text:
    Crane v. Pennsylvania Railroad Company, Appellant.

      Negligence — Railroads—Grade crossings — “Stop, look and listen”— Contributory negligence.

    It is the duty of a railroad company in the running of its trains, to exercise care according to the circumstances, and when the railroad track crosses a much traveled street or highway, the company is bound to exercise a degree of care commensurate with the danger; to give some sufficient notice of the train’s approach, and to moderate the speed of the train to such rate as, under the circumstances, is reasonably consistent with public safety.
    In a case'against a railroad company to recover damages'for personal injuries or death at a grade crossing, where there is a disagreement among the witnesses as to whether a bell was rung, the question whether the failure to ring a bell is negligence, is a question for the jury to determine from all the circumstances in the case.
    In such a case where there is evidence that the deceased stopped, looked and listened, before going upon the track, but the evidence is conflicting as to the place at which he stopped and as to the manner in which he started to cross, it is for the jury to determine, under the proper instructions of the court, whether the deceased did all that he was.bound to do upon the situation as he found it, and the circumstances in which he was placed.
    Argued May 7, 1907.
    Appeal, No. 90, Jan. T., 1907, by defendant, from judgment of C. P. Warren Co., Sept. T., 1906, No. 21, on verdict for plaintiff in case of Pauline Z. Crane v. Pennsylvania Railroad Company.
    Before Pell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for death of plaintiff’s husband. Before Lindsey, P. J.
    The opinion of the Supreme Court states the case.
    The court charged in part as follows :
    ‘On May 25, 1906, the husband of the plaintiff in this case, Pauline Z. Crane, was killed while attempting to cross the Philadelphia & Erie Railroad, run and managed by the Pennsylvania Railroad Company, at Spring Creek, in Warren county. The suit is brought by Pauline Z. Crane, the wife of the deceased, and by her son.
    It would appear from the uncontradicted testimony in the case that the defendant’s employees were running an engine, which passed along by the Spring Creek station some time in the forenoon of May 25. The engine had been to Corry to help a freight train on the up-grade between Warren and Corry, and ivas returning to Warren with the engineer and fireman, who had charge of the engine, and was backing at the time of the accident.
    Now, gentlemen of the jury, the plaintiff has offered testimony tending to show that the deceased, Mr. Crane, came up this road, which runs parallel to the railroad tracks, and turned down on the road which crosses the railroad tracks. And the plaintiff’s testimony tends to show that after passing a little below or southerly from Donaldson’s store, he stopped and looked and listened, and the plaintiff has called quite a large number of witnesses who testified to that fact. They have also, more or less of them, testified to what they could see from that point, looking up the track, or westward towards Corry on the track. And some of them tell you that looking back of the depot, which would be northerly from the depot, and across the point of the hill, which comes down westerly of the depot, they could see the track for about 300 feet, and others put it less. I do not remember of any of them putting it more than that. And they mention the number of cars that they could see on the track, looking westward from the point where they saw the deceased stop. Evidence is .given by the plaintiff also to show that that was the usual place where people, traveling the public road, stopped to look and listen. And some evidence is given to show that at no other point, going from that point towards the railroad tracks, could they see the track, looking westward, until after they passed the corner of the depot, and I do not remember of any evidence which showed that they could see up the tracks, and see the tracks, until after they passed the corner of the railroad depot. 'If there is any, gentlemen, you will recall it.
    The evidence shows that the deceased, Mr. Crane, passed along down on his wagon, was sitting back on the brake or hounds of the wagon, at the rear end, drove along towards the crossing — the evidence of the plaintiff I am speaking of now — and as he drove towards the crossing some of the testimony shows that he was looking up the track. I believe there is no evidence which shows that he stopped after the point below Donaldson’s store, but there is evidence to show that he looked up the track before attempting to cross .the track, but not that he stopped his team.
    Now it is claimed on the part of the plaintiff that the railroad company was negligent in the rapidity with which its employees ran the engine at that time, and also that it was negligent in not giving the proper signals that should be given in approaching a station like Spring Creek, and where there was a crossing at or near the railroad station. Now we call your attention, gentlemen, to the evidence generally on that point, without going over it all, or going over what each witness testified to.
    The engineer testifies that he blew the whistle back near the whistling post, one long blast, and that he blew the signals, four for the block, which was a signal to the operator to give him the block. lie testified that those were blown. And he testified that the bell was rung all the way down along there, after the whistles were blown. And, if I remember correctly, the fireman corroborated him in these respects. Others were called, who testified to hearing the long blast of the whistle, and some others, if I remember correctly, testified to hearing the other blasts, which was a signal to the operator for the block. You will remember how many there were, and their testimony exactly. And I thinic some of the witnesses called on the part of the defendant testified to the ringing of the bell. That, gentlemen, is for you, and you will recall who they were, and how many of the witnesses.
    Now, gentlemen of the jury, we say to you, as a matter of law, that it was incumbent upon the railroad company that these signals should be given there. That is, the usual signal which is given in approaching a depot should be given, and that is, as stated by the railroad employees, one long blast, and there does not seem to be much dispute between the plaintiff’s and defendant’s witnesses but what that was given. The point where it was given the witnesses differ about somewhat.
    Now, gentlemen of the jury, we say to you that if a whistle was blown there, it would be no matter what kind of a whistle, how many blasts, it would be notice to anybody, attempting to cross, that a train or engine was coming, and would be a warning to anybody who was attempting to cross.
    [There is some evidence that the bell was not rung. If you find it was not rung, that would be an element of negligence on the part of the defendant company.] [4]
    Now, gentlemen, your first duty will be to direct your inquiries as to the testimony in regard to negligence of the defendant. If the defendant was not negligent in the warning of the engine there that day, there could be no recovery by the plaintiff, and you would not have to go any farther in your investigations, but if you find from all of the evidence, taking-all the evidence into consideration, that the defendant was negligent, in respect to not giving the proper signals, or the question of rapidity of running, which may also be taken into consideration by you, and you have heard the testimony on that subject, if you find that the defendant was negligent, then it is your duty to go farther and determine whether or not there was any negligence on the part of Mr. Crane there, in crossing the road, or attempting to cross the railroad, which contributed in any way to his death.
    And we say to you, as a matter of law, that it is the duty of any person, and was the duty of Mr. Crane that day, to stop, look and listen, before attempting to cross the railroad track. That is the imperative, binding rule of law upon everybody, before attempting to cross a railroad track, to stop, look and listen.
    Now, you heard the evidence in relation to Mr. Crane’s stopping just after he passed Mr. Donaldson’s store, and looking and listening, and the testimony is, as I remember it, that that was from sixty to seventy feet from the railroad tracks. The majority of the witnesses put it, if I recollect right, about seventy feet, but perhaps it ranged from fifty to seventy feet.
    Now, was that the usual place where a team stopped, and was it the place where Mr. Crane could get the best view westerly, up the railroad track, the direction from which this engine was coming ? If that was the best place and the usual place, he discharged his duty by stopping and looking and listening there, if you find that he did stop and look and listen. ITis duty is not wholly discharged by stopping and looking and listening at the usual place; he must continue his vigilance until he gets across, the railroad ■ track. And it was his duty to look, and not only his duty to look, but to stop again if necessary. And the authorities say that if he cannot see without it, he must get off and go ahead of his horses, where he can see, and take those precautions. And it is for you, gentlemen, to take these matters all into consideration. Did he do that ? If he did not do it, it is for you to say whether or not he was guilty of contributory negligence.
    The evidence, as I remember it, shows that he did look, he continued to look, but I do not remember any evidence that he either stopped, listened or got off of the wagon. But this question of whether or not he was guilty of contributory negligence is for you. But we say to you that that is the law, that it is necessary for him to take these precautions before crossing a railroad track. - Now, gentlemen of the jury, take the evidence all into consideration, the evidence of the defendant’s witnesses on the subject of contributory negligence, as well as those of the plaintiff’s, and determine from all of the evidence in the case.
    I call your attention further to the situation, as shown by the testimony, past the corner of the depot. As I remember the evidence, it was about twenty-five feet from the corner of the depot to the railroad track. And there is evidence, on part of the defendant, that from a point a little south from the corner of that depot, from the place where the witnesses stated that they could see, that they could see up the track for quite a long distance; they put it from 500 feet to 800 feet, as I remember the testimony, that they could see up the track from those various points there, between the depot and the railroad track, where he looked.
    If you find that he was not guilty of any negligence which contributed to his death, then he would be entitled to recover, if the railroad company was guilty of negligence. And if you come to the question of recovery, then you must consider his earning power. [Now, gentlemen, the law does not give you any definite means of measuring or determining that. You must determine it as best you can from the age of the decedent, who was fifty-five years old,] [3] and what you consider from the evidence that you have heard his earning power would be for the time which he might probably live. Sometimes mortuary tables are given as to the average length of time that a man would live (or what would be the average mortality of persons of that age), but this has not been given in this case, and you will have to figure it out for yourselves, if you come to that question, and you must use judgment and care if you reach that question, gentlemen, and figure out in a business-like way what would be his earnings per year for the period which you come to the conclusion might be an average period of a man’s life who had reached that age. And you may take into consideration the health and physical constitution of the man, as shown by the testimony in determining that question, and what evidence has been given in relation to his earning power.
    Defendant presented these points :
    4. The evidence of witnesses on the part of the plaintiff, who testified to not hearing the engine whistle, unless there were such circumstances that would call their attention to this fact, would he negative testimony, and if the jury find from the evidence that a number of witnesses on the part of the defendant testified to the fact of hearing the whistle blown, and also the bell on the engine ringing for this crossing, being positive evidence as against negative testimony, their verdict should be for the defendant. Answer: This, gentlemen, is answered in the affirmative, all except this last clause, “ their verdict,” etc. [1]
    8. Under all the evidence the verdict should be for the defendant. Answer: This point is refused and the evidence is referred to you under the instructions which we have given you. [2]
    Yerdict and judgment for plaintiff for $7,750. Defendant appealed.

      Errors assigned were (1, 4) above instructions, quoting them.

      J. Boss Thompson, of J. Boss Thompson & Son, for appellant.
    One witness, who hears the ringing of a bell, is worth more than a dozen witnesses who did not hear it: Urias v. Penna. R. R. Co., 152 Pa. 326.
    Proof of excessive speed at a crossing, when accompanied by exhibition of facts, showing proper safeguards for the customary and ordinary use of the crossing,, is insufficient to take a case to the jury on the question of negligence: Custer v. Baltimore & Ohio R. R. Co., 19 Pa. Superior Ct. 365.
    Ye contend that there was such contributory negligence on the part of David Crane, deceased, .the husband of the plaintiff, as would defeat the right of recovery : Penna. R. R. Co. v. Beale, 73 Pa. 504; Kinter v. Penna. R. R. Co., 204 Pa. 497; Gray v. Penna. R. R. Co., 172 Pa. 383; Blotz v. Lehigh Valley R. R. Co., 212 Pa. 154; Sellers v. By. Co., 214 Pa. 298; Mankewicz v. R. R. Co., 214 Pa. 386; Urias v. Penna. R. R. Co., 152 Pa. 326; Harvey v. Erie R. R. Co., 210 Pa. 95; Carroll v. Penna. R. R. Co., 12 W. N. C. 348; Gangawer v. Phila. & Reading R. R. Co., 168 Pa. 265.

      L). IT. Arird, with him Edward S. Lindsey, for appellee.

      June 3, 1907:
   Opinion by

Mr. Justice Stewart,

The plaintiff’s husband was killéd by a passing engine while attempting to cross the tracks of the defendant company at a public crossing with his team. The negligence charged in the statement was as follows : “ And the said defendant, through the carelessness and negligence of its servants and employees on aforesaid date, to wit: May 25, 1906, carelessly, wrongfully and negligently ran or drove one of said defendant’s engines rapidly, without giving warning, over and across said public highway at the crossing aforesaid, so that the said David Crane on said date, to wit: May 25, 1906, while passing along and upon said road or highway at the crossing aforesaid, using due care and caution, was struck,” etc.

If we are to give the words here employed nothing beyond their exact and literal meaning, the charge of negligence was fully met and answered by the testimony of plaintiff’s own witnesses, for a number of them testified that a signal by whistle was given at the accustomed place. A strict construction would make the charge mean that no warning whatever was given; but it was evidently intended to charge that no adequate or sufficient warning as measured by the duty of the defendant under the circumstances was given. The learned trial judge so understood it; the case was tried on this theory, and the absence of exceptions shows the defendant’s acquiescence. Defendant’s fourth point, the refusal of which is the subject of the first assignment of error, was not directed to this feature of the case; it had reference, not to the charge of negligence contained in the statement, but to the law of the case, and was properly refused. The distinction made in the point between positive and negative testimony was correct enough, and so much of the point was affirmed, but it did not follow as a result that the verdict should be for the defendant.

There can be no fixed and invariable standard of duty either with respect to the rate of speed to be observed by railroad companies at public crossings, or the manner in which approach to such crossings is to be signaled. All that can be said is, that it is the duty of a railroad company in the running of its trains to exercise care according to the circumstances, and when the railroad track crosses a much traveled street or highway, the company is bound to exercise a degree of care commensurate with the danger; to give some sufficient notice of the trains’ approach, and to moderate the speed of the train to such a rate as, under the circumstances, is reasonably consistent with public safety. The law does not designate the mode in which these precautions against injury are to be exercised. This much was said in Lehigh Valley Railroad Co. v. Brandtmaier, 113 Pa. 610, and it has been many times repeated. In the present case while there was agreement between the witnesses that the whistle of the engine ivas sounded at or near the whistling post, more than a half mile west of the crossing, there was very positive disagreement as to whether it was sounded more than once, or whether any signal by bell had been given. One of plaintiff’s witnesses testified that although the engine on this particular occasion was running at unusual speed, yet some of the customary signals were omitted. It could not be said as matter of law that the one whistle which witnesses on both sides agree was given, was an adequate warning; therefore it became a question for the jury to determine from all the evidence in the case whether the defendant had come short of its duty in this regard, and a submission of the question was unavoidable.

So to with respect to the question of the injured party’s contribute rj'' negligence. An imperative duty rested upon him to stop, look and listen ; and there was evidence going to show that he did this ; but the contention of the defendant was that he did not do it at the places or in the manner that proper regard for his own safety would have suggested. Whether he did all that he was bound to do depended upon the situation ás he found it, and the circumstances in which he was placed; and it became a question for the jury under proper instructions as to the law. The court’s refusal to give binding instructions for defendant is the subject of the second assignment, and this is overruled.

The instruction of the court on the question of damages was meager; too meager perhaps to insure a full understanding by the jury of what the law contemplates in this regard. It is only necessary to a'dvert to this feature of the charge with this expression of its insufficiency, to secure fuller instruction at another trial of the case which must be the result of the manifest error which is made the subject of the fourth and last assignment.

In the general charge the learned judge instructed the jury as follows: “There is some evidence that the bell was not rung. If you find it was not rung, that would be an element of negligence on the part of the defendant company. ” However this expression may have been qualified in the answer to points submitted it stands out so conspicuously in the charge, and would necessarily be so misleading if uncorrected, that we cannot be sure that it did not influence the result. Whether the failure to ring the bell, if there was such failure, was negligence, became a question for the jury to determine from all the circumstances in the case ; it was not for the court to declare it as matter of law.

Judgment reversed, and a venire facias de novo awarded.


source: Caselaw Access Project

author: Mr. Justice Elkin,

license: Public Domain

text:
    Kraeer v. Pennsylvania Railroad Company, Appellant.

      Railroads — Farm crossings — Covenant—Agreement with landowner— Abolition of crossing.

    Where a railroad company covenants with a landowner to provide for “suitable farm crossings,” and it appears that the successors in title of the original covenantee, for a long period of years had used one of the crossings as a means of egress from their lands, and to reach a village, post office and station, and such use had been acquiesced in by the railroad company, the railroad company cannot abolish the crossing, on the ground that it had ceased to be used as a farm crossing.
    All contracts made by a railroad company with the landowner whereby privileges are wholly or in part obtained without condemnation, are favorably regarded by the courts and will be construed strongly in favor of the landowner.
    Argued May 7,1907.
    Appeal, No. 115, Jan. T., 1907, by defendant, from decree of C. P. Warren Co.,.Dec. T., 1906, No. 34, on bill in equity in case of Louis Kraeer et al. v. Pennsylvania Railroad Company, Lessee of the Philadelphia & Erie Railroad Company.
    Before Eell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.

      Bill in equity for an injunction.
    Lindsey, P. J., found the following facts and conclusions of law:
    FINDINGS OF FACT.
    The plaintiffs seek to restrain the defendant company from closing a crossing over its right of way and railroad tracks, just east of its station in the village of Sheffield.
    1. All the plaintiffs claim title to their respective properties, and the defendant to its right of way, described in plaintiffs’ bill of complaint from the same common source, to wit: Francis Henry.
    2. By his deed, bearing date December 6, 1858, said Francis Henry conveyed to defendant’s lessor, the Philadelphia & Erie Railroad Company, a strip of land through his land, now occupied by the defendant, for its railway tracks. This deed contained the following covenant, to wit: “ The company to provide four suitable farm crossings at places to be designated by Mr. Henry.” ’
    3. The said Philadelphia & Erie Railroad Company constructed the crossing in question in this case, when the said company built its road on the lands of said Henry, and under the terms as set forth in the deed of conveyance to said Philadelphia & Erie Railroad Company, above referred to, and said crossing is the only one constructed of the four crossings contemplated in said deed from said Henry to said Philadelphia & Erie Railroad Company.
    4. The said crossing has since been used by said Francis Henry, and those respectively deriving title under him, to and including the plaintiffs respectively, under a claim of right to so use said crossing continuously, from the date when said crossing was constructed until the commission by the defendant of the acts complained of in this case.
    5. The crossing in question has been the means of access to the public road by the plaintiffs and their predecessors in title, to and from their respective properties, since their occupation of them and the construction of said crossing.
    6. There is nothing in the evidence to indicate that the plaintiffs contemplate any greater use in the future of the crossing in question than they have heretofore used the same in the past.

      7. The crossing in question is the most convenient way of access by the plaintiffs to the post office, depot, places of business and other places in the village of Sheffield.
    CONCLUSIONS OK LAW.
    1. The plaintiffs are entitled to maintain the in junction proceedings in this case.
    2. The covenant in the deed, under which the defendant’s lessor acquired his right of way,* to wit: “ The company to provide four suitable farm crossings at places to be designated by Mr. Henry,” is to be construed strongly in favor of the landowner.
    3. The respective parties thereto have construed the covenant, to wit: “ The company to provide four suitable farm crossings at places to be designated by Mr. Henry,” in the deed from Mr. Henry to the defendant’s lessor, to cover the uses which the plaintiffs were making of the crossing in question at the time of the interference complained of with such crossing by the defendant. >

      é. The plaintiffs are entitled to have the injunction prayed for made permanent, and the defendant required to restore the crossing in as good order and condition as it was at, and immediately before, the same was interfered with by the defendant.

      Error assigned was the decree awarding the injunction.

      J. Boss Thompson, of J. Boss Thompson día Son, for appellant.-
    We contend that these crossings were intended solely for farm purposes, and when the land ceased to be used as farm land, when it was cut up into village lots and not used for the original purpose intended, the right to claim this crossing by the plaintiffs, owners of the lot, ceased, and the defendants had a clear and undoubtable right to close the same.
    We contend, further, that if the plaintiffs had a right to use this crossing as claimed, and this right was interfered with, they had an adequate remedy at law and not in equity : Brown v. Pittsburg, Carnegie & Western R. R. Co., 29 Pa. Superior Ct. 131.

      D. I. Ball, for appellees.
    These crossings were a material part of the consideration for the right of way in the deed from Mr. Henry : Brown v. R. R. Co., 29 Pa. Superior Ct. 131; Mount Pleasant Coal Co. v. R. R. Co., 200 Pa. 434; Neff v. Penna. R. R. Co., 202 Pa. 371; Republic Iron Works v. Burgwin, 139 Pa. 439; Kaul v. Weed, 203 Pa. 586; People’s Natural Gas Co. v. Wire Co., 155 Pa. 22.
    June 3, 1907 :
   Opinion by

Mr. Justice Elkin,

The rights of the plaintiffs accrue under a covenant in the deed of their predecessor in title conveying to the railroad company a right of way. “The company to provide four suitable farm crossings at places to be designated by Mr. Henry,” is the covenant upon which the appellees rely to sustain their contention. The right to the crossing does not depend upon any statutory authority, but is of contractual origin. The owner of the land at the time the deed of right of way was executed and delivered,'and as a part of the consideration therefor, reserved to himself and to his successors in title four farm crossings to be provided by the railroad company, but only one of the crossings has ever been demanded or provided. The appellant now claims the right to tear up ahd destroy the one crossing which has been maintained by the railroad company and used by the plaintiffs for a long period of time. The ground upon which appellant undertakes to assert its right to tear up and destroy the crossing is that the present use being made of it is not within the meaning of the covenant in the deed providing for a farm crossing. The effort is made to limit the rights of the parties under the deed to the use of the crossing for farm purposes. Alleging that the crossing is not used for farm purposes, the railroad claims the right to destroy it for any purpose. Hall v. Clearfield and Mahoning Railway Company, 168 Pa. 64, The Republic Iron Works v. Burgwin, 139 Pa. 439 are relied on to support this contention. An examination of these cases has convinced us that they are not authority for. the position taken by appellant. In Hall v. Railway Company, the agreement for the right of way contained a stipulation “that said railway company shall construct and maintain a good and sufficient crossing over the right of way on said premises.” Prior to the construction of the crossing the railway company prepared a deed ini' which no mention was made of the crossing, and the landowner refused to execute the same on the ground that the stipulation for a crossing had been omitted. The landowner then tendered a deed to the railroad company, reserving a sufficient crossing over the right of way, “ so that the occupant or occupants of the said premises of the parties of the first part may cross or pass over the said railroad on the premises with wagons, carts and implements of husbandry as the occasion may require.” It will be observed that no question was raised in that case as to the meaning of the words “ farm crossing.” The covenant in the agreement was for “a good and sufficient crossing,” and the court below held that the deed tendered by the landowner was in compliance with the terms of the agreement. That case turned not upon the kind of a crossing reserved, but upon the question whether the covenant in the agreement requiring a sufficient crossing to be provided ran with the deed, or whether it was independent of and disconnected with the right of way. It was held that the covenant ran with the deed and the landowner was entitled to have it inserted therein. It has been many times said, and we now repeat, that all contracts made by a railroad company with the landowner whereby privileges are wholly or in part obtained without condemnation are favorably regarded by the courts and will be construed strongly in favor of the landowner: Mount Pleasant Coal Co. v. Railroad Co., 200 Pa. 434; Neff v. Railroad Co., 202 Pa. 371; Kaul v. Weed, 203 Pa. 586; Mills on Eminent Domain, sec. 110.

The learned court below found as a fact that the parties themselves placed a construction upon the covenant by permitting the use of it for a long period of years in the usual manner of passing over a right of way. Having placed their own construction upon the covenant, it is now too late to disclaim the use made of the crossing in which the company acquiesced for so long a time. The owners of the land have been using the crossing under the covenant in the deed since 1858, and the presumption necessarily arises that all of the parties considered the use made of it such as was contemplated by the covenant to provide a farm crossing. We have carefully examined this case and concur in the findings of fact and conclusions of law stated in the opinion of the learned court below.

Decree affirmed, costs to be paid by appellant.


text:
    Locher, Appellant, v. Beyer.

      Partition — Findings of fact — Review.
    Findings of fact by a court below in partition proceedings based upon , sufficient evidence that the plaintiffs had no title whatever in the real estate in question, will not be reversed by the appellate court where there is no manifest error.
    In such a case the fact that there was some conflict of testimony on the question involved, or a difference of opinion as to the inferences to be drawn from the established facts, is not sufficient to warrant the appellate court in reversing the findings unless it clearly appears there was manifest error.
    Argued May 20, 1907.
    Appeal, No. 190, Jan. T., 1906, by plaintiffs, from decree of C. P. Lancaster Co., Equity Docket No. 4, p. 195, dismissing bill in equity in case of Lila- Reno Locher and David R. Locher, Administrators of Charles II. Locher, deceased, et al. v. William F. Beyer et al.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Bill in equity for partition.
    The opinion of the Supreme Court states the case.

      Error assigned was the decree dismissing the bill.

      Reynolds D. Brown, of Burr, Brown d> Lloyd, with him W. U. Hensel and W. R. Brinton, for appellants.

      Willicum LI. Keller, of Ooyle ds Keller, with, him W. F. Beyer, for appellees.
    June 3, 1907:
   Opinion by

Mr. Justice Elkin,

This is a proceeding in equity to partition certain real estate described in the bill. The answer of the respondents denies that the petitioners have any vested interest in or title to the real estate in question and, therefore, are not entitled to ask for a partition of the premises. The record presents a sharply defined issue of fact and a large amount of testimony was produced before the learned court below, sitting as a chancellor, relating to the disputed question of fact. After full hearing and a careful consideration of the testimony, as> evidenced by the opinion, the learned court below found as a fact that, “ the money raised on these notes was raised for the promotion of the plan to form a corporation to build the plant as aforesaid, and was advanced and paid out for that purpose. It was deposited in the bank in the name of "W. F. Beyer, special, and paid out in the purchase of real estate for the company, for the payment of expenses incurred in its, organization, and also for expenses incurred in its work of erecting the plant at or near Safe Harbor. The title to the real estate so purchased for the company was put in the name of ~W. F. Beyer to be afterwards conveyed by him to it.” It is conceded that if the testimony warranted these findings of fact, the proceedings in partition must fall because, under these findings, the appellants do not have any title, legal or equitable, to the real estate sought to be partitioned. After a careful examination of the evidence we have concluded that it was sufficient to sustain the findings. It is true there was some conflict of testimony on the question involved, or rather a difference of opinion as to the inferences to be drawn from the established facts, but this is not sufficient to warrant an appellate court in reversing the findings unless it clearly appears there was manifest error : Price’s Appeal, 54 Pa. 472 ; Plankinton’s Estate, 212 Pa. 235. ¥e are not convinced that manifest error was committed by the learned court below, indeed, in our opinion the evidence amply justified the findings.

Decree affirmed, costs to be paid by appellants.


author: Mr. Justice Fell,

text:
    Stark, Appellant, v. Lancaster Electric Light, Heat & Power Company.

      Negligence — Electric light company — IAve wire — Safety appliance— Custom — Evidence—Nonsuit.
    While companies using electricity are held to the highest degree of care practicable and are required to take every reasonable precaution suggested by experience and known dangers, it is not for a jury, without evidence, to set up a standard of care as to a matter not within the range of common knowledge.
    In an action against an electric light company to recover damages for a death resulting from contact with a telephone wire which had become charged by dropping on to a wire of the defendant company during a storm, the defendant company cannot be charged with negligence in not maintaining a guard or screen above its wire to prevent their contact with the telephone wires in the event of the breaking of the latter, where there is no testimony to show that the erection of guards was a reasonable precaution to avoid accidents, or that it was customary or practicable to maintain them.
    Argued May 20, 1907.
    Appeal, No. 193, Jan. T., 1906, by plaintiff, from order of C. P. Lancaster Co., May T., 1902, No. 13, refusing to take off nonsuit in case of Kate Stark v. Lancaster Electric Light, Heat & Power Company.
    Before Mitchell, C. J., Pell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s son. Before Hassler, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit.

      B. F. Davis, for appellant.
    The case was for the jury: Daltry v. Electric Light, Heat & Power Co., 208 Pa. 403; Block v. Milwaukee Street Ry. Co., 89 Wis. 371 (61 N. W. Repr. 1101); Western Union Tel. Co. v. State, 82 Md. 293 (33 Atl. Repr. 763); City Electric Street Ry. Co. v. Conery, 31 L. R. A. 570; Com. Electric Co. v. Melville, 210 Ill. 70 (70 N. E. Repr. 1052); N. Y. & N. J. Telephone Co. v. Bennett, 62 N. J. L. 742 (42 Atl. Repr. 759); Newark Electric Light, etc., Co. v. Ruddy, 62 N. J. L. 505 (41 Atl. Repr. 712); Haynes v. Gas Co., 114 N. C. 203 (19 S. E. Repr. 344); Fox v. Village of Manchester, 183 N. Y. 141 (75 N. E. Repr. 1116); Linton v. Weymouth Light & Power Co., 188 Mass. 276 (74 N. E. Repr. 321); Keasbey on Electric Wires (2d ed.) sec. 228 p. 252; Fitzgerald v. Edison Electric Illuminating Co., 200 Pa. 540; Dillon v. Light Co., 179 Pa. 482; Turton v. Powelton Electric Co., 185 Pa. 406; Trenton Pass. Ry. Co. v. Cooper, 60 N. J. L. 219 (37 Atl. Repr. 730); Morgan v. Westmoreland Electric Co., 213 Pa. 151.

      Wm. JR. Brmton, with Mm W. F. Beyer and W. U. Hensel, for appellee.
    It was the duty of the plaintiff to clearly establish the cause of the accident: Price v. Lehigh Valley R. R. Co., 202 Pa. 176; Wagner v. Traction Co., 212 Pa. 132; Sandt v. North Wales Foundry Co., 214 Pa. 215; Alexander v. Penna. Water Co., 201 Pa. 252; Allen v. Kingston Coal Co., 212 Pa. 54.
    June 3, 1907 :
   Opinion by

Mr. Justice Fell,

The death of the plaintiff’s son was caused by an electric shock received from a wire of the Pennsylvania Telephone Company which had broken during a severe sleet storm, at night, and hung down to a pavement in the city of Lancaster. The telephone company had a number of wires on the street which were suspended at a height of forty or fifty feet. The wire of the defendant company ran parallel to the wires of the telephone company and were on separate poles from eight to fifteen feet below them. No one knew when the wire broke, but the circumstances connected with the accident would indictate that it fell when the deceased was walking under it. The defendant’s wires were insulated and it was not shown that there was any defect in the insulation. After the close of the argument for a nonsuit, an offer was made by the plaintiff to prove that the telephone wire in falling had come into contact with the electric light wire and that the insulation of the latter had been worn off by friction at the point of contact. This offer was overruled, but in disposing of the motion to take off the nonsuit, the case was considered as if the offer had been proved.

The main contention of the appellant is that the defendant was negligent in not maintaining a screen or guard over its wires to prevent their contact with the wires of the telephone company in the event of the breaking of the latter. There was no testimony to show that the erection of guards was a reasonable precaution to avoid accidents, nor that it was customary or practicable to maintain them. While companies using electricity are held to the highest degree of care practicable and are required to take every reasonable precaution suggested by experience and known dangers, it is not for a jury without evidence to set up a standard of care as to a matter not within the range of common knowledge. In Aument v. Penna. Telephone Company, 28 Pa. Superior Ct. 610, a case in which the same question was involved, it was said by Rice, P. J.: “ If, therefore, there had been evidence that it is customary or, if not customary, that it is practicable for telephone companies to maintain guard wires under the circumstances proved at the trial, the plaintiff’s case would present a different aspect. But we cannot say that this was a question of fact upon which the generality of mankind are so well informed that the jurymen drawn from the ordinary walks of life ought to have been permitted to determine it without evidence, and then make their finding the basis of an inference that the omission to maintain such wires in the present instance was negligence, and the proximate cause of the injury complained of.”

There is no merit in any of the assignments of error.

The judgment is affirmed.


text:
    York Haven Water and Power Company’s Assessment.

      Taxation — Assessments—Appeals—Location of property — Finding of fact — Change of venue.

    A corporation appealed from a tax assessment and thereupon petitioned for a change of venue. The petition was dismissed, but no exception was taken to such dismissal. The court found as a fact that the property was situated in the county where the assessment was made. On an appeal by the corporation this finding was sustained. Subsequently a neighboring county claiming that the property assessed was within its limits, intervened, but the court again found that the property was within the other county. The intervening county then took an appeal. Held, that on the appeal the intervening county could raise no question as to the dismissal of the petition for the change of venue, and had no standing to contend that the Act of April 14, 1905, P. L. 157, in relation to the surveying and marking of county lines, ousted the jurisdiction of the court.

      Argued May 21, 1907.
    Appeal, No. 97, Jan. T., 1907, by York County and York Haven Borough, from order of C. P. Lancaster Co., Trust Book No. 19, page 257, dismissing appeal from tax assessment in the matter of the York Haven Water and Power Company, from the assessment of lands of York Haven Water and Power Company, by Lancaster County.
    Before Mitchell, C. J., Pell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Appeal from tax assessment.
    The opinion of the Supreme Court states the case.

      Errors assigned were in the following form:
    1. The learned court below erred in finding “That the power house is located east of ordinary low water mark and is in Conoy township, Lancaster county.”
    2. The learned court below erred in assuming jurisdiction of and deciding this contention as against the claims of York Haven borough and York county.
    3. The learned court below erred in ignoring the claims of York Haven borough in York county and York county, that this contention could not be decided by the Lancaster county courts.

      é. The learned court below erred in finding that the property in question is “ properly assessable in Lancaster county.”
    5. The learned court below erred in finding “ we . . . dismiss the appeal at the costs of the county of York and the borough of York Haven, at whose instance and request this hearing was granted.”
    6. The learned court below erred in refusing to order and direct a change of venue.
    7. The learned court below erred in finding as follows: “ The testimony of witnesses, who fix the line of low water mark, by the monument or mark on the ground, which is Ring Rock, and who are thus corroborated, is entitled to greater weight than that of witnesses who testify from, recollection, the uncertainty of whose recollection is shown by the difference in their description of the condition of the land six years ago, before the power plant was erected.”
    8. The learned court below erred in finding “ that the power house is located east of ordinary low water mark and is in Conoy township, Lancaster county, and properly assessable in Lancaster county.”

      W. U. Sensei and N. Sargent Boss, with them S. G. Brenneman and John J. Bollinger, for appellants.

      B. J. Myers, with him Win. R. Brinton and N. F. Hall, for appellees.
    June 3, 1907:
   Opinion by

Mr. Justice Fell,

On an appeal by the York ITaven Water and Power Company it was decided, affirming the order of the court of common pleas, that its power house was located in Lancaster county and was assessable there: see 212 Pa. 622. On petition of the county of York and the borough of York Haven, the order made by the common pleas was opened and a rehearing was directed by that court in order that the petitioners might be heard on their claim that the property of the company ought to be assessed and taxed exclusively in the county of York. Upon the rehearing, to which the petitioners were parties, it was found as before that the property assessed was in the county of Lancaster. While this finding is assigned as error, its correctness, if not conceded, was not questioned on the argument. It is the only assignment properly before us.

A petition for a change of venue was presented by the York Haven Water and Power Company. That company had had its day in court, a final decision had been made against it and it had no standing to raise the question of jurisdiction; no exception was taken to the order dismissing its petition and it is not an appellant here. If there is any merit in the contention that the Act of April 14, 1905, P. L. 157, in relation to the surveying and marking of county lines, ousted the jurisdiction of the court, and we do not suggest that there is any, the question is not raised by the record. The rule granted on petition to stay proceedings until the dispute between the counties should be adjusted was revoked at the request of the appellant’s counsel. The only question presented by the appeal was correctly decided.

The order of the court is affirmed at the cost of the appellants.


author: Mr. Justice Brown,

text:
    Tenth National Bank of Philadelphia v. Smith Construction Company
    (No. 1).

      Mechanics’ liens — Claim against public improvement — Notice to owner —Subcontractor.

    A subcontractor who furnishes material for a city improvement, in availing himself of the provisions of section 6 of the Act of June 4, 1901, P. L. 431, to establish a claim against a public improvement, must give the preliminary notice of an intention to file a lien as required to be given under section 8 of the act to establish a lien against the property of a private owner.
    A mechanic’s lien is a pure creature of the statute, and compliance with statutory requirements is necessary to its validity. Whether these requirements may be vain or useless is never a question for the courts. Without legislative authority a mechanic’s lien cannot be filed, and when the right to file one is given by that branch of the state government which alone can give it, statutory conditions and requirements must be observed and followed, with no question as to the wisdom of the legislature in prescribing them.
    Argued May 22,1907.
    Appeal, No. 155, Jan. T., 1907, by Fourth Street National Bank, from decree of C. P. York Co., April T., 1905, No. 1, sustaining exceptions to auditor’s report in case of The Tenth National Bank of Philadelphia v. Smith Construction Co.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Reversed.
    Exceptions to report of David P. Klinedinst, Esq., auditor.
    The opinion of the Supreme Court states the case.

      Errors assigned were in sustaining exceptions to report of auditor.

      Jlenry G. Niles, with him George E. Neff, for appellant.

      McLean Stock, with him John E.Kell, for appellee.
    June 3, 1907:
   Opinion by

Mr. Justice Brown,

By section 6 of the mechanic’s lien Act of June 4,1901, P. L. 431, as amended by the Act of April 22, 1903, P. L. 255, a subcontractor is protected for labor or materials furnished “ for any structure or other improvement for purely public purposes.” He may have this protection by giving a written and duly sworn notice to the commonwealth, or any division or subdivision thereof, or any purely public agency thereunder, being the owner of the structure or other improvement, setting forth the facts which would have entitled him to a lien as against the structure or other improvement of a private owner.” To entitle a subcontractor to a lien against the property of a private owner he is required by section 8 of the act of 1901 to give the'owner written notice of his intention to file a claim, “ together with a svvorn statement setting forth the contract under which he claims, the amount alleged to be still due and how made up, the kind of labor or materials furnished, and the date when the last Avork was done or materials furnished; ” and such notice and statement must be served at least one month before the claim is filed, and within three months after the last of the Avork is done or materials furnished, if the subcontractor has six months Avithin Avhich to file his claim, and within forty-five days thereafter, if he has but three months within which to file it.

The Smith Construction Company entered into a contract for the construction of a sewer for the city of York. The St. Mary’s Sewer Pipe Company furnished material for the sewer, delivering the last of it on December 9,1904. On January 27, 1905, the construction company passed into the hands of a receiver. On June 9,1905, the St. Mary’s Sewer Pipe Company filed Avith the mayor of the city of York a notice of its claim, the intention, stated in the notice, being that it was given in accordance with the provisions of the act of June 4, 1901, as amended by the act of April 22,1903. The notice of the claim is admitted to have been sufficiently formal and set forth facts which would have entitled the company to a lien as against a private owner, except that it did not state when and how the notice was given to the owner of its intention to file its claim, which is required by section 8 of the act of 1901, to be given at least one month before the claim is filed. On October 8, 1906, the city of York asked leave, and permission was given it, to pay into court the sum of $5,614.33, the balance due on the sewer contract, and an auditor was appointed to distribute the same. The claim s of various subcontractors were presented, all of which were disallowed by the auditor, who awarded the fund to the ancillary receiver of the construction company. On exceptions to his report the court directed the fund to be paid to the St. Mary’s Sewer Pipe Company, on the ground that it was the only subcontractor that had filed its claim within six months of the date that the last material was furnished to the contractor and was not required to give the preliminary notice of its intention to file its claim. The learned president judge held that such notice is not required in case of a structure of a public character. He was of opinion that the purpose of the preliminary notice was to enable the owner in the case of a private structure to protect himself against loss by retaining sufficient of the moneys payable to the contractor, but that in the case of a structure of public character such notice is not required, as it would be vain and useless.

A mechanic’s lien is a pure creature of the statute, and compliance with statutory requirements is necessary to its validity: Wharton et al. v. Investment Co., 180 Pa. 168; Knelly v. Horwath, 208 Pa. 487. Whether these requirements may be vain or useless is never a question for the courts. Without legislative authority a mechanic’s lien cannot be filed, and when the right to file one is given by that branch of the state government which alone can give it, statutory conditions and requirements must be observed and followed, with no question as to the wisdom of the legislature in prescribing them.

• It is not to be questioned that if the St. Mary’s Sewer Pipe Company had furnished the material to a contractor with a private owner of an improvement, its failure to give notice of its intention to file a claim would be fatal to its right to a mechanic’s lien. In the section of the act in which permission is given a subcontractor to file his claim for material furnished for a public improvement, in lieu of what would be his lien against the property of a private owner, the language is: “ Any subcontractor who has furnished labor or materials thereto may give a written and duly sworn notice to the commonwealth, or any division or subdivision thereof, or any purely public agency thereunder, being the owner of the structure or other improvement, setting forth the facts which would have entitled him to a lien as against the structure or other improvement of a private owner.” When in pursuance of this a claim is filed, it must be in the form directed by the statute, and its protection can be invoked only when what it directs to be done has been done. The claim may be filed, “ setting'forth the facts which would have entitled the subcontractor to a lien as against the structure or other improvement of a private owner.” These words must be regarded as imperative, and this view of the auditor ought to have been sustained. The decree is reversed and the report of the auditor is absolutely confirmed, the costs on this appeal to be paid by the appellee.


text:
    Tenth National Bank of Philadelphia v. Smith Construction Company
    (No. 2).

      Mechanic’s lien — Receiver—Contract.
    Where a receiver, in the order appointing him, is given no authority to purchase material on the credit of an improvement which he is constructing, but is directed to make all necessary payments from his receipts, a person furnishing him with material cannot file a mechanic’s lien against the improvement for the material furnished. .
    Where a subcontractor furnishes materials to a corporation for construction purposes, and after the corporation has gone into the hands of a receiver, continues to furnish materials to the receiver, notice to the owner given more than six months after the appointment of the receiver, but within the six months from the date of the last materials furnished to the receiver, will not sustain a mechanic’s lien for materials furnished to the corporation before the appointment of the receiver.
    Argued May 22, 1907.
    Appeal, No. 188, Jan. T., 1907, by Edgar A. Frey and Chester H. Thomas, trading as Frey & Thomas, from order of C. P. York Co., dismissing exceptions to auditor’s report in case of the Tenth National Bank of Philadelphia v. Smith Construction Company.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Exceptions to report of David P. Klinedinst, Esq., auditor.
    The facts are stated in the opinion of the Supreme Court.

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

      Charles A. Ilawkins, with him Jere 8. Black, for appellants.

      Mo Clean Stock, with him John F. Kell, for appellee.
    June 3, 1907:
   Opinion by

Mr. Justice Brown,

The auditor found that the claim of these appellants was upon a mere verbal agreement to furnish materials to the Smith Construction Company when needed in the ordinary course of business, and the open account between them and the company was terminable at any time at the pleasure of either party. There was, therefore, no contract in existence between the Smith Construction Company and the appellants when the receiver was appointed, January 27, 1905. After his appointment they furnished him materials, the last item having been supplied October 30, 1905. On December 29, 1905, they gave notice to the city of York of their claim. This was more than six months after the last item had been furnished to the Smith Construction Company, and, of course, was too late to give the appellants any protection under the act of 1901 for what they had furnished it. As to what they furnished the receiver the court below properly held the act of 1901 did not apply. The receiver, in the order appointing him, was given no authority to procure material for the sewer on the credit of the same, but was directed to make from his receipts all necessary payments. Those who dealt with him did so on a cash basis, or, if credit was extended, it was to him, and not on the improvement he was making.

Appeal dismissed at appellant’s costs.


author: Per Curiam,

text:
    Laukhuff's Estate.

      Wills — Probate—Appeal from register — Leave of orphans’ court — Act of March 15, 1832, sec. 31, P. L. 135.
    Under the Act of March 15, 1832, sec. 31, P. L. 135, an appeal from an order of the register of wills revolting letters of administration, is a matter of right, and it is not necessary to secure the allowance of the orphans’ court to bring such an appeal.

      After the case is brought into the orphans’ court by appeal without special allowance, the proper practice is for the appellant to present a petition to the court setting forth the facts of the case, upon which citation will be granted on the parties interested to show cause why the appeal should not be sustained and the decision complained of set aside.
    It is immaterial that the paper filed as an appeal does not by its caption certify that the case is in the orphans’ court, where the record of the docket entries shows that such an appeal was filed.
    Argued May 22, 1907.
    Appeal, No. 175, Jan. T., 1907, by Carrie Laukhuff Macintosh, from judgment of Superior Court, Oct. T., 1906, No. 4, reversing decree of O. C. Lancaster Co., Oct. T., 1905, No. 56,. quashing appeal from Begister of Wills in Estate of Andrew Laukhuff, deceased.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Appeal from judgment of the Superior Court.
    The opinion of the Superior Court by Henderson, J., was as follows:
    The appellant was duly appointed administrator of the estate of Andrew Laukhuff, deceased. Afterwards on the application of the appellee the letters of administration were revoked and new letters issued. From. the order of removal Bock appealed to the orphans’ court. The appeal was quashed by the orphans’ court for the reason that it was not taken in accordance with section 1 of rule 5 of the rules of that court. The only question presented now is whether an effective appeal was taken to the orphans’ court by the appellant. Section 31 of the act of March 15, 1832, gives an appeal from all the judicial acts and decisions of the several registers of wills. Since the abolition of register’s courts the appeal is directly to the orphans’ court. The rule of court referred to has apparent application to cases in which appeals may be had on cause shown. It provides for a citation on the adverse parties to show cause why an appeal should not be allowed, and implies a discretion in the court after hearing to refuse an appeal. It does not regulate the practice in disposing of appeals but provides for a preliminary inquiry whether an appeal shall be granted or not. So far as it confers upon the orphans’ court a discretion to determine whether an appeal shall be allowed or not, it is inconsistent with the section of the act of 1832 above referred to. It cannot be successfully contended that the rule as applied to cases of this class is in aid of the expeditious administration of justice, for it would be a vain thing for the court to engage in the investigation of the propriety of allowing an appeal when no statutory duty was imposed to make such inquiry and when it was powerless to refuse it. The register of wills is a judicial officer and. his final decisions under the statute investing him with official functions are subject to appeal. The appeal was taken in conformity to the statute and in an approved form: 3 Brewster’s Pr., secs. 4118, 4119. The question presented by the appeal was one of law which the orphans’ court could not only dispose of after hearing, according to the practice in that court. After the case is brought into the orphans’ court, a proper practice is for the appellant to present a petition to the court setting forth the facts in the case, upon which a citation will be granted on the parties interested to .show cause why the appeal should not be sustained and the decision complained of set aside: 3 Brewster’s Pr., sec. 4126. An issue is thus presented for the determination of the court as a question of law or fact as the case may be. The learned judge of the orphans’ court, in disposing of the motion to quash, proceeded upon the theory that the appellant was only entitled to appeal when allowed by the orphans’ court for cause shown. As the appellant had a right to have the question raised in the orphans’ court whether he was lawfully removed as administrator, it was not necessary that he should have the consent of that court to bring that question there for determination. The exercise of discretion by the court in deciding whether an issue shall be framed is not involved in the case. At the time the decree of the orphans’ court was made the case had not proceeded to the point where the court was called upon to determine whether an issue should be granted or not. The appellant should have been permitted to file a petition calling upon the appellee to answer his complaint. Comment is made by the orphans’ court on the fact that the paper filed does not certify by its caption that the case is in the orphans’ court. This is purely a matter of form, however, and not essential to the determination of the rights of the parties. The record of docket entries shows that the appeal was filed in the orphans’ court November 4, 1905. Section 43 of the act of 1832 provides that no immaterial variation from the form prescribed in this act shall vitiate or render void any proceeding in which said form shall be used. The intention of the legislature was that where a case was clearly and substantially presented, technical objections to form should not prevail. We are not called upon to consider a large part of the appellant’s argument, which relates to the merits of his case. That is a question for the orphans’ court. In the light of Eiegel’s Appeal, 17 W. N. C. 279, he may have difficulty in showing that an error was committed.
    The decree is reversed and a procedendo awarded.

      Error assigned was the decree of the Superior Court.

      Charles W. Eaby, for appellant.

      B. F. Davis, for appellee.
    June 3, 1907:
   Per Curiam,

The judgment is affirmed on the opinion of the Superior Court.


text:
    First National Bank of York, Appellant, v. Diehl.

      Promissory notes — Indorsers—Extension of time — Contract.
    Where the payee of a promissory note made by a corporation enters into an agreement with one of the several indorsers on the note, that if such indorser will pay the note as soon as possible, or at the most within sixty days, other notes of such indorser will be extended, such agreement does not release the other indorsers from liability, if the note has been duly protested, and notice of protest has been given to them. In such a case the mere fact, without more, that the indorser with whom the agreement was made, was the president of the corporation which made the note, is immaterial as affecting the liability of the other indorsers.
    Argued May 22, 1907.
    Appeal, No. 180, Jan. T., 1907, by plaintiff, from judgment of C. P. York Co., April T., 1906, No. 135, on verdict for defendants in case of First National Bank of York v. S. K. Diehl et al.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Reversed.
    Assumpsit on a promissory note. Before Bittenger, P. J.
    The court charged as follows :
    We have tried an important case in a very short time by means of an agreement between counsel by which they have admitted all the facts in the case. A promissory note was signed by the carriage company, and the note indorsed for $5,000 and discounted in the First National Bank of York. It was indorsed by a number of indorsers, among whom were the four parties defendant in this case, namely, W. J. Reider, N. S. Brillhart, S. K. Diehl and J. Fletcher Lutz. The parties have agreed upon the facts contained in the paper which has been offered by the plaintiffs in evidence, -from which it appears that the bank granted time to W. C. Roller, who was president of the carriage works and also an indorser on the note, amounting in all to nearly a year; and that he was the president of the company to which they gave this extension of time. [A matter of law is raised in those admissions as to the effect of giving time upon this note, and the court has ■been asked to instruct the jury that by giving that time the bank prevented itself from suing the company and Mr. Roller during the time of extension given, and by that act the law discharged the sureties on this note, four of whom are in this case as defendants, whose names I have stated. We are of the opinion strongly that the action of the bank in this case was such as to prevent their recovering in this action against these indorsers who were sureties on this note. They were indorsers only for accommodation, and not for value. The Supreme Court has decided that in such cases the extension of time is a discharge of the surety, and ive are compelled to hold that opinion in this case. We think that the law applies in this case, and we therefore instruct the jury that their verdict should be for the defendants. While they have produced a note in evidence upon which they have shown a prima facie case on which they could recover a verdict, the defendants have produced evidence which is a perfect defense, and to that there has been no answer; therefore it will be for the jury to find a verdict in favor of the defendant.] [2] [The amount claimed was $1,037.95 with interest from May 11, 1905, with costs of suit. The plaintiff has not sustained his action showing that plaintiff is entitled to recover any amount of this money and, therefore, you will render a verdict in favor of the defendants.] [3]
    Yerdict and judgment for defendants. Plaintiff appealed.

      Errors assigned were (2, 3) above instructions, quoting them ; (7) in refusing plaintiff motion for judgment non obstante veredicto.

      Henry C. Hiles, with him E. W. Spangler and George E. Heff, for appellant.
    If a creditor by any contract which can be enforced gives time to his principal debtor, he discharges the surety: Clippinger v. Creps, 2 Watts, 45; Henderson v. Ardery, 36 Pa. 449.
    The kind of contract having this effect is only one which precludes the creditor from proceeding immediately against the principal himself, or from accepting payment from a surety and turning over the obligation for him to sue upon at once or take, any steps he desires against the principal for his protection.
    Nothing short of an agreement having this effect will discharge the surety, because his rights are not impaired and he is not injured: Farmers’ Nat. Bank v. Marshall, 9 Pa. Superior Ct. 621; Brubaker v. Okeson, 36 Pa. 519; Peoples’ Bank v. Legrand, 103 Pa. 309; Weakly v. Bell, 9 Watts, 273; Schock v. Miller, 10 Pa. 401; Klingensmith v. Klingensmith, 31 Pa. 460; Wharton v. Duncan, 83 Pa. 40.
    The bank was entitled to take payment at any time from Koller; and, as an inducement to him to pay, it had a right to promise to give him time upon the other obligations held against him : Zane v. Kennedy, 73 Pa. 182; Shaffstall v. McDaniel, 152 Pa. 598.

      Oliarles A. Hawkins, with him Cha/rles Reider and J. S. Black, for appellees.

      June 4, 1907:
   Opinion by

Mr. Justice Elkin,

There are eight joint indorsers on the note on which this suit is brought. They were all notified of nonpayment at maturity, and therefore, on their promise to pay on the single condition that the maker do not, became liable for the whole amount due and unpaid. The appellant made out a prima facie case by prolong the execution of the note, together with the indorsements, and by showing that notice of nonpayment at maturity had been given. The defendants in the court below successfully contended that they were discharged because of an agreement entered into between the bank and one of the joint indorsers, which was construed to be equivalent in legal effect to the giving of time to the maker. It is true that in the application of settled rules of law in the administration of the law merchant, the relation of principal and surety is so far recognized that an indorser may be discharged by the holder of a negotiable instrument giving time for payment to the maker. This rule is founded in reason and equity. One who becomes an accommodation indorser for another, does so without any benefit accruing to himself, and has a right to insist that the fixing of his liability shall be limited to the time named in the paper indorsed by him. His promise is to pay, if the maker do not, when the note matures. He voluntarily takes upon himself the burden of answering for another’s debt, and.hence the law says if the holder enters into an agreement with the maker whereby the time of payment is extended, or new conditions introduced, without the consent of the indorser, he is discharged from liability because the holder, having taken a new and inconsistent security, or having made a new agreement with the maker as to the time of payment, is held to have abandoned the old one. In the present case the holder of the note did not enter into an agreement with the maker to extend the time of payment, nor did it demand or accept a renewal of the protested note. The original note remained in the possession of the bank since maturity. Several partial payments were made and credited on it. This action is to recover the balance due. The agreement on which appellees rely to defeat a recovery is between the bank and Koller, one of the joint indorsers, and was entered into under the following circumstances. The bank held certain paper in which. Roller, either as maker, indorser, or as furnishing collateral, or as president of the carriage company, was interested. It is quite evident that the bank, for its own protection, wanted Roller to personally assume the entire indebtedness, and in consideration of this assumption he was to have an extension of time on the notes not included in this suit. As to the note in suit it was provided that “ if the said Roller shall pay as soon as possible within sixty (60) days the said five thousand ($5,000) dollar note, described as No. 3,” then and in that event the bank would do the things agreed upon with respect to the other notes. The learned court below held that in legal effect this amounted to an extension of time to the maker for the payment of the note in controversy, and that the other indorsers were discharged from liability on this account. We cannot accept this conclusion as a correct view of the law and the facts in this case.

The protesting of the note fixed the status of the parties and the liability of the indorsers. The bank could then proceed against the maker, or against the indorsers jointly. It was the right of each indorser to voluntarily pay the note after maturity and protest and then proceed against the maker for the amount due thereon, together with interest and proper costs, or against the other indorsers jointly liable with him for contribution. This was the legal situation, after maturity of the note and notice of nonpayment. The holder could not, without the consent of the indorsers, enter into any agreement with the maker whereby the time of payment was extended, or any other thing permitted to be done, the effect of which would be to deprive them of any right which they had when their liability as indorsers attached by notice of nonpayment. The arrangement with Roller was that he pay as soon as possible and at most within sixty days. There is no reason why the bank should not say to him or to the other indorsers, your liability being now fixed, you must pay as soon as possible, and if you fail to pay within sixty days we will not refrain any longer from proceeding to collect. This, in legal effect, is what the bank agreed to do, and this agreement was with an indorser not the maker. It did not deprive the other indorsers of any of their legal rights, nor did it deny to them the privilege of paying at any time and then proceeding against the maker or the other indorsers. Therefore it did them no harm.

The maker of the note was the Cosmos Carriage Company, and no agreement was made with this company for an extension of time. It is argued that because Koller was the president of the carriage company, his act as an individual in securing what is alleged to be an extension of time inured to the benefit of his principal, the carriage company. This position cannot be sustained. The facts agreed upon and in evidence do not warrant any such conclusion. We do not see that the carriage company had anything to do with the agreement between the bank and Koller, nor was its liability affected thereby. As a legal entity the carriage company acted in its corporate capacity entirely independent of the personal obligations of its stockholders or of the individual acts of its officers and directors. There is nothing in the evidence to show that there was any fraud, collusion or misrepresentation between the parties to this transaction, nor do we understand that bad faith or abuse of fiduciary relations is charged. We are simply asked to hold, as a matter of law, that because Koller as an individual had indorsed the note while he was president of the carriage company, any agreement made by him as an individual relating to the note will be presumed to be the act of the corporation and intended for its benefit. We are not familiar with any law to support this position. Koller as an individual had a right to enter into any kind of an agreement he chose to make with the bank, and the corporation of which he was president was in no way affected thereby. It is perfectly clear, therefore, that the agreement in question did not extend time for payment to the carriage company, the maker of the note. We quite agree with the learned counsel for appellant that the agreement did not contain any provision whereby the bank precluded itself from proceeding at any time to collect from the maker, the Cosmos Carriage Company, or from accepting payment from any of the indorsers, and immediately thereupon delivering the note for suit or any other process desired. Mere delay in enforcing the collection of the note after maturity when the liability of the indorsers had become fixed by law under the circumstances of this case will not discharge the sureties from their obligation to pay. This case comes reasonably within, the rule of Zane v. Kennedy, 73 Pa. 182, and Schaffstall v. McDaniel, 152 Pa. 598.

Judgment reversed and record remitted to the court below with instructions to enter judgment for the plaintiff non obstante veredicto.


author: Mr. Justice Erkin,

text:
    Zearfoss v. Norway Iron & Steel Company, Appellant.

      Negligence — Master and servant — Dangerous employment — Lack of i/istructions.

    Where an ordinary laborer in a steel works is hurriedly and imperatively ordered by the foreman to do certain work as a cupola tender, as to which work he is unfamiliar and uninstructed, and it appears that at first he objected, and then obeyed, and is injured while performing the work, the question of the employer’s liability for the injuries sustained is for the jury.
    Argued May 23, 1907.
    Appeal, No. 186, Jan. T., 1907, by defendant, from judgment of O. P. York Co., April T., 1906, No. 92, on verdict for plaintiff in case of John S. Zearfoss v. Norway Iron & Steel Company of York, Pa.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Bittenger, J.
    At the trial it appeared that the plaintiff was injured on June 17,1905, while at work in defendant’s furnace at a cupola.
    The circumstances of the accident are described in the charge as follows:
    Plaintiff was engaged as a laborer in the yard of the defendant company, unloading a car of sand. It was in the morning, shortly after going to work, about half past seven o’clock. On that particular morning, for some reason not explained, the man whose duty it was to attend, and charge, and care for this cupola, and furnish the molten iron, or a part of the molten iron, to the works, did not appear at this place of business. It was a Saturday morning; and it was usual to close the place at 12:45 o’clock on Saturday; and it was necessary to do a certain amount of work before the shop was closed and the hands were discharged for the week. It seems to have been necessary that morning to get a heat in this cupola to produce the molten iron required for manufacture of articles in the shop, and the employment of the hands there. It was then that Mr. Baugher, who was the foreman of the hands in the yard and in the shop, and his assistant, Mr. Reiser, who were both present, called upon the plaintiff, according to his testimony, to take the place of this hand on the cupola, who had not appeared that morning, and to prepare the heat in the cupola. He was at work at the time unloading this car of sand, that we have spoken of, with another man; and this foreman came and requested the plaintiff to take charge of the cupola ; that the man had not appeared, and that he should go up on the cupola platform, and get up the heat. He demurred at the time, according to his testimony, and said it was too late to do anything of that character that day. I infer — but the jury will draw their own inference' — I infer that he meant to say that it was too late to get up a heat sufficient to have a moulding that morning, or before the shop closed, at 12:45. He said it was too late, and demurred about going up to the cupola. He testified that then Mr. Baugher said that he should go and hurry the matter, and get up the heat; and that upon that request, or that command, he went to the cupola. It was about half past seven o’clock in the morning.
    When he’examined the cupola he found that before any heat could be made, or before the cupola could be used, it was necessary to clean it out. As he went to the cupola he found that the large partition did not extend between the cupola and shop below, as I understand, at that time; but it was only above, where the platform was ; that this wooden partition had a hole or window in it between the cupola platform and the shop. He found that the cupola had to be cleaned, and in doing so it was necessary to use water, and he ordered the man who was down below to turn on the hose, when he gave him orders from the platform above. He testifies that when he was ready to have the water turned on, he called to the man below to turn on the water in the hose, and that he got no reply from him ; that he called to him again, and got no reply; that he then leaned out of this window or the hole in the partition that led to the foundry, and called to him. After calling some time the man made answer, but the dust was so great — or the foggy morning with the dust — and the noise was so great, that he did not seem to know where the call was coming from ; and then he leaned out of the window for the purpose of calling him again.
    [He had not been there, I think, more than fifteen minutes, in the cupola, before he called to the man below ; and while he was looking down to see the man, with the dust so great that he could hardly see where he was to speak to him, he looked up suddenly, and he saw this crane coming toward him on this track, and only about two and a half feet from him when he first discovered it.] [8]
    He was then leaning out of the window, with his head and shoulders out of the window; and whether or not he had his hand on the beam at that time, or on the track, he is not certain ; but seeing the danger he was in, and a part of his body out of this hole, and the crane rapidly approaching, he made an effort to draw his body from the danger of being struck by the car, and threw himself back; and, he said, in doing so, his hand got on the track. Whether it was necessary to put his hand there to withdraw his body is one of the questions which the jury will have to consider; whether he did it in the endeavor to withdraw his body from still greater danger, or whether he placed his hand there when he was looking out of the window, and failed to withdraw his hand when he had the time to do so, and in the meantime to escape injury. That is one of the important questions that the jury will have to consider. He did manage to withdraw his body, but his hand remained on the rail,,which was supported by the beams, which I have already mentioned; and he was standing facing the foundry. While in this position his thumb and front finger were caught by the wheel; and he says by wrenching the other fingers aside when he was struck he managed to save the balance of his hand, and keep it from being run over by this wheel.
    But if, after considering all the evidence, you come to the conclusion that the defendant was guilty of negligence in maintaining this cupola and platform, and the opening, and the crane in near proximity, and not giving him proper instructions, or warning, or giving him this particular work which he never performed before, why, then, the jury will have to proceed further.] [9] If you find there was negligence on the part of the defendant, you will have to proceed further to determine whether the plaintiff was himself guilty of such negligence as will prevent him from recovering in this case. The law requires the employer of hands to furnish them with reasonably safe tools and materials with which to work, and to furnish an ordinarily safe place for the employee to work in ; [and the law further requires also that the employee shall take upon himself the risk of his employment when properly instructed. In a case like this, where he is urged about the work, where some allowance is made for the employee, his not being as vigilant as he is at other times to take upon himself the risk of his employment — but he must be shown and made to understand the dangers connected with his employment, and to be able to comprehend the danger which he undertakes, and the risk which he takes when he goes into the employment]; [10] and, if understanding the risks and dangers which he is in, if he is guilty of any negligence in the performance of his work which contributes to his injury — the injury which- he may receive in any accident or injury resulting from this employment — -why, then, he cannot recover damages against his employer for any negligence on the part of the employer. In other words, when both parties are proven to be negligent, it is impossible for the jury to divide the responsibility, or for the court to divide the responsibility — that is, the theory of the law — and that if he helps to produce, or causes or inflicts an injury upon him, or causes an accident by which he is injured, that he cannot then call upon the defendant to pay for damages which he helped to bring upon himself. There cannot be a recovery of damages in a case where both parties are negligent, or where any negligence is shown on the part of the plaintiff which contributed to this injury — the burden must be with the plaintiff.
    The defendant’s testimony in this case does not materially differ from or contradict the plaintiff’s testimony as to his orders that morning as to his duties, nor as to the crane being there, and the placing of the crane there. It is in evidence, and not contradicted, that the plaintiff worked at annealing at the works for two years; that this crane was not there, or not in operation.
    The defense is, first, that the defendants were not guilty of negligence in anything that they did; and, secondly, that the plaintiff having been guilty of negligence by putting his hand there unnecessarily, and keeping it there, and not removing it in time to save, these members, that he cannot recover. The witnesses for the defense testify that there were no such noises produced by this cinder mill, and by the chipping machine, as to deaden the sound or noise which the crane would make in running on that track; and that there was no such dust produced by this cinder machine, and the state of the weather that June morning, as to make it so that he could not see, or to produce such a darkness that the plaintiff could not see the danger that he was in by the approaching of this crane on those wheels; and that there was no such a noise but what he could have, heard the crane approaching. The testimony on the part of the defendant is that the crane made a peculiar noise in starting, which could have been heard a considerable distance; that it made a noise when running, which would not be deadened by the noise of the cinder machine, and that the plaintiff could have heard it; that the sound could be heard outside of the shop, at the office, when that crane was running; and that the rail upon which this crane ran was. five inches above the window — several inches from the window, the track, by measurement — and that other operators there had called the hands easily by just calling out at the cupola; that there was an opening in the boards below by which the call could be heard; and it was not necessary to put himself out of that hole at all in order to call to the hands below to turn on the water; that they heard otherwise the call of the operators.
    [This case is peculiarly different from many cases of this character, such as damages by employers, from the fact that he was ordered to this particular work by the foreman suddenly, and ordered to hurry the work, and to take a position that he had not been accustomed to fill, and which he at first objected to occupying, and which he says he did not know the danger of, from that particular- running of the crane past this hole or window in the partition.] [13]

      Yerdict and judgment for plaintiff for $3,000. Defendant appealed.

      Errors assigned among others were (8-10, 13) above instructions, quoting them.

      Charles A. Hawkins, with him J. 8. Black, for appellant.—
    Plaintiff assumed the risk of his employment: Reese v. Clark, 146 Pa. 465; McNeil v. Steel Co., 213 Pa. 331; McIntire v. Steel Foundry Co., 208 Pa. 34; Kelly v. B. & O. R. R. Co., 11 Atl. Repr. 659; Hurley v. Steel Co., 186 Pa. 187; Whitley v. Evans, 30. Pa. Superior Ct. 41; Ingram v. Lehigh Coal & Navigation Co., 148 Pa. 177; Pawling v. Hoskins, 132 Pa. 617; Sheridan v. Gray’s Ferry Abattoir Co., 214 Pa. 115.
    A foreman is but a fellow workman: Railroad Co. v. Bell, 112 Pa. 400; Lineoski v. Coal Co., 157 Pa. 153; Velas v. Patton Coal Co., 197 Pa. 380; Spancake v. R. R. Co., 148 Pa. 184; Prevost v. Citizens’ Ice, etc., Co., 185 Pa. 617; Lehigh Valley Coal Co. v. Jones, 86 Pa. 432; McGinley v. Levering, 152 Pa. 366; Carnagie v. Bridge Co., 197 Pa. 441; Kinney v. Corbin, 132 Pa. 341; Somer v. Harrison, 8 Atl. Rep. 799.
    Defendant was not bound to guard against dangers it had no reason to anticipate: Tomaczewski v. Dobson, 208 Pa. 324; McKenna v. Martin, etc., Paper Co., 176 Pa. 306; Burns v. R. R. Co., 213 Pa. 280.

      James G. Glessner, with him K. W. Altland, for appellee.
    —The duty to provide a safe place to work and to maintain it in a reasonably safe condition by inspection and repair is a direct, personal and absolute obligation from which nothing but performance can relieve the employer, and the person to whom it is delegated becomes a vice principal, whose negligence is the negligence of the employer: Lillie v. American Car & Foundry Co., 209 Pa. 161; Schiglizzo v. Dunn, 211 Pa. 253; Vorhees v. Ry. Co., 193 Pa. 115; O’Brien v. Sullivan, 195 Pa. 474.
    Frank Baugher, who was foreman, had control of the foundry, pattern shop and yard, practically all that there is about a foundry (excepting the office), was a vice principal: Tagg v. McGeorge, 155 Pa. 368; Mapes v. Pittsburg Provision & Packing Co., 31 Pa. Superior Ct. 453.

      June 4, 1907:
   Opinion by

Mr. Justice Erkin,

We would, agree with the learned counsel for appellant that there could be no recovery in this case if the injured party had been the regular cupola tender, or if it had been shown that he was familiar with the surroundings in the place where he was hurriedly sent to work and acquainted with the duties he was ordered to perform. Under such circumstances an employee would assume the risks of his employment, including all dangers, open and obvious. In the present case, however, the appellee was a laborer, not familiar with the work he was imperatively directed to perform, nor with the situation into which he was hurriedly ordered. He objected when ordered to do this work, but finally yielded when the foreman insisted. He did not act voluntarily, but followed the direction of his superior. After the cupola ivas prepared for washing out it was his duty to call for water, which was turned on by an employee on the floor below. Because of the confusion in the foundry, his calls for water were not heard, and, finding an open window, it was but natural to lean out in order to make the water-man hear him. The use made of the window was therefore a proper one. The moving crane passing within six inches of the open and unguarded window made the situation extremely dangerous to an employee unfamiliar with the conditions. Under these facts the learned trial judge would not have been warranted in holding as a matter of law that there was no negligence on the part of the defendant company. This was a question for the jury where it was left with proper instructions as to the respective duties of the parties.

The question of contributory negligence was also for the jury. Appellee was ordered to work hurriedly. It was not his regular work and he had no previous knowledge of the conditions in the cupola. It was for the jury to determine whether he exercised the care required under the circumstances in his attempt to extricate himself from the rather perilous position in which he found himself as the crane approached. While the case may be considered a close one and not free from difficulty, we think it was properly submitted to the jury.

Judgment affirmed.


text:
    Moss v. Lancaster & York Furnace Street Railway Company, Appellant.

      Negligence — Street railways — Passengers—Accident on connecting line —Tickets.

    Where a street railway company sells a return ticket to a point on another railway with which it is connected by intersecting switches and connecting wires, and runs a car operated by its own crew to the point in question, it will be liable in damages to a purchaser of a ticket who is injured by the negligence of the crew while the car is running on the connecting line.
    Argued May 23, 1907.
    Appeal, No. 192, Jan. T., 1907, by defendant, from judgment of the Superior Court, Oct. T., 1906, No. 186, affirming judgment of C. P. Lancaster Co., April T., 1905, No. 44 on verdict for plaintiff in case of Rebecca J. Moss v. The Lancaster & York Furnace Street Railway Company.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Appeal from judgment of Superior Court.
    The opinion of the Superior Court by Orlady, J., was as follows:
    There was sufficient evidence in this case to warrant the jury in concluding that the defendant company agreed to carry the funeral party, of which the plaintiff was a member, from Lancaster to Mount Nebo. A special rate of fare was exacted and paid, and while the special tickets appear on their face to be good only from Lancaster to Martic Forge and return, the car in which the party was carried to Mount Nebo was under the personal charge of the defendant’s superintendent, and its crew consisted of a conductor, motorman and sander.
    The principal contention of the appellant is that there is no evidence to show that the defendant company had any authority to run their car over the line from Martic Forge to Mount Nebo, it being a road owned by an independent company, and that the running of the car from Martic Forge to Mount Nebo “ was beyond the scope of the power and authority of either the superintendent or president of the defendant company, and even though the facts were found that the superintendent did run, and the president agreed to its running, such agreement and their action would not be binding upon the defendant.” The defendant’s superintendent and crew did in fact run the car from Martic Forge to Mount Nebo in consideration of the fare paid by the passengers in that car, and on the return trip while in full control of the car were so negligent in their management of it as to cause the accident in which the plaintiff was injured. The roads were connected with intersecting switches and connecting trolley wires so as to make a continuous system.
    It is conceded that the party was carried from Lancaster to Millersville over an independent road, and it would be unreasonable to' exact of one who pays fare to a destination to inquire into the charter rights of the carrying company throughout the course of travel where the defendant’s officers, whose negligence caused the accident, had entire charge of the power propelling it. The apportionment of equities and liabilities between the several roads over which the car was run may well be left to be adjusted by the companies themselves.
    The Lancaster & Southern Railway Company (from Martic Forge to Mount N ebo) did not contribute to the accident to this plaintiff — its roadbed was intact, but the car was so recklessly managed that the crew lost control of it on a grade, and then abandoned it by jumping from it.
    In the light of the proof, which was clear and practically undisputed, this plaintiff paid the fare asked by the defendant and was not simply presumably a passenger, but was properly to be considered as one in the legal sense of the word. The disputed questions of fact as to the cause of the accident were carefully left to the jury in a full and adequate charge.
    The assignments of error are overruled and the judgment is affirmed.

      Error assigned was the judgment of the Superior Court.

      W. TJ. Hensel, with him J. H. Byrne and A. F. Hostetter, for appellant.

      O. F. Montgomery and G. Boss Eshleman, with them Leo Maqfarlwnd, for appellee.

      June 3, 1907:
   Opinion by

Mr. Justice Brown,

The Lancaster and York Furnace Street Railway Company owns and operates a trolley road from Millersville through Martic Forge to York Furnace, in the county of Lancaster. At Martic Forge the road of the Lancaster and Southern Railway Company connects with it. This road runs southwardly through Mount Nebo. On March 21,1905, the plaintiff below, with a number of other persons, went from Lancaster to Mount Nebo to attend a funeral. According to the testimony offered by her, arrangements had been made with the president of the defendant company to carry the funeral party from Lancaster to Mount Nebo for fifty-five cents for the round trip. The defendant evidently had some traffic contract with the Conestoga Traction Company, operating a street railway from Lancaster to Millersville, for, under the tickets issued to them by the defendant, the party were carried over this road to Millersville, where they took the car of the defendant at the point of its connection with the line of the Conestoga Traction Company. TJpon reaching Martic Forge the car was switched over to tjie tracks of the Lancaster and Southern Railway Company and taken to Mount Nebo. On a steep down grade, on the return trip, the accident occurred in which the plaintiff was injured.

The undisputed facts are that when the car reached Martic Forge it was switched over on the tracks of the Lancaster and Southern Railway Company by the employees of the defendant — the same motorman and conductor that had brought it from Millersville — and this in the presence of its superintendent. He had come with them from Millersville; he rode with them over the Lancaster and Southern road to Mount Nebo, started back with them on the return trip and jumped with them from the car when it got beyond their control.

On this appeal from the judgment against it for its negligence the appellant contends that the running of its car over the tracks of the Lancaster and Southern railway was beyond the scope of the power or authority of either its superintendent or president, and, therefore, “ even though the fact were found that the superintendent did run and the president agreed to its running over this road, such agreement and their action under it would not be binding upon the defendant.” For this reason we are asked to reverse the judgment. This, in effeet, means that before the plaintiff trusted herself to the employees of the defendant in running its car over the tracks of the other company, she ought to have inquired whether the president and superintendent had been duly authorized by the board of directors to use the tracks of that company. But little consideration was given this by the Superior Court. We cannot give it more. When the appellant received the plaintiff in its car at Millersville she became its passenger under an express contract with its president to carry her not only to Martic Forge, but to Mount Nebo. Upon reaching Martic Forge it did not transfer her to a car of the Lancaster and Southern Railway Company, but, keeping her in its own car, switched the same over onto the tracks of the independent company for the purpose of being taken by its own superintendent, conductor and motorman to the place of the funeral; and the superintendent testified that the car was put upon the other tracks in pursuance of information from his superior officers. Under the circumstances, the plaintiff was as much the passenger of the defendant company when the car started over the tracks of the Lancaster and Southern Railway Company as she had been between Millersville and Martic Forge. The tracks of the Lancaster and Southern Railway Company were made the tracks of the defendant company pro hac vice by its president and superintendent, and for its negligence while running its car over them, its responsibility is just what it would have been if the accident had occurred between Millersville and York Furnace.

Judgment affirmed.