for $5,000, all above that amount having been remitted.

      Krror assigned was in refusing binding instructions for defendant.

      Harry T. Kingston, assistant city solicitor, with him Joseph S. Mao Laughlin, and John L. Kinsey, city solicitor, for appellant.
    A verdict should have been directed for the city of Philadelphia on the ground that the testimony did not affirmatively show that the accident was caused by a hole or break in the highway as alleged by plaintiff.
    If the depressed inlet as original^ constructed by the city was the cause of the alleged accident, there can be no recovery: Canavan v. Oil City, 183 Pa. 611; Horner v. City of Philadelphia, 194 Pa. 542; Mason v. Philadelphia, 205 Pa. 177.
    The plaintiff was guilty of contributory negligence : Robb v. Connellsville Boro., 137 Pa. 42; Shallcross v. Phila., 187 Pa. 143; Decker v. East Washington Boro., 21 Pa. Superior Ct. 211; Heiss v. Lancaster, 203 Pa. 260; Wright v. Lancaster, 203 Pa. 276; Sickels v. Phila., 209 Pa. 113.

      James K. Gorman, with him George W. Boyer, and H Gilbert Cassidy, for appellee,
    cited: Mintzer v. Greenough, 192 Pa. 137; Johnson v. Philadelphia, 208 Pa. 182.
    March 6, 1905:
   Opinion by

Mb. Justice Felu,

The plaintiff, in alighting from an open summer car with transverse seats, stepped from the middle of the running board at the side of the car into a hole or depression in the surface of the street, and was injured. The accident happened at night on a dimly lighted street and the hole or depression was filled with dirty water so that there was the appearance of an even street surface. The plaintiff’s contention at the trial was that there was a hole in the street caused by the sinking of paving stones; the city’s contention was that there was no hole but only a slight depression in the surface of the street at an inlet for the purpose of drainage and that the paving around the inlet cover and on the sides of the depression was in good condition. The only issue of fact at the trial was that raised by these contentions, and the only question presented by this appeal that need be considered is whether there was sufficient evidence to warrant a finding of negligence in failing to keep the street in proper repair.

The plaintiff’s testimony as to the condition of the street was not sufficient to sustain a verdict in her favor. She was not familiar with the place of the accident and had not been able to examine it after her injury. She knew only that as she stepped from the running board to the pavement her foot went down several inches and that the water came up to her ankle. One of her witnesses testified that two or three paving stones had sunk, leaving a hole three or four inches deep at the edge of the inlet cover. The cross-examination of this witness, while not affecting her credibility, left it in doubt whether she meant to say that the stones had sunk below the level at which they had been placed originally, or whether they had been placed three or four inches lower around the inlet when the pavement was laid. There was a failure clearly to develop by the testimony a fact essential to the plaintiff’s recovery.

This error, which otherwise might have been fatal, was cured by what took place at the trial. It was then agreed by the city that the street was in the same condition at the time of the trial that it was at the time of the accident, and by agreement of the parties the jurors were allowed to visit the place and to see for themselves the condition of the pavement around the inlet. The subject was thus submitted to the test of their observation. They were clearly and distinctly instructed by the learned trial judge that it was not their province to review the discretion of the city’s officers as to the plan adopted for drainage, and that they could find for the plaintiff only in the event that there had been a failure to maintain in a safe condition the pavement as originally laid. In view of this instruction it must be assumed that they found the defects alleged by the plaintiff’s witness to exist.

The plaintiff looked before stepping from the car and placed her foot on what appeared to be the even surface of the street. There was therefore no ground for charging her with contributory negligence.

There was testimony that the hole in the pavement had been there a sufficient length of time to charge the city with constructive notice of the defect.

The judgment is affirmed.


author: Mr. Justice Mestrezat,

text:
    Piro v. Shipley, Appellant.

      Equity—Jurisdiction—Prior adjudication of law—Injunction.

    A court of equity will restrain a threatened interference with the exercise of a right without a prior adjudication at law where the right is clear, and there is no serious dispute as to any of the material facts. It is not enough for the defendant to deny plaintiff’s right; his denial must be based upon facts which show a substantial dispute.

      Easement—Express grant—Enjoyment of easement.

    In the case of an easement by express grant, the rights and liabilities of the parties are determined by the terms of the agreement, and each has a right to insist that the terms of the agreement, be complied with, and that, so long as the easement is enjoyed, it shall remain substantially as it was at the time the right accrued, regardless of whether benefit or damages will result from a proposed change.
    A bill in equity to enjoin a change in the structure and location of an outbuilding in which plaintiff and defendants have a common easement, will be sustained where it appears that there is no necessity for the change, that the plaintiff objects to it, and that it would involve a most material and undesirable alteration in the plaintiff’s easement. In such a case the court will not only enjoin further new construction, but will decree the restoration of the outbuilding where it originally stood.
    Argued Jan. 10, 1905.
    Appeal, No. 185, Jan. T., 1904, by defendant, from decree of C. P. No. 1, Phila. Co., March T., 1903, No. 4433, on bill in equity in case of Pasquale Piro v. Samuel R. Shipley et al., Trustees of Stephen Smith, deceased; Roland R. Foulke et al., Respondents.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrbzat, Potter and Elkin, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Biddle, P. J., reported the facts to be as follows:
    1. That the plaintiff owns the property on the southeast corner of Ninth and Christian streets, known as 848 Christian street, having obtained it b}' deed dated October 28, 1899, from one D’Amico, who acquired it bjr deed dated October 2, 1889, from one D’Ambrosio, who had acquired it by deed dated September 28, 1889, from the heirs of Thomas Prentiss, deceased, who, in his lifetime, obtained it from Stephen Smith by deed dated May 21, 1867; Smith having acquired it with additional adjoining property from one David S. Brown by deed dated April 4, 1846.

      2. That in all the deeds referred to since the one dated May-21, 1867, made by Stephen Smith and wife to Thomas Prentiss, the description in the deeds have been uniform and alike, the respective grantors describing the property situate at the corner of Ninth and Christian streets as containing in front on Christian street fifteen feet and in depth along Ninth street thirty-two feet, and also contained the following grant:
    “ Together with the free and common use, right, liberty and privilege of the privy and privy well situated on the premises adjoining on the east, and the right of ingress, egress and regress of, in, to and from the same as the same is now used, occupied and enjoyed. Together with the ways, waters, watercourses, rights, liberties, privileges, hereditaments and appurtenances whatever thereunto belonging or in anywise appertaining.”
    8. That the property acquired by Stephen Smith by deed dated April 4, 1846, was a lot of ground, containing twenty feet in front on Christian street, and extending of that width in depth along Ninth street ninety-five feet. That at that time, there was erected on the lot of twenty feet acquired by him, and fronting on Christian street, a three-story brick building with a two-story brick back building, both having a width of fifteen feet, and extending southwardly from Christian street of the above width, thirty-two feet, leaving on the east side of the building as a part of the lot or piece of ground so conveyed to Smith, five feet of ground that extended southwardly from Christian street, the full depth of the building thirty-two feet, and beyond it sixty-three feet in- conjunction with the other ground obtained by Smith from Brown by that deed, which gave Smith a lot twenty feet in width, and in depth parallel with Ninth street beyond his brick building at the corner, of sixty-three feet, making his entire lot of ground ninety-five feet in depth.
    4. That nine days after acquiring the corner building of fifteen feet extending back thirty-two feet, and the lot of ground upon which said building was erected of twenty feet by ninety-five feet, Stephen Smith obtained from one Edward Johnson by deed dated April 13,1846, a lot or piece of ground (adjoining his previously acquired lot on the east) described as situated on the south side of Christian street at the distance of twenty feet east of Ninth street, and extending of that width in depth southwardly ninety-five feet, upon which there was a frame building, which was afterwards torn down or removed between April, 1846, and his conveyance to Smith in 1867.
    6. That between April, 1846, and Smith’s conveyance to Thomas Prentiss in 1867, a period of more than twenty-one years, Smith removed the frame building upon the lot of ground he acquired of Edward Johnson, and erected two three-story brick buildings now known as 844 and 846 Christian street, constructing a separate western wall for 846 Christian street close to, if not directly up and against, the eastern wall of the brick building of the corner property acquired from Brown known as 848 Christian street, which was then Smith’s property, but now belongs to the plaintiff.
    6. That the plaintiff’s property at the corner of Ninth and Christian streets, built prior to 1846, never had a chimney in it for the use or convenience of its owners, tenants or occupiers.
    7. That in building the two three-story brick buildings, now known as 844 and 846 Christian street, Stephen Smith used the twenty feet in front of the ground he acquired from Johnson, and also the five feet or unoccupied piece of ground that he acquired from Brown before acquiring Johnson’s lot, and which adjoined the corner property on the east, in constructing the new three-story brick building 844 and 846, he left an open space for an alley between those two houses, which he built to form the second floor of one, or a part of the second floor of both of those houses, and had the alley to extend from Christian southwardly the depth of his new brick buildings about twelve feet, and at the southern end of the alley he constructed a party fence between those two properties with a gate on either side opening into each of the yards, and this fence extended southwardly to a brick privy or outhouse erected on the rear end of his three lots that fronted on Christian street. This brick privy or outhouse was constructed to form three apartments or separate in closures, so that there should be one for each one of his three lots, viz.: one with a separate door on the east side of the fence for the use of 844 Christian street, and two on the west side of the fence with separate doors and apartments as stated, for the use of 846 and 848 Christian street, the latter being the corner property owned by the plaintiff as above stated. The cloor for the plaintiff’s apartment or inclosure in this brick privy or outhouse was located about nine feet eastwardly of the kitchen door of plaintiff’s property leading into the yard that had been formed by the fence referred to, and about three feet southward from that kitchen door. In this fence erected by Smith, he also put a hydrant with a turning spigot or nozzle, so that the same could be used by the occupants of the properties on either or both sides of the fence. The plaintiff’s property had no other yard than that formed by the fence which left an open space between it and the plaintiff’s house to be used in common with 846, and plaintiff’s property 848 Christian street, that yard having been made of part of the five feet of ground that was originally conveyed with the corner property in the deed from Brown to Smith.
    8. That the physical condition, appearances and uses of said fence, hydrant, brick privy or outhouse as last above described, were the conditions, appearances and uses of the three properties at the time Stephen Smith conveyed to Thomas Prentiss in May, 1867, and they remained the same without any interruption from that time until the month of May or June, 1903, when the trustees under the will of Stephen Smith, who had died in 1874, undertook to alter and improve the properties known as 844 and 846 Christian street, and in doing so tore down and destroyed the brick privy or outhouse referred to; had the well thereunder filled up, and disturbed plaintiff’s use of the chimneys that he and his predecessors in the title had been using; removed the hydrant and the fence referred to, erected a small' frame water-closet in the place of the old brick privy or outhouse, putting the new frame water-closet and hopper connected with underground drainage for the sole use of the plaintiff, located at the distance of about four feet east of the plaintiff’s building, and about four or five feet from the plaintiff’s kitchen door, and propose and threaten to construct a fence across the open space extending from said kitchen door diagonally to said water-closet so as to confine the plaintiff, his property and his use of the same to the limited space inclosed within said new fence to be erected, whereby the plaintiff will be deprived of the use of the yard that has been enjoyed in common with the owners, tenants and occupiers of the property 846 Christian street for more, than thirty-six years, and also will be deprived and prevented from enjoying the free ingress, egress and regress in, to and from the well granted to him, and to the said Thomas Prentiss in 1867, and uninterruptedly enjoyed since that time.
    9. The eastern wall of plaintiff’s corner property was less than nine inches thick (it was built before 1846, and before the passage of the act of assembly regulating the thickness of walls of buildings passed May 7, 1855, sec. 8, P. L. 464), and when the building was erected, it was constructed without any chimney, but, being then in a rural part of the country, and having an open space curtilage to and a part of the lot upon which the building was erected (of not less than five feet according to the deeds), chimneys could then be dispensed with, and stoves used without them.
    10. That the wall was less than nine inches thick.
    11. When Stephen Smith, the owner of the three properties 844, 846, 848 Christian street, erected the two small three-story brick buildings, 844, 846 Christian street before 1867, he appropriated, used, and took from the corner property (848 Christian street) its curtilage of five feet of ground, and open space to the east of it and built No. 846 Christian street up against the eastern wall of the corner property 848 Christian street, deprived of its yard or ground on the east (cut off its original natural resources, doubtless used as substitute for chimneys), made the alley, erected the fence, dug privy well (over which was erected a large brick house with the three inclosures above mentioned), and placed the hydrant in the fence as described among the “undisputed facts.”
    12. It must be concluded that Stephen Smith, who had owned the corner property 848 Christian street from April 4, 1846, knew that that property possessed no chimneys, and, being deprived of its natural outlet on the east in constructing the wall of 846, he so constructed it that the chimneys of that building were placed on its western side, so that they could be utilized and used for both of his properties, 846 and 848 Christian street, connected with openings in each house united by terra cotta pipes.
    13. The right to use the alley, the hydrant and the chimneys, in addition to the privy provided for by express grant in the deed, was, and is, part of the appurtenances granted by the deed from Smith, to Prentiss, and to the subsequent owners of the title down to the time of the disturbance by the defendants is clearly established by the testimony.
    14. Miss Anna A. McPeak, a school teacher (in no wise interested in the case), over forty-five years of age, whose father was an alderman, and who moved into the corner property in 1856, testified that she was born in that house, and lived there until 1877 or 1879, and states most positively that she lived there over twenty years, and “ that the alley, the hydrant, the privy and chimneys were a part of our propert3r, (meaning the corner property of 848 Christian street), and used as such.” Without referring to her testimony concerning the brick privy or outhouse, about the existence of which there is no dispute by the defendant, in speaking of the hydrant, the witness, after indicating on the plan where the hydrant stood, said it was right on a line with the houses on Christian street. The alley proceeded from the back door of the two houses on Christian street as marked in the red lines on the plan. “ I always used that alley when I lived there; was never interfered with and never interfered with in the use of the chimneju.” So clear, positive and uninterrupted was the use of the chimney erected on the adjoining property by the corner property that this witness did not know that the chimneys were not built in her (corner) house.
    On cross-examination, she said: “We used the yard in common. There was only one yard for two houses, and one hydrant for three houses. I am quite sure that I lived in the property at the corner. Stephen Smith owned the property and sold it to my uncle, Thomas Prentiss; my father rented from Stephen Smith (this was when he first went there in 1856). When Stephen Smith sold the property to my uncle (this was in May, 1867), my father still stayed there and lived there a number of years after that. It was my uncle’s property ; we lived there ; we did not rent; we were not tenants. I lived in my uncle’s property from 1857 to 1879.”
    15. The testimony of Anna A. McPeak clearly establishes the plaintiff’s claim as to the use of the alley, hydrant, chimneys and brick privy. She is corroborated about the use of the hydrant, the alley and the privy well by the different witnesses for plaintiff, viz:

      16. Guiseppe Pasquarella, who was familiar with the property and. its uses after Miss McPeak vacated it, down to the present time, or for a period of twenty-four years. This witness, although a frequent visitor to the house, had never paid any attention to the chimneys, and had no personal knowledge about them. He testified, however, that eighteen years ago, the corner property was used as a saloon, and the alley was used as a passageway from Christian street, to the back door of the corner (saloon) property, and for the purpose of carrying in and out the beer, ashes, and whatever uses the people saw proper to make of it.
    17. Frank Rose, another witness for the plaintiff, who was superintendent of a gang of Italian street cleaners, and who has known the property for over twenty-seven years, testified to the use of the alley and the hydrant, and that when the property was occupied as a saloon, he and hundreds of others would use the alleyway as a part of the saloon property. That the saloonkeeper told them to go up the alley; that it was for his (the saloonkeeper’s) use. He also testified as to the common use of the hydrant for the property.
    18. Donato Panzello, another witness for plaintiff, who has known the property for twenty-five years, lived at 844 Christian street, saw the saloonkeeper’s wife go up and down the alley, and made common use of it. That the property ceased to be a saloon when the Brook’s High License Law went into effect.
    19. Emelio Conte testified that he accompanied the plaintiff’s grantor, one D’Amico, about the time he purchased the corner property, which was in 1889, to the premises in question; went over the property in company with the then owner, one D’Ambrosio, who spoke of the chimneys and the hydrant, the latter being in the center of the yard, and of which the then owner in possession of the property, in selling to his grantee, said, “ This will be used for all three, because this is three houses. You can have your part, and the other, side to use it, too: ” and, in speaking of the privy, he said : “You can have this for your own use; ” and, in answer to the question as to whether the then owner went up and down the alleyway, he replied, “You can have the right to pass through the gate.”
    20. The plaintiff, in testifying for himself, after describing the property and his rights in connection with his deed, also testified to the interference of his rights by the defendant.
    21. Michele Palmiro, a barber, who has known the property for eleven years, being a frequent visitor to it, going there at least once a week for the past eleven years, in speaking of the chimney, said : .“ The pipe holes were located when the building was put up, because they could not take a chisel to form it.”
    22. The defendants called seven witnesses, three of whom were defendants in the case, but none of this testimony militates against the direct testimony of the plaintiff as to the uses of the alley, hydrant and chimney. All of the defendants’ testimony is of a negative character; the witnesses testifying simply that they knew nothing about these uses; had not observed or seen them exercised. The testimony about the gate being erected at the end of the alley in no wise contradicted the plaintiff’s testimony, nor does it militate against it in the slightest way. There is not a word of testimony to show that the plaintiff and his predecessors in title had not the right to use the alley, hydrant, chimneys and privy as testified to by Miss McPeak, and as confirmed by the other witnesses as to the actual use of the premises.
    The defendants undertake to claim the right to destroy the brick privy well, and put up a smaller wooden or frame building upon a different site from that upon which the old brick one had stood for so many years, placing it nearer the plaintiff’s kitchen door, and cut off his use of the yard after giving him modern improvements of a hopper and underground drainage whether he desires it or not; the defendants claiming the right to impose the same as improvements upon plaintiff against his will; they contending that they had a right to substitute the new for the old, and make the proposed change as a part of the rights conferred upon them under the law in construing the deeds and grants concerning the said privy and well.
    There is no evidence on the part of the defendants that there was any necessity for any such change. They claimed the well to be full and foul, the brick building of the privy to be in a dilapidated and dangerous condition, but they presented no evidence to show that there was any necessity or requirement of any paramount authority to make the change, or that it was dictated by anything more than their own notion that it should be made.
    The court entered a decree: That the respondents, their employees, servants and agents be and they are hereby enjoined from in any manner interfering with or in any wise disturbing the complainant’s quiet use and enjoyment of the chimney, alley and hydrant situate on the respondents’ premises Nos. 844, 846 Christian street, as they were prior to the alterations complained of in the bill, and that the respondents be and they are hereby directed to forthwith restore the privy and privy well situate on said premises 844, 846 Christian street, to the same condition, appearance, location and use that they were in before the acts complained of in the bill.

      Error assigned was the decree of the court.

      Roland R. Eoulhe, for appellants.
    A court of equity has no jurisdiction to determine a legal title which is in dispute: Mowday v. Moore, 133 Pa. 598; Rhea v. Forsyth, 37 Pa. 503; Coward v. Llewellyn, 209 Pa. 582.
    The respondents had a right under the terms of the grant from Smith to make the alterations complained of: Atkins v. Bordman, 43 Mass. 457; Olcott v. Thompson, 59 N. H. 154.
    If no legal right and no justification exist, still no mandatory injunction can issue, as the damage and inconvenience to the respondents by granting the injunction would be greater than the damage and inconvenience caused the complainant hy with holding it: Sullivan v. Steel Co., 208 Pa. 540; Huckenstine’s App., 70 Pa. 102.

      J. Hibbs Buclcman, of Hopple Buchman, for appellee.
    The claim of right by appellants to interfere with the appellee’s easement and privy well by the entire destruction of that right and the substitution of anything new that the appellants proposed to force the appellee to accept, even under the cloak or cover of improvement, has been disposed of by the cases of Ellis v. Academy of Music, 120 Pa. 608; Bank v. Reighard, 204 Pa. 391; Mershon v. Fidelity Ins., etc., Company, 208 Pa. 292.
    March 6, 1905 :
   Opinion by

Mr. Justice Mestrezat,

Under the testimony- there can be little or no dispute as to the facts in the case, which have been fully and correctly found by the learned trial judge; and his conclusions of law are amply sustained by the numerous authorities he cites. Little need be said in vindication of his decree.

We agree with the learned counsel for appellants that a court of equity has no jurisdiction to restrain by injunction an interference with a legal right which is in doubt and rests upon disputed questions of fact. Before a party can invoke the aid of a chancellor in such cases, he must' have his right determined in an action at law. But it is equally well settled in this jurisdiction, that a court of equity will restrain a threatened interference with the exercise of a right without a prior adjudication at law where the right is clear and there is no serious dispute as to any of the material facts. Both of these propositions are so well settled that no authorities need be cited to sustain them. Here, the right of the plaintiff to the use of the outhouse as originally located, the alley, the hydrant and the chimney, as averred in his bill, was so conclusively established by the testimony that there could be no serious dispute concerning it. The answer, it is true, denied some of the material averments of the bill, but the testimony disclosed no facts to sustain such denial, and hence was not sufficient to oust the jurisdiction of the chancellor. “ It is not enough for the defendant to deny the plaintiff’s right,” says the court in Miller v. Lynch, 149 Pa. 460, “ his denial must be based upon facts which show a substantial dispute. The facts found by the master show that the plaintiff’s right to the use of this alley in the manner claimed by him was entirely clear. It would have been useless to send the case to a jury to settle a question of fact which is not of a tangible nature.”

The appellants further contend that they had the right to make such alterations in the structure, form and location of the outbuilding as might be necessary for the improvement of their estate and the abatement of a nuisance, so long as they did not materially interfere with the uses of the building by appellee. The rule in such cases is stated in 10 Am. & Eng. Ency. of Law (2d ed.), 428, as follows: “ In the case of an easement by express grant, the rights and liabilities of the parties are determined by the terms of the agreement, and each has a right to insist that the terms of the agreement be complied with, and that, so long as the easement is enjoyed, it shall remain substantially as it was at the time the right accrued, regardless of whether benefit or damage will result from a proposed change.” Here, again, are the appellants confronted with the facts and they render it unnecessary to determine the question their counsel suggests. The trial judge finds that there whs no necessity for a change in the structure or location of the outbuilding and “ that it was not dictated by anything more than their own notion that it should be made.” But it also clearly appears from appellants’ own admissions that the proposed alteration of the house would have been most material both as to the structure and its location. The old building was a brick structure and its door was about nine feet east, and three feet south, of the door of the appellee’s kitchen, whereas the new building was wooden or frame and its door was within three or four feet of the kitchen door. The appellee had the right to have the outbuilding located at the distance of the original building from his house with the right of passage over the intervening space, and the erection of the new building within a step of liis kitchen door Avould be a substantial, as well as a most material and undesirable, alteration or change in his easement. As suggested by the trial judge, if the defendants wanted to improve their property by the erection of brick closets, they should at least have put them near the site or location of the old, and not bring any one of them nearer to the plaintiff’s house or kitchen door.” It is also suggested by the appellants that the change in the old building was justified because of the order of the board of health, but, as found by the trial judge and' not excepted to, they presented no evidence to show that there was any necessity or requirement of any paramount authority to make the change.”

It is further argued by the appellants that the trial court should not have decreed the restoration of the outbuilding because “ the damage and inconvenience to the respondents bjr granting the injunction would be greater than the damage and inconvenience caused to the complainant by withholding it.” It is sufficient to say in reply to this suggestion that the facts as found by the trial court do not warrant this allegation by the appellants. On the other hand, damages recoverable by law for the invasion of the appellee’s rights would be clearly inadequate and his injury permanent and irreparable, and hence the court should give him adequate relief by requiring the appellants to restore the property to the condition in which it was when they destroyed it.

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


author: Mr. Justice Fell,

text:
    McKee v. Harrisburg Traction Company, Appellant.

      Negligence—Proximate and remote cause—Unforeseen consequences.

    When an act is clearly negligent, one may 'be held liable for its unforeseen consequences, however remote, which follow in the natural sequence of events; but an act cannot be held to be negligent when there is no reasonable ground for supposing that it would cause injury to anyone.

      Negligence—Sudden and unexpected duty—Notice.

    Negligence cannot be imputed because of the failure to perform a duty so suddenly and unexpectedly arising that there is no opportunity to comprehend the situation and act according to the exigency.

      Negligence—Street railways—Use of electricity.

    The use of electricity as a motive power by street railway companies has increased the danger to all persons using city streets, and of this danger they must take notice. Rapidity of transit is no longer a mere convenience to the traveler, it has become a matter of vital interest to the general business of the community.

      Negligence—Street railways—Speed of car—Sudden emergency—Bicycle.

    In an action against a street railway company to recover damages for personal injuries, it appeared that plaintiff was riding in the daytime a bicycle on a street on which the defendant operated an electric railway. Behind him a man was riding a horse at a slow trot and leading another horse, for the purpose of accustoming them to the electric cars. Fearing injury by the horses the plaintiff turned aside and allowed them to pass by him, and then followed twenty or twenty-five feet béhind them. When about the middle of the block the led horse showed some evidence of fright at an electric car which approached from the opposite direction, and as the car was about to pass or in the act of passing it turned towards the curb and blocked the passage between the curb and the car tracks. The plaintiff, to avoid running into the horse, rode towards the track. When close to it he saw an open summer car approaching and within twenty feet of him. He then attempted to turn and ride between the car and the horses. He did not get far enough from the track, and the front wheel of his bicycle was struck by the running board of the car. The plaintiff did not see the car until he was within six inches or a foot of the track and approaching it. Until this time the motorman had no opportunity to see him because he was behind the horses. When the horse shied the motorman turned off the power and as he passed the horses be had his hand on the brake and was watching them to see whether they were under control. The only matter of dispute at the trial was as to the rate of speed of the car. In regard to this there was a difference of opinion, but there was testimony tending to show that the car was running fifteen or twenty miles an hour. Held, that there was not sufficient negligence on the part of the defendants to submit to the jury.
    Argued Jan. 19, 1905.
    Appeal, No. 3, May T., 1904, by defendant, from judgment of C. P. Daupliiu Co., June T., 1903, No. 487, on verdict for plaintiff in case of James T. McKee v. Harrisburg Traction. Company.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Elion, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Weiss, P. J.
    The particulars of the accident are stated in the opinion of the Supreme Court.
    The court refused binding instructions for defendant.
    Verdict and judgment for plaintiff for $5,000. Defendant appealed.

      Error assigned among others was in refusing binding instructions for defendant.

      Charles L. Bailey, Jr., with him Le Roy J. Wolfe, for appellant,
    cited: McCracken v. Traction Co., 201 Pa. 378; Moser v. Traction Co., 205 Pa. 481; Gould v. Traction Co., 190 Pa. 198; Thane v. Traction Co., 191 Pa. 249 ; Davison v. Traction Co., 10 Pa. Superior Ct. 442; Yingst v. Ry. Co., 167 Pa. 438 ; Smith v. Holmesburg, etc., Electric, Ry. Co., 187 Pa. 451.

      W. M. Uargest, of Uargest Uargest, for appellee,
    cited : Oehmler v. Pittsburg Railroad Co., 25 Pa. Superior Ct. 617; Malone v. R. R. Co., 152 Pa. 390 ; Cannon v. Traction Co., 194 Pa. 159; Ayers v. Ry. Co., 201 Pa. 124; Hookey v. Oakdale Borough, 5 Pa. Superior Ct. 404; Shaughnessy v. Traction Co., 17 Pa. Superior Ct. 588; Quinn v. Electric Ry. Co., 7 Pa. Superior Ct. 19; Wood v. R. R. Co., 177 Pa. 306 : Quinlan v. Phila., 205 Pa. 309 ; Yoders v. Amwell Twp., 172 Pa. 447 ; Thatcher v. Traction Co., 166 Pa. 66; Sturgis v. Kountz, 165 Pa. 358; Penn. R. R. Co. v. Hope, 80 Pa. 373.

      March 6, 1905 :
   Opinion by

Mr. Justice Fell,

On a Sunday afternoon in July the plaintiff was riding on a bicycle on a street in Harrisburg on which the defendant’s electric cars ran. Behind him a man was riding a horse at a slow trot and leading another horse, for the purposé of accustoming them to the electric cars. Fearing injury by the horses the plaintiff turned aside and allowed -them to pass by him, and then followed twenty or twenty-five feet behind them. When about the middle of the block the led horse showed some evidence of fright at an electric car which approached from the opposite direction, and as the car was about to pass or in the act of passing it turned towards the curb and blocked the passage between the curb and the car tracks. The plaintiff, to avoid running into the horse, rode towards the track. When close to it he saw an open summer car approaching and within twenty feet of him. He then attempted to turn and ride between the car and the horses. He did not get far enough away from the track, and the front wheel of his bicycle was struck by the running board of the car. The plaintiff did not see the car until he was within six inches or a foot of the track and approaching it. Until this time the motorman had no opportunity to see him because he was behind the horses. When the horse shied the motorman turned off the power and as he passed the horses he had his hand on the brake and was watching them to see whether they were under control. The only matter of disputé at the trial was as to the rate of speed of the car. In regard to this there was the usual difference of opinion, but there was testimony tending to show that the car was running fifteen or twenty miles an hour.

Three grounds of negligence were alleged: That the car was not equipped with suitable appliances for stopping it; that it was in charge of a motorman known to the defendant’s officers to be habitually careless; that the excessive speed of the car frightened the horses and prevented the plaintiff from escaping from his perilous position behind them. Of the first two there was no proof and we find nothing in the testimony in relation to the third that would warrant a finding by the jury that the accident was caused by the motorman’s negligence. The car was running rapidly. It is intended that electric street cars should run rapidly. The use of electricity as a motive power by street railway companies has increased the danger to all persons using city streets and of this danger they must take notice. “ Rapidity of transit is no longer a mere convenience to the traveler, it has become a matter of vital interest to the general business of the community: ” Thane v. Traction Co., 191 Pa. 249. The car was at the middle of the block with a clear track and it was not shown that its speed was improper. Aside from the merest conjecture of two or three witnesses, there was nothing in the case from .which it could be inferred that the speed caused the horses’ fright. But if we assume that a rapidly moving car is more likely to frighten a horse than a slowly moving one, there was nothing to indicate to the motorman that the high speed might be a danger to anyone. The horses had been brought to the street frequently before to train them, and on these occasions he had not been signaled to slow up as he passed them. Neither he nor the man in charge of the horses apprehended any trouble from them, but to guard against the possibility of it he watched the horses’ actions and turned off the power, keeping his hand on the brake so as to be able readily to control the car. The accident cannot be attributed to the speed of the car unless we assume that the speed caused the horses’ fright and prevented the plaintiff’s escape after he had committed the mistake of getting too near the track. If we accept both of these assumptions the defend-, ant cannot be held liable unless we further assume that the motorman should have anticipated what had not before occurred, the fright of the horse and the blocking of the passageway, and that some one riding close behind the horse wmuld turn toAvards the track instead of stopping or turning toward the curb. This would be the building up of a case by assumption and inference instead of by the affirmative proof of negligence which the law requires. True, when an act is clearly negligent one may be held liable for its unforeseen consequences, however remote, which follow in the natural sequence of events. But an act cannot be held to be negligent when, as in this case, there was no reasonable ground for supposing that it would cause injury to anyone.

There was no negligence on the part of the motorman in not sooner stopping the car. He had no chance to stop it. If the speed was that testified to by the plaintiff’s witnesses, the collision occurred in less than a second after he could have seen the plaintiff. Negligence cannot be imputed because of the failure to perform a duty so suddenly and unexpectedly arising that there is no opportunity to comprehend the situation and act according to the exigency: Hestonville, etc., Pass. Railroad Co. v. Kelly, 102 Pa. 115; Phillips v. Railway Co., 190 Pa. 222. In Funk v. Traction Co., 175 Pa. 559, a boy ran diagonally across the street and suddenly came in contact with a rapidly moving car. It was said in the opinion: “■ It was not the speed of the car that caused the injury, but the sudden and unexpected act of the plaintiff in running against the car, if such were the fact, that occasioned the accident. There was not opportunhy to guard against it, and hence no breach of duty.” Kline v. Traction Co., 181 Pa. 276; Pletcher v. Traction Co., 185 Pa. 147 ; Miller v. Traction Co., 198 Pa. 639, and many other cases, in which children suddenly ran 'in front of or against rapidly moving cars, were decided on the same ground.

The eighth assignment of error is sustained and the judgment is reversed, and judgment is now entered for the defendant.