text:
    Schwoerer v. Lehigh Valley Railroad Company, Appellant.

      Negligence — Railroads—Grade crossings — “Stop, look and listen”— Case for jury.

    In a grade crossing case the evidence for the plaintiff tended to show that at the time of the accident, plaintiff was driving a spirited team hitched to a wagon, and that he stopped 110 feet from the track, and looked and listened, but seeing and hearing no trains he started on, seated well back in the wagon, and that his horses were struck when on the second track. At the point where he stopped plaintiff could see 1,153 feet. Between this point and the track was situated a building which obstructed the view. The witnesses for plaintiff testified in effect that in passing the building before a view of the tracks could be had, the horses would be on the tracks. The testimony on this subject was, however, not in entire harmony. There was also proof that the train was running at a high rate of speed, and without warning signals. There was also evidence that there was a curve at the angle of the intersection of the road and track, and that this angle was acute. Held, that the case was for the jury and that a verdict and judgment for plaintiff should be sustained.
    Argued March 15, 1909.
    Appeal, No. 67, Jan. T., 1909, by defendant, from judgment of C. P. Bradford Co., Feb. T., 1908, No. 188, on verdict for plaintiff in case of Charles W. Schwoerer v. Lehigh Valley Railroad Company.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.

      Trespass to recover damages for personal injuries. Before Fanning, P. J.
    At the trial the jury returned a verdict of $20,000, upon which judgment was entered for $15,000, all above that amount having been remitted.
    On a rule for judgment non obstante veredicto Fanning, P. J., filed the following opinion:
    This suit is brought by the plaintiff for injuries to his person and property because of the alleged negligence of the defendant.
    The plaintiff was seriously injured, his horses killed and wagon demolished February 2, 1907, at a grade crossing on a curve on the Lehigh Valley Railroad near Wyalusing, Pa., by the “Milk Train” westward bound running at a high rate of speed. This crossing is on an extensively traveled thoroughfare, it being the main highway leading from Wyalusing borough to several towns and an extended thickly settled area of country south of the Susquehanna river. Plaintiff approached the crossing from the south driving a spirited team hitched to a wagon upon which he had been drawing baled hay, and stopped, as he states, from 100 to 125 feet from the tracks (the place indicated by actual measurement is 110 feet), took off his ear laps and mittens and looked and listened for approaching trains. He started on and upon reaching the crossing at the second track his horses were struck by the locomotive, but were not sufficiently over the crossing at the time as they approached from the south to be seen by the engineer from the north side of the train, which was moving west.
    At the point where the plaintiff testifies he stopped, he could see down the tracks to the whistling post about 1,153 feet, or not far from sixty-nine-rods. Beyond that was an embankment about seven feet high dotted with trees, etc. He states that no train was in sight, no warning signals heard, and “if there had been a train he could have seen it.” He then proceeded toward the railroad. Between the point where he stopped and the tracks, obstructing the view eastward, was a lumber office sixteen by thirty-two feet. The northeast corner of this office is nearest the railroad track, its distance from the southern rail of the west-bound track, where the accident occurred, being about forty-three feet.
    The plaintiff was alone and sat near the rear wheels about twenty feet from the heads of the horses. The railroad line is on a curve at and in the vicinity of this crossing, which the plaintiff approached from within the circle, and easterly from the crossing the curve is to the southeast and seems pronounced because of the acute angle at which the highway intersects it, and the testimony as to just how far the track can be seen from the highway easterly immediately after passing the lumber office, the side from which the train injuring the plaintiff came, is not in entire harmony.
    The testimony of Hiram E. Bull, a surveyor, is to the effect that the office building, as stated, is sixteen by thirty-two feet, with the end toward, but not square with the street, and fifty-six feet distant from its center. From the north side of the building at the front to the first rail of the track in line with the building is seventy-one feet, and from the northeast corner of the office building to- the railroad track, in line with the rear of the building, is forty-three feet and four inches; but this northeast corner of the office building diagonally to the track, is somewhat nearer. He states that from the crossing one can see to the whistling post, and gives it as his opinion, that after passing the office building a few feet, or ten feet from the right of way line, a view of probably 300 feet can be had down the track, and when from twelve and one-half to fifteen feet from the east-bound track, the view extends to the whistling post.
    Charles W. Schwoerer, the plaintiff, testifies in direct examination that at the point where he stopped, which was the usual stopping place for travelers, he had a view of the track and could see if a train was coming from the crossing eastward for 1,000 or 1,500 feet, and this notwithstanding the location of the office and box cars, which he claims were there (although a number of witnesses testify that they were on the switch on the opposite side of the track); that after passing the office he could not get a view of the track at all, and on redirect examination, that after passing the office building to a point where he was able to see east any distance at all — 200,300 or 400 feet —his horses would be on the track and that at the place where he stopped, 110 feet from the track, there was nothing to obstruct his view at all. On recross-examination, he states that when he got by the lumber office his horses’ feet would be on the east-bound track, about nine feet from the west-bound track, before he could see. He also testified that he was looking both up and down with his horses under control, but that they began to rear up and plunge when he got to the track and the cars struck him.
    Ira Hoover and John A. Ford corroborated the plaintiff’s description of the crossing.
    Edward Dettrick testified that he was fireman on the engine at the time of the accident, and on the side where he could- see plainly, and in a position to observe, and was looking ; that he saw the team on the side of the office as it came out toward the railroad; that the team started up quickly as if on a trot or a run, and as appeared to him, sprang forward, and that the train at that time was going about forty-five to fifty miles an hour and might have been going five or six miles faster; that 150 feet of the crossing he could not see the plaintiff, but when he got up the least bit closer he could see him sitting on the wagon.
    Although plaintiff stopped near the lumber office at the usual stopping place, he was still bound to continue to use his senses, and if he had a view down the track from where the train came 200 or 300 feet after passing the office a few feet, increasing and enlarging so that when he was still twelve or fifteen feet from the crossing he could have seen the eastbound track to the whistling post nearly sixty-nine rods away, as- estimated by Mr. Bull while on the witness stand, had he looked. If such were the facts and there were no obstructions, the case would be ruled by Carroll v. Penna. R. R. Co., 12 W. N. C. 348, where the court said: “It is vain for a man to say that he stopped, looked and listened if in spite of what his eyes and ears must have told him, he went directly in front of a moving locomotive;” and the numerous other decisions down to Walsh v. Penna. R. R. Co., 222 Pa. 162, approving and settling this legal principle, but this line of decisions applies only where the facts clearly bring the case within it: Beach v. Penna. R. R. Co., 212 Pa. 567.
    May 20, 1909:
    The testimony was not clear and there was a dispute as to the distance the plaintiff could view the track to the east after passing the lumber office, whether the view was obstructed by the box cars and whether the defendant gave proper signals or warnings of the approach of the train which was running at a high rate of speed.
    In view of all this testimony and the uncertainty owing to the curve at the acute angle of intersection and the alleged obstructions at what point a train could be seen after passing the lumber office, the fact that the train was running at a high rate of speed, and the testimony, though strongly cóntradicted that no warning signals were given, that the plaintiff was looking both up and down the track, taken in connection with the testimony of the brakeman and others that the horses sprang or started up when the plaintiff was committéd to the act of crossing, the case, we think, was one for the jury: McNeal v. Ry. Co., 131 Pa. 184; McGill v. Pittsburg & Western Ry. Co., 152 Pa. 331; Davidson v. Ry. Co., 171 Pa. 522; Armstrong v. Penna. R. R. Co., 212 Pa. 228; Doyle v. Chester Traction Co., 214 Pa. 382; Vincent v. Lehigh Valley Transit Co., 220 Pa. 350.
    For the reasons given, the rules above stated were discharged in the manner and upon the conditions as in the orders filed in this case February 2,1909.

      Error assigned was in refusing binding instructions for defendant.

      Henry Streeter and William Davies, of Davies & Davies, with them Frank W. Wheaton and Wm. Maxwell, for appellant.

      L. T. Hoyt, of Hoyt & Schrier, and M. E. Lilley, of Lilley & Wilson, for appellee.
   Per Curiam,

The judgment is affirmed on the opinion of the court below.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Eastburn, Appellant, v. United States Express Company.

      Negligence — Infant—Coasting on sled — Wagon—Evidence.
    Where a large sled holding seven boys coasts down a hill to a city street and either strikes a wagon between its front and back wheels, or is struck by the front wheels of the wagon, and one of the boys is injured, and there is nothing to show that the driver of the wagon saw or could have seen the sled in time to prevent the accident, the driver cannot be charged with negligence merely because he was driving at a high rate of speed.
    Argued March 22, 1909.
    Appeal, No. 347, Jan. T., 1908, by plaintiffs, from judgment of C. P. No. 3, Phila. Co., March T., 1905, No. 416, for defendant non obstante veredicto in case of Margaret H. Eastburn, in her own right, and William D. Eastburn, a minor, in his own right, by his next friend, the said Margaret H. Eastburn, v. United States Express Company.
    Before Mitchell, C. J., Fell, Mesteezat, Pottee and Elkin, JJ.
    Affirmed.
    Trespass tó recover damages for personal injuries.
    At the trial it appeared that the plaintiff, a boy nine years old, was injured on Saturday afternoon, January 14, 1905, in a collision between a sled on which the boy was coasting and a wagon of the defendant. The accident occurred at the junction of Rubicam and Collom streets. There were seven boys on the sled with the plaintiff in front. The hill on which the boys were coasting was very steep. Four boys testified as to the facts of the accident. The two older boys testified that the collision occurred at a point about the middle of the two streets, and that the sled struck the wagon between the front and the back wheels of the wagon. The two younger boys testified that the sled was struck by the front wheel of the wagon somewhere between the center line of Rubicam street and the east curb. When the boys were near the bottom of the hill they saw the horse and wagon and attempted to turn the sled to the right to avoid the wagon. There was testimony that the wagon was being driven at a high rate of speed, and that one of its wheels passed over plaintiff. There was also testimony that as the boys came down they were shouting “Ike, Ike, the railroad spike.”
    The jury returned a verdict for Margaret H. Eastburn for $2,000 and for William D. Eastburn for $1,100.
    On motion for judgment non obstante veredicto von Moschzisker, J., filed the following opinion:
    This was not a case of one in plain sight and about to cross the street in front of a horse, with opportunity on the part of the driver to see the person and avoid an accident, but was a case of a sled moving rapidly, beyond sufficient control of the boys to avoid a collision with one who had no reasonable expectation to look for such an event. In this aspect of the case, the speed of the horse, in our opinion, did not cause the accident, because we- cannot see how that speed in any way contributed to the result. At best, the testimony on the subject of the speed of the wagon was vague. It was to the effect that the horse was going on a gallop, which at least one of the witnesses described as going fast. But one of the boys testified that the sled was going faster than the wagon. As a practical matter, therefore, if the wagon had arrived at a point opposite the middle of Rubicam street or east of that middle, and was struck there by a rapidly moving sled, which all the witnesses say was being turned to the right to avoid an accident, it must necessarily be that the sled was a considerable distance up the hill when the horse and wagon appeared in sight. How the driver could be charged with negligence under these circumstances is not clear, and we are of opinion that the jury by their verdict were not warranted in such a finding.
    There is evidence that there were children with sleds at the bottom of the hill on Collom street at the time of the accident, but whether that meant that they were standing there before the accident or that they arrived at the bottom at the same time as the large sled is not clear. Neither were théir positions in the roadway shown, but if it was clear from the evidence that certain children were standing with their sleds in the roadway in a safe place that fact would not put a driver upon notice that a large sled was likely to run into his wagon at great speed and require him to take steps to avoid that possibility.
    There is also evidence that the boys called out loudly, “ Ike, Ike, the railroad spike” as they came down the hill, but even were it clear that the sound was loud enough to reach the driver’s ears, it is difficult to see- what idea it could convey to his mind if he did not see the boys. The sounds of boys ’ voices in the streets on Saturday is certainly not sufficient warning to require a driver to stop his team and make inquiry as to the location of the sounds and their meaning.
    A number of questions were asked the surveyor with a view of ascertaining at what point upon the hill the driver could have seen the boys had he been looking across the corner of the two streets and before he reached the corner, but the answers throw no light upon the question of negligence, because they were purely hypothetical and assumed as facts what the evidence did not disclose. There was nothing in the evidence to show that'the sled was at any exact point upon the hill when the driver was approaching the corner, and the respective speeds of the sled and the wagon not having been taken into consideration in the calculation the result is pure conjecture. But assuming that the driver when he arrived at the corner could have seen the boys at a considerable distance up the hill coasting down toward him, was he obliged to anticipate the possibility of their steering their sled into his wagon? We do not think he was.
    The driver’s story, to the effect that the sled appeared like a shot out of a cannon, graphically describes the incident, and we do not find that his own admission that when he was walking on that street a night or two before he had seen children sledding on that hill, charges him with negligence on the occasion when the accident occurred. The mere fact that children coasted on that hill without injury on one occasion, while it was properly admitted as evidence, cannot charge the driver with negligence because his wagon was struck in the side by a sled on a subsequent occasion. It is manifest that the driver was lawfully upon the road, and there is nothing in the evidence to warrant the imposition of a duty upon him when he arrived at the corner to stop his team and wait until all the children coasting down that hill should have arrived safely at the bottom.
    In many particulars the case of Gould v. Traction Company, 190 Pa. 198, tried in this court, is strikingly like the case at bar. There a young boy, while riding a bicycle on a street running at right angles to the street upon which the defendant company operated its cars, either ran into the car or the car ran into the bicycle. As is shown by the paper-books on appeal, there was testimony both ways, but the Supreme Court in its opinion states that the car was struck by the bicycle. In that case, as in the present one, the plaintiff claimed that the defendant was negligent in operating its vehicle at an undue speed, and in not avoiding the accident upon due opportunity, and also, as before stated, there was some testimony on the part of the plaintiffs to the effect that the vehicle had run into him and that he had not run into it. Several witnesses for the plaintiff testified in a general but much more exact way to the speed of the car than in the case at bar. In disposing of the case the Supreme Court said: “The speed of the car, however, did not cause the accident. The collision occurred within a moment of the time the plaintiff turned into Tenth street. If the car had been standing still, and the plaintiff had taken the same course, he would have run into it. His difficulty was that he could neither stop quickly nor remain on his bicycle if he stopped. . . . The plaintiff was not misled by the movement of the car, nor surprised in an attempt to do what ordinarily he might have done with safety. He turned toward the car when it was then at his side, because he could neither go forward nor stop. The motorman was not under the circumstances negligent in not seeing him; if he had seen him it was too late to avoid the collision.” With a very little variation, those words could be applied to the case at bar.
    The case of Gould v. Traction Company, 190 Pa. 198, clearly shows that where the testimony as to the speed is of the nature of the testimony in the case at bar, or where the alleged excessive speed cannot reasonably be found from the evidence to be the proximate cause of the collision, that the question of speed should not be submitted to the jury. Also see Moss v. Traction Company, 180 Pa. 389; Cominskey v. Railway Company, 4 Pa. Superior Ct. 631; Yingst v. Railway Company, 167 Pa. 438; and Hooper v. Traction Company, 17 Pa. Superior Ct. 638. In the case at bar it is clear that there was not sufficient in the testimony to reasonably justify a finding by the jury that the horse was being driven at such a speed as to constitute negligence, or even if the horse was going at an undue speed, that the speed contributed to the happening of the accident. The sled was going much faster than the horse and wagon. If we view it that the sled passed between the front and hind wheels of the wagon, or if we view it that the front wheels first came in contact with the sled, in either event, if the horse had been going at a less rate of speed, the conclusion is irresistible that the sled would have struck the horse instead of the wagon, and, in all probability, the injury would have been greater than under the present circumstances. On this point see Goshorn v. Smith, 92 Pa. 435; Pletcher v. Traction Company, 185 Pa. 147; Downey v. Railways Co., 219 Pa. 592. The rate of speed at which the horse was going is really immaterial, for a review of the testimony leads one irresistibly to the conclusion that the sled suddenly darted out and struck the wagon under such circumstances that it cannot be justifiably said that the driver, as an ordinarily careful man, was bound to have seen and avoided the collision. The case is strikingly similar to that of a child who suddenly runs into the front of a moving vehicle, where it has uniformly been held there can be no recovery: Keller v. Railroad Co., 214 Pa. 82, and cases there cited. We cannot hold drivers to be negligent when their only fault is a failure to avoid a collision under circumstances whieh are unusual and not likely to be anticipated: Baker v. Fehr, 97 Pa. 70; Funk v. Electric Traction Company, 175 Pa. 559; Kline v. Traction Company, 181 Pa. 276.
    Much reliance is placed by counsel for plaintiffs upon the testimony of the surveyor as to distance, that is, the distance that the wagon was from the intersecting street at the time the driver could have had a view of the boys on the sled. However, there is not any testimony to justify the jury in finding that the driver did have such a view, or that he was looking in such a direction that he must have had such a view. On the contrary, the uncontradicted testimony is to the effect that the horse was moving on a slippery street, and that the driver’s attention was attracted to holding the horse up and to looking ahead, and therefore that he did not see the boys until they were at such close proximity to the wagon that in a second or so the collision occurred. “Negligence cannot be imputed because of the failure to perform a duty so suddenly and unexpectedly arising that there is no opportunity to apprehend the situation and to act according to the exigency:” McKee v. Traction Company, 211 Pa. 47. There is not any testimony to justify a finding that the driver had knowledge that the boys were sledding on the hill, or that they were likely to be sledding on the hill, at the time he was passing the foot of the hill. It cannot be doubted that for boys to come down a hill such as described in the testimony in this case, on a long sled accommodating seven children, at the accompanying rate of speed which would necessarily follow such a descent, and to run into a city street at the foot of the hill, would be a wrongful act. The tender age of the plaintiff may well have been sufficient, in the view of the jury, to excuse him from the charge of contributory negligence, but that does not change the nature of the act, and, as said in P. & R. Railroad Co. v. Hummell, 44 Pa. 375, “Precaution is a duty only so far as there is reason for apprehension. No one can complain of want of care in another where care is only rendered necessary by his own wrongful act. If the law declares, as it does, that there is no duty resting upon any person to anticipate wrongful acts in others, and to take precaution against such acts, then the jury cannot say that a failure to take such precautions is a failure in duty and negligence.”
    In order to maintain the verdict the plaintiffs are bound to point to evidence which would justify men of ordinary reason and fairness in saying that the defendant’s driver, if he had exercised ordinary care, could have avoided this accident. A most careful review and scrutiny of all of the testimony satisfies us that there is not even what could be justifiably called a scintilla of evidence, which, taken in connection with the other evidence in the case, would justifiably lead to such a finding. Of course, if we were of the opinion that there was a conflict of evidence on material facts, or that the material facts taken together might reasonably be said from any point of view to show such negligence on the part of the defendant's driver, then, even though the court might be of opinion that the preponderance of the evidence was the other way, we would not disturb the finding of the jury other than to grant a new trial. Taking the most favorable view of the testimony that any reasonable mind could justifiably take for -the benefit of the plaintiff, we are brought to the conclusion that the plaintiff has failed to make out his case.
    May 20, 1909:
    The motion for judgment for the defendant non obstante veredicto is granted.

      Error assigned in entering judgment for defendant non obstante veredicto.

      Charles Hunsicker, with him Jos. W. Hunsicker, for appellants.

      James F. Campbell, for appellee.
   Per Curiam,

The judgment is affirmed on the opinion of the court below.


text:
    Long's Estate.

      Wills — Vested and contingent remainder.

    A will made in 1867 and becoming operative by the death of the testator in 1870, which gives a portion of the residue to testator’s niece for life and after her death to her children “living at the time of her decease,” creates in the niece’s children a remainder contingent on their being alive at the time of her death.

      Argued March 22, 1909.
    Appeal, No. 360, Jan. T., 1908, by Randolph Clay Murphey et al., from decree of O. C. Phila. Co., Oct. T., 1882, No. 519, dismissing exceptions to adjudication in Estate of Charles T. Long, deceased.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Exceptions to adjudication.
    Lamorelle, J., filed the following adjudication:
    The fund which is the subject of the present accounting represents the net proceeds arising from a sale in partition in which the accountant was trustee for the share of Helen Y. Shepperd. Upon the death of Helen Y. Shepperd, which occurred March 10, 1908, the principal became presently distributable under the will of Charles T. Long, who died April 11, 1870.
    The provisions of his will, dated March 13, 1867, confirmed by codicil, dated January 24,1870, so far as they apply to the question before the court, are as follows:
    “Item. — All the rest residue and remainder of my Estate Real personal and mixed, whatsoever and wheresoever, I order and direct to be divided into three equal parts and the interest and income of one of the said equal one-third parts, I give devise and bequeath unto my beloved niece, Helen Y. Shepperd for and during the term of her natural life, and from and immediately after her decease then I give devise and bequeath the said equal one-third part of my estate to the children of my said niece Helen Y. Shepperd living at the time of her decease share and share alike.”
    At the time of the death of Helen Y. Shepperd, she had no living child or children. Her one son and only child, John P. Shepperd, died in the year 1897. There was, therefore, no one in existence answering the description of those who, upon her decease, were to take the principal of the estate, and that the gift to her children was contingent upon their being alive at the time of her death under the language of the will is settled by a long line of cases beginning with McBride v. Smyth, 54 Pa. 245 (decided in the year 1876), and ending with Mulliken v. Earnshaw, 209 Pa. 226 (decided in 1904). In the latter of these cases, after the devise to the widow for life, the will provided “and from and immediately after her death or marriage, I give and devise my real estate unto my children then living. . . .” Said Mr. Justice Mitchell:
    “All these remainders are clearly contingent. No child takes a vested interest because, until the happening of the contingency prescribed, the death of the widow, it cannot appear that he will be in the class to whom the devise is made, to wit: those then living, .... that this was the time actually meant by the testator is so clear on the face of the will that it would not admit of contradiction by the presumption of a different intent under any rule of construction.”
    The claim of the administrator of the estate of John P. Shepperd is accordingly disallowed.

      Errors assigned were in dismissing exceptions to adjudication.

      Lucius S. Landreth, with him William A. Gordon, for appellants.
    The law as it stood at the time this will was made and went into effect (1867-1870) was set forth in: Manderson v. Lukens, 23 Pa. 31; Womrath v. McCormick, 51 Pa. 504.
    A will should be construed in the light of the law as it stood at the time the will was made and went into effect: Lisle’s Est., 22 Pa. Superior Ct. 262; Geddes v. Brown, 5 Phila. 180; Hood v. Pennsylvania Society to Protect Children, 221 Pa. 474; Carstensen’s App., 196 Pa. 325; Safe Dep. & Trust Co. v. Wood, 201 Pa. 420.
    A remainder will be held to be vested unless a contrary intention clearly appears: Chew’s Appeal, 37 Pa. 23; Coggins’s Appeal, 124 Pa. 10; Manderson v. Lukens, 23 Pa. 31; Kenaday v. Sinnott, 179 U. S. 606 (21 Sup. Ct. Repr. 233); Roland v. Miller, 100 Pa. 47; Miller’s Appeal, 113 Pa. 459; Ferry’s Appeal, 102 Pa. 207; Keene’s Estate, 221 Pa. 201.
    The intention of the testator, as gathered from the will as a whole, must prevail over technical rules of construction, or the literal meaning of particular phrases; and in this case it was clearly the testator’s intention to create a vested remainder: Provenchere’s Appeal, 67 Pa. 463; Middleswarth v. Blackmore, 74 Pa. 414; Schott’s Estate, 78 Pa. 40; Finlay v. King, 28 U. S. 346; Phillips v. Davies, 92 N. Y. 199.
    May 20, 1909:
    No argument nor printed brief for appellee.
   Per Curiam,

The decree is affirmed on the adjudication of the auditing judge, approved by the court in banc.


text:
    Randal v. Gould, Appellant.

      Evidence — Proof as to insurance — Effect on jury — Notice.
    1. A party sued for damages may not be put to the hazard of a loss because a jury believes him to be protected by insurance, and reference to such insurance is improper; but proof of a radical point, such as notice of a defective title, should not be excluded because it involves the showing collaterally of the minor and irrelevant point of title insurance.
    2. On the trial of an action of ejectment a motion was made to withdraw a juror upon an offer of proof made by the plaintiff that the defendant had not only bought with notice of the fraud in his title, but had paid an extra premium to a title insurance company for indemnification against it. The jury was taken out and argument was had on the motion. The motion was overruled, and the offer was withdrawn. The jury was then brought in. Held, that the trial court committed no error in refusing to withdraw the juror.

      Practice — Trial—Charge.
    3. A trial judge cannot be convicted of error in controverting in his charge a manifestly fallacious argument of counsel.

      Ejectment — Notice—Fraudulent title.

    4. Defendant in ejectment is charged with notice of the fraudulent nature of his grantor’s title, where it appears that he had participated, prior to his taking title, in legal proceedings in which the question of the fraudulent character of the title was raised.

      Mortgage — Mortgage bond — Married woman — Invalidity of mortgage.

      5. A bond executed by a married woman may be valid, although a mortgage accompanying it as collateral, is void for nonjoinder by the husband.

      Judgment — Collateral attack — Efectment.
    6. Where the plaintiff in an ejectment claims title under a sheriff’s deed, and it appears that the judgment on which the execution issued which resulted in the deed was unappealed from, the defendant in the ejectment cannot in that proceeding attack the validity of the judgment.

      Execution — Vend. ex. — Notice to personal representatives.

      7. A vend. ex. issuing after the death of the defendant in the execution without notice to her representatives as required by the Act of February 24, 1834, sec. 33, P. L. 70, is not invalid, if it appears that the defendant had conveyed her land to another before her death, although fraudulently, as against creditors, and that her grantee had come into court and opposed the vend. ex.
    Argued March 22, 1909.
    Appeal, No. 366, Jan. T., 1908, by defendant, from judgment of C. P. No. 2, Phila. Co., June T., 1906, No. 3,475, on verdict for plaintiff in case of Harry L. Randal v. Isador M. Gould.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Ejectment for real estate at 247 South Second street, Philadelphia.
    At the trial the jury returned a verdict in favor of the plaintiff.
    On a rule for a new trial and motion for judgment non obstante veredicto, Wiltbank, J., filed the following opinion:
    This case has been twice tried and twice ably reviewed before us on rules, and we have been assisted in its examination by the industry of counsel inspired by their sense of its importance to two innocent parties. Either the plaintiff or the defendant must eventually find himself the irresponsible victim of a combination of three persons, who, according to the finding of the jury at the last trial, acted with the intention of defrauding one or the other of them. If a fraud was consummated, it was necessarily upon one or the other, either in depriving Randal of the fruits of his judgment, or in passing off upon Gould a title in jeopardy on account of a cloud upon it.
    After the first trial we considered the evidence, and made the rule absolute on the ground that the judge at nisi prius had erred in ruling-that, no matter what the fraud, if any there were, the defendant had taken title without having been put upon notice of it. At the second trial it was conceded that the question of notice arose upon documentary evidence, found in records and other instruments, and that this evidence was for the court in respect of its significance as to notice; that it involved, therefore, a question exclusively of law, and could not be left to the jury for a finding of its legal effect. The trial judge ruled that it showed notice to Gould, and to this ruling he sealed a bill. We think that this ruling was not error.
    The evidence, then, of the fraud has been again considered by us. The jury have found that it was the plaintiff who was defrauded, and in doing so have established facts, of which a concise statement is as follows: On May 8, 1902, one Mary C. Bell, became indebted in $4,000 to the plaintiff, Randal, and executed and delivered to him a bond with warrant for the amount. This bond she attempted to secure by a mortgage of the real estate in dispute, the title to which was in her, but she sealed, signed and delivered her mortgage without joinder of one Alonzo Bell, her husband, then living. It was duly recorded, and shortly after its delivery one Watson, who was then and had been before the professional adviser, as a member of the bar, of her and her husband, instructed the couple that the mortgage was irregular and invalid. Before the payment of the first six months’ interest fell due, Watson and the Bells arranged a sale of the land with one Fisher, a half-brother of Alonzo Bell, in order to avail themselves of the invalidity of the mortgage, and to pass the land beyond the reach of Randal in the event of his using the warrant of attorney attached to his bond. The land was thus, as they hoped, by deed of August 18, 1902, put beyond the reach of a lien of a judgment in favor of Randal. The urgency arose upon the apprehension of the two actors that if they postponed their step until Randal should have demanded his first installment of interest, they would, as the result of Randal’s alarm, find Mary Bell’s land bound by a judgment on her bond, and thus Randal might collect the money lawfully due him.
    The'grantee, Fisher, was a man without an estate. He was a laboring man, some time a motorman, a farm hand, and finally the owner of a small tract for the cultivation of garden products and fowl. He supported a family, on wages and peddling which at no time, according to his showing, exceeded $500 a year. He had no bank account; but about three months before his purchase of the land in question he had saved something under $500; he carried most of his savings “in his clothes,” and he held the rest in a small tin box at his home. It was from these receptacles that he produced to Watson at the settlement $2,000 to be paid to the Bells. His purchase secured to him a store in this city worth at least three times that amount, and which, after the lapse of three years and ten months, he conveyed to the defendant Gould for over $6,000. His deed was executed June 28, 1906. He sold to Gould, he explained, because during his ownership the investment had brought him nothing. He had no knowledge of a negotiation for a sale to Gould till a day or so before he executed his deed, which he did at the instance of Bell, and he did not know what was the price of the land till, at that execution and under the guidance of Watson, he took part of the purchase money, and received the impression that Watson must have accounted to his satisfaction for the balance. Fisher was silent, inactive, uninformed and contented during the term of his ownership, a period as already stated of nearly four years.
    Alonzo Bell had retained during that period the control of the real estate. There was some evidence, although only slight, that when the Bells conveyed to Fisher they took from him and his wife an eventually unrecorded reconveyance of the property. This aspect of the case was presented upon the testimony of a member of the bar and notary public, who acted officially at the instance of Watson; and it was argued for the plaintiff that the probability presented was strengthened by other proofs. On two consecutive days Watson, who was on the same floor of the office building in which the notary practiced, took Bell and wife and Fisher and wife for the acknowledgment of three deeds before the notary, and for the certificate of the latter. At the trial it was conceded that one of these deeds was that from the Bells to Fisher; Alonzo Bell testified that another was a conveyance by him and his wife of other land owned by them; the difficulty of identification attached to the third deed; this was executed by Fisher and wife, but the notary’s record in showing this much, did not show the grantee or grantees. Bell testified to his ignorance of this deed. Fisher said it might have been made in some dealing of his and his wife’s about an inheritance of hers in Gettysburg. Watson, who had introduced the parties to the notary, with admittedly two, and, by tacit admission, three deeds, was emphatic in disclaiming knowledge. The notary testified that to the best of his recollection the third deed was a deed from Fisher and his wife to Bell. The trial judge warned the jury to reach no hasty conclusion on this point.
    Our narration must include details of this character in order that we may justly dispose of certain reasons for the rule for a new trial urged with earnestness at the argument. That Bell managed the property during Fisher’s ownership, received the rents, directed the repairs and paid taxes and other charges, was not seriously disputed. That he did this as owner was, however, earnestly denied, and he produced a power of attorney from Fisher. All of the issues of fact were skillfully discussed, and the findings reached by the jury were the result, not only of the plaintiff’s proofs, but also of those of the defendant, the latter tending to contradict and annul the tendency and value of the former, and the jury deciding after weighing them.
    We find the verdict not against the weight of the evidence. In our opinion, if there was error at the trial, it lay in certain rulings on three, or some of three, points. These embrace.the refusal of the court to withdraw a juror; the charge concerning the alleged character of the third deed testified to by the notary; and the finding of notice to the defendant.

      In behalf of the defendant the court was moved to withdraw a juror upon an offer of proof made by the plaintiff, that the defendant had not only bought with notice of the fraud in his title, but had paid an extra premium to a title insurance company for indemnification against it. Upon the motions being presented, the court ordered that the jury be taken out; and an argument proceeded in their absence. This resulted in an overruling of the motion and the sealing of a bill for the defendant. The offer was withdrawn and the jury were then brought in. The' primary object of the offer was to show by proof of a high order that the defendant had been put upon notice, not only of the invalid and ineffective mortgage, notice of which would have amounted to nothing, but also of the attempt of Bell and his wife to make away fraudulently with the property, to defeat Randal on an execution under his judgment. That a party sued for damages may not be put to the hazard of a loss because a jury believes him to be protected by insurance, and therefore safe, has been decided in many forms of action; and the courts have deprecated mention of an insurance in a general way, and have rebuked counsel who have gone farther, and founded an argument upon it in order to win in a contest against the assured: Lenahan v. Pittston Coal Mining Co., 221 Pa. 626.
    But attention to the situation at this trial must show the inapplicability of the principle. It may be doubted that insurance might not have been shown here, because the primary inquiry was as to notice, and insurance was most persuasive evidence of this. Proof of the radical point of notice should not have been excluded merely because it involved the showing collaterally of the minor and irrelevant point of insurance. This was not a valid reason for exclusion; The plaintiff was entitled to that which made heavily in his favor and without which he might have been prejudiced through a substantial denial of justice, and on the other hand the jury could have been instructed to disregard the other significance of the proof. This would have been the familiar practice of admitting evidence specially, for a stated purpose, to which the court peremptorily restricts it in view of its capacity to prove something else, not admissible on the issue: Sheaffer v. Eakman, 56 Pa. 144. The withdrawal of the offer left the defendant free to object only to the use of the phrase, payment for insurance, in the hearing of the jury, and this objection did not show good cause for any adverse action of the court. This was the more clear because the insurance company’s investigation of the title had been under discussion by both sides as the trial advanced, and its officers and papers had been extensively examined.
    The second point grew out of the charge of the court concerning the alleged character of the third deed: that executed by Fisher and his wife and acknowledged before the notary Lewis. This deed, according to the best recollection of the notary, was from Fisher and wife to Bell; but Fisher testified that it may have been in settlement of some matter of the estate of his wife’s father, a late inhabitant of Gettysburg. His manner and the vagueness of his testimony were criticised by the plaintiff’s counsel in his summing up, and in reply the counsel for the defendant met the strictures offered, and also urged the argument that it had been the duty of the plaintiff to investigate the subject before charging Fisher with an untruth, or at least a weak pretense. Inasmuch as Fisher had not been called by the defendant at the former trial, and the plaintiff had not had notice of his story, the trial judge could not permit the argument to prevail, that the plaintiff could have learned in Gettysburg whether or not Fisher and his wife had executed the deed referred to.
    It was also proper for him to controvert an argument that, even at the stage by that time reached, an investigation might yet be inaugurated by the plaintiff, and upon ascertainment of the unsubstantiality of the story a new trial might be moved for, and redress thus secured in the manner usual upon the discovery of proof after verdict.
    Apart from the suggestion that proof of a negative was within reach, and might serve the plaintiff later if the jury found for the defendant, the argument was exceptionable as glancing at relief to the plaintiff in future action of the court, and as in its enlargement too zealously upholding the shameless partizanship of Fisher. The court charged, therefore, with some vigor on the point, but, as we find, not with a greater degree of emphasis than was required, according to the accepted measure of the duty of a judge.
    The weight of the evidence was with the plaintiff on the issues of fact, and a verdict the other way might have awakened our solicitude. The expressions of the charge on the point raised were timely, and we fail to find in them any reason for directing a third trial of a long and exhaustively presented contest.
    The third point for examination is the finding of the court that the defendant, Gould, had been put upon inquiry before taking title. It was agreed at the trial that this was a question of law arising upon documents in evidence, and the court charged that notice was shown. The error assigned is, not that the question should have been left to the jury, but that, resting as it did with the court, it should have been decided the other way. The defendant argues that the documents did not show notice to him.
    The documents showed how the defendant took his title. It appears that when Randal had obtained his judgment against Mary C. Bell, which was had in the court of common pleas of this county No. 5 to September Term, 1904, No. 1,224, writs of execution duly issued from that court, and a vend. ex. went out returnable to the first Monday of May, 1906. Under this writ the defendant bought the property and paid down the stipulated deposit of $50.00. He failed to comply with the terms of the sale, and on June 27, 1906, he petitioned the court to order, the return of his deposit, on the ground that, whereas the property had been sold on Randal’s writ as that of Mary C. Bell, in fact Mary C. BelJ had then no interest therein.
    This information he acquired upon examination of the record on which the sheriff had sold. That record showed that Fisher, who, as already stated, had taken title from the Bells August 18, 1902, had petitioned the court on April 30, 1906, to stay the execution of Randal’s vend. ex. on the ground that Mary C. Bell had then no interest, but had previously conveyed her title to him; and the record also showed that Randal had on May 3, 1906, filed an answer thereto, setting forth that the deed to Fisher had been executed and delivered fraudulently, and with intent to escape the lien of a judgment apprehended under the bond and warrant which Randal held. This scheme, the answer averred, was conceived and executed with the knowledge of Fisher.
    The same record also showed that on June 27, 1906, which was, as the dates show, prior to the petition filed by the defendant Gould above referred to, Fisher had filed a bill against the plaintiff Randal, of record in the same court and of the same term and number for an injunction to restrain Randal from proceeding with his execution setting up the exhaustion of the title in Mary C. Bell by her conveyance to Fisher. This bill was filed by the attorney of Fisher and the attorney of the defendant Gould. An affidavit by way of answer to this bill was on June 29, 1906, filed by Randal, setting up the fraudulent transaction; but between the dates of the filing of the bill and of the coming in of the affidavit, that is to say, on June 28,1906, Gould had taken his deed from Fisher.
    Gould took his deed from Fisher upon the faith of a title insurance policy of the Equitable Trust Company, stipulating to indemnify him from actual loss in the premises. The application for this insurance was made by Gould’s attorney, and it exhibited as foundation of risks, “objections to title known, Randal v. Bell, Common Pleas 5, Sept. Term, 1904, No. 1224, or rumored.”
    In the meanwhile Randal had proceeded under an alias vend. ex. of June 2, 1906, and had bought in the property, obtaining the sheriff’s deed therefor on July 16, 1906. On this deed Randal depended at the trial.
    Upon this evidence, as we have already said, we could find no error in the charge of the trial judge that Gould had been put upon inquiry of the alleged fraud of certain of his predecessors in the title.
    Two other points were urged upon us: That the bond on which Randal had secured his judgment was void because the mortgage which was given to fortify it was a nullity, and that the vend. ex. on which the sale was made by the sheriff was also void because it had gone out after the death of Mary C. Bell without notice to her representatives: Act of Assembly February, 24, 1834, sec. 33, P. L. 70.
    These points need not be discussed. The judgment of a court of concurrent and equal jurisdiction has been relied upon by the plaintiff, and it is not competent for us to go behind it to inspect the bond. As the foundation of the plaintiff’s case that judgment stands unappealed from and valid. We may note, however, that in any event an invalidity of the mortgage could not nullify the bond. This latter expressed and established the obligation of a woman who, under the law, was competent to execute and deliver it. A futile effort on her part to support it by the pledge of her land was a secondary and collateral circumstance not bearing in any degree upon the liability primarily established: McCoy v. Niblick, 221 Pa. 123; King v. Grannis, 29 Pa. Superior Ct. 367.
    An analogous criticism may be made of the impeachment here of the process of another court. No appeal lies to us from that court, and the presumption of regularity in the execution which arises upon the acknowledgment and delivery of a sheriff’s deed is not rebutted by any evidence in the record of the death of Mary C. Bell before vend. ex.; we do not think that it is expedient to enlarge upon this situation because of the paramount consideration that, no matter what the conclusion as to the regularity of the vend, ex., it must be admitted that the act of February 24, 1834, does not apply, because at the time of her death Mary C. Bell was not the owner of the land, and her deed to Fisher, whether within the statute of Elizabeth or not, could not have been denied by her if living. She had passed her title irrevocably, and her personal representative would have had no standing to oppose the execution. If her .deed had constituted Fisher her trustee, which is the utmost that could be claimed by an avoided or defrauded creditor, not the less the legal title was in him, and he had had full notice in the premises and had come into court to oppose the vend. ex. as has already been shown from the record, and thus had had his day: Reichart v. Castator 5 Binney, 109; Murphy v. Hubert, 16 Pa. 50; Colborn v. Trimpey, 36 Pa. 463. Cases applying by analogy being decisions upon the effect of the thirty-fourth section of the act of February 24, 1834, are McCormick v. Skelly, 201 Pa. 184; Smith v. Grim, 26 Pa. 95; Drum v. Painter, 27 Pa. 148; Irwin v. Hess, 12 Pa. Superior Ct. 163.
    May 20, 1909:
    The rule for a new trial is discharged.
    The motion for judgment non obstante is overruled.

      Errors assigned were various rulings on evidence and instructions.

      V. Gilpin Robinson, with him B. I. DeYoung, for appellant.

      Stanley Folz, with him Leon H. Folz, for appellee.
   Per Curiam,

The judgment is affirmed on the opinion of the court below.


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

      Negligence — Railroads—Grade crossings — Case for jury.

    1. Where the plaintiff in an accident case makes out a prima facie case by his own testimony, the case should be submitted to the jury, although subsequent portions of plaintiff’s own testimony may be at variance with his first account.
    2. Where in a grade crossing accident case the plaintiff testifies that on approaching the track he stopped and his view being partially obstructed in one direction he got out of his carriage, walked forward to the track, looked in both directions and saw the track perfectly clear and then went back, got into the carriage and drove forward, looking and listening as he did so, his case is for the jury, even if subsequent portions of his testimony are at variance with this account.
    3. The credibility of testimony in general is for the jury and the remedy for a perverse verdict or one against the weight of the reasonable and properly credible evidence is a new trial — a remedy that ought to be freely applied whenever the verdict in the opinion of the court is perverse in the sense that it goes beyond the limits of a reasonable difference of opinion upon the facts as proved or admitted. But the remedy in this form is not the same as that by nonsuit, and care should be taken to avoid confusing them.
    May 20, 1909:
    Argued March 23, 1909.
    Appeal, No. 312, Jan. T., 1908, by plaintiff, from order of C. P. No. 2 Phila. Co., Sept. T., 1906, No. 5,020, refusing to take off nonsuit in case of John J. Sloan v. Philadelphia & Reading Railway Company.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Barratt, J.
    The opinion of the Supreme Court states the case.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      Augustus Trash Ashton, with him Maurice V. Daniels, for appellant.

      W. C. Mason, with him Gavin W. Hart, for appellee.
   Per Curiam,

The plaintiff testified that on approaching the track he stopped and his view being partially obstructed in one direction he got out of his carriage walked forward to the track, looked north and south, and saw the track perfectly clear. He then went back, got into the carriage and drove forward, looking and listening as he did so. Having thus affirmatively made out a case by testimony which if believed showed it clear of contributory negligence, whether it was rebutted or not by other testimony was for the jury. Even if subsequent portions of plaintiff’s own testimony were at variance with this account the question of credibility between them was for the jury.

It is strongly urged that the plaintiff’s account was so improbable as to be unworthy of belief and it would seem that the trial judge was of that opinion. But the credibility of testimony in general is-for the jury, and the remedy for a perverse verdict or one against the weight of the reasonable and properly credible evidence is a new trial — a remedy that ought to be freely applied whenever the verdict in the opinion of the court is perverse in the sense that it goes beyond the limits of a reasonable difference of opinion upon the facts as proved or admitted. But the remedy in this form is not the same as that by nonsuit, and care should be taken to avoid confusing them.

Judgment reversed and procedendo awarded.


author: Pee Cueiam,

text:
    Veit v. The Class & Nachod Brewing Company, Appellant.

      Negligence — Master and servant — Incompetent fellow servant — Case for jury.

    In an action against a master for the death of a servant alleged to have been caused by the negligence of a fellow servant, the case is for the jury where the evidence for the plaintiff tends to show that the defendant placed in charge of a steam regulator an engineer who was known to be a man of intemperate habits, and intoxicated at the time of the accident, and where it appears that the accident resulted from excessive air pressure due to the fault of the engineer.
    Argued March 24, 1909.
    Appeal, No. 61, Jan. T., 1909, by defendant, from judgment of C. P. No. 1, Phila. Co., June T., 1903, No. 2,615, on verdict for plaintiff in case of Katherine Veit v. The Class & Nachod Brewing Company.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Magill, J.

      May 20, 1909:
    For the facts see the opinion of the Supreme Court and 216 Pa. 29.
    Verdict and judgment for plaintiff for $7,500. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Thomas Raeburn White, with him W. W. Smithers, for appellant.

      John M. Vanderslice, with him Francis Shunk Brown, for appellee.
   Pee Cueiam,

This case being close on its facts has had more than usual consideration, both in the court below, and in this court. When it was here before (216 Pa. 29) it was held that the evidence was sufficient to establish a prima facie case of negligence in giving the night engineer charge of the steam regulator when he was known to be a man of intemperate habits, and there was some evidence that he was intoxicated on the night of the accident. It was therefore held to be a case for the jury. At the last trial, from which we have this present appeal, the testimony was substantially the same, and the judge was therefore right in submitting it to the jury.

Judgment affirmed.


text:
    Siddall, Appellant, v. Philadelphia.

      Road law — Location of street — Damages for vacation — Permissive railroad crossing.

    Where a street is laid out upon a city plan up to the line of a railroad upon each side, but not across the right of way, and it appears that there was a permissive crossing to the public by the railroad company, the vacation of the portion of the street on one side of the railroad will not entitle the owners of property abutting on the portion of the street on the other side of the railroad to recover damages for such vacation; and this is especially so where there is no evidence to show that the crossing on the vacated side joined any well-defined road which at any time corresponded with the plotted lines of the street on that side.
    Argued March 25, 1909.
    Appeal, No. 5, Jan. T., 1909, by plaintiff, from judgment of C. P. No. 3, Phila. Co., March T., 1904, No. 4,453, for defendant non obstante veredicto in case of Joseph H. Siddall, Jr., v. City of Philadelphia.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Appeal from award of jurors. Before McMichael, P. J.
    At the trial the jury returned a verdict in favor of plaintiff for $2,000.
    Subsequently on a motion for judgment for defendant non obstante veredicto Feeguson, J., filed the following opinion:
    The claim in this case is based upon the act of the municipal authorities in striking from the city plan Ruscomb street from the east line of the Philadelphia, Germantown and Norristown Railroad eastward to Twentieth street. This act of the municipal authorities was taken in 1902. Ruscomb street east of the railroad had existed upon the city plan from 1886, and in that year Charles W. Henry, the owner of the soil over which the street was plotted, dedicated the soil of the street within the plotted lines to the city of Philadelphia for public use and the street was graded down to Twentieth street. Previous to 1886 Ruscomb street east of the railroad did not exist officially on the plans of the city of Philadelphia from 1877. Prior to 1877 upon several plans Ruscomb street was on the city plan, but in different positions, the variation between the location of the street on these plans running as high as eighty-four feet.
    West of the railroad Ruscomb street had existed for a great many years, and was physically opened and houses erected thereon, and the claim for damages is made on behalf of the owner of property on Ruscomb street west of the railroad by reason of the change in the city plan in 1902, striking from the plan Ruscomb street east of the railroad.

      The trial judge, in his instructions to the jury, pointed out to them that as a matter of law there could be no claim for damages against the city by reason of this change in the plan so far as it affected the properties west of the railroad, unless they could'find from the evidence that the connecting link across the railroad was established as a public use, for if the public had no legal right to cross the right of way of the railroad at the point involved, it would follow that any damage which the property owners west of the railroad suffered by reason of the striking of the street from the plan would not be different from that of the public at large. It was sought to be shown that the public had a right to cross the railroad at this point. Evidence of several witnesses was heard, which was to the effect that from about 1875 there had always been a way through Ruscomb street and across the railroad to Twentieth Street. The street was never paved on either side of the railroad, and while on the west side the line of the street was clearly marked on the south line, to the east of the railroad its location was not clearly defined. The witnesses testified that Ruscomb Street was a well traversed thoroughfare across the railroad at this point, and while some of them thought the crossing over the railroad was exactly in line with the actual lines of the street west of the railroad they were not certain, and the plaintiff, Siddall, admitted it was at the north line of the street. The crossing itself was planking laid between the tracks. The station on the railroad at the present time exists on the west side of the right of way. There was evidence that formerly the station existed on the east side of the railroad. There was evidence on the part of the defendant to the effect that the planking was at the station, was laid down and maintained by the railroad at its own expense; and that the crossing of the railroad did not correspond with the plotted lines of Ruscomb street either east or west of the railroad, but was north of those lines, and that the driveway of Ruscomb street west of the railroad proceeded almost to the fine of the right of way when it curved to the north to the crossing, and on the east side it curved to the south to the lines of Ruscomb street again.

      We are of opinion that the learned trial judge was entirely accurate in his statement that there could be no recovery unless there was a public way across the right of way of the railroad at this point connecting Ruscomb street on the east and west sides of the railroad, but we think the evidence was not sufficient to sustain a finding that there was a public way across the railroad which could be held to be in law a public street. It is true there was evidence that there was a crossing which was used by the public for a number of years, but to establish a way by prescription it has always been held that the evidence must show not only that there was a user, but that that user was hostile and adverse and under a claim of right. There must be a user without consent, or municipal action looking toward the establishment of a public way. There was no evidence of any municipal action with this end in view. The plotting of a street across the right of way of a railroad, while it is not in any sense binding upon the municipality, may be taken as an indication of an intention to lay out in "the future a street across the right of way. No such plotting was made by the municipality in this case. When a street crosses such a right of way and has been used by the public for a long- period of years as an open street, and the crossing is paved or maintained in a condition for a crossing of the tracks by the municipality, such paving may be construed to be municipal action consistent with the existence of a public street or of acquiescence on the part of the railroad and an intention on its part to dedicate to public use. There was no evidence in this case that the crossing was maintained by the municipality, and the only evidence on the subject was to the effect that the crossing was maintained by the railroad company itself.
    We have, therefore, upon the part of the plaintiff, evidence only to the effect of the user. The evidence as to its adverse and hostile character was not sufficient to sustain a finding that a public way or street existed. If the railroad company, for the purpose of making a convenient mode of access to its station on the east side of the railroad for the public coming from the west side, chose to maintain a crossing there at its own expense, the mere fact that the public used it generally for other purposes would not estop the railroad company from exercising its right at any time in its discretion to abolish the crossing, and, subsequently, when the station was established on the west side of the railroad, if, for the convenience of the public to the east of the railroad, it continued the maintenance of that crossing, the same rule would apply. In Esling v. Williams, 10 Pa. 126, it was held: “A user will not give title to the public when it is under leave or favor and by permission and at the will of the owner. The presumption may be repelled by evidence, which accounts for the possession or user, without resorting to a title by grant or otherwise.” In Griffin’s Appeal, 109 Pa. 150, it was held: “Long continued use by the public is evidence of an intent to dedicate, but it is by no means conclusive, and always yields to contrary proof of a satisfactory character.” In Root v. Com., 98 Pa. 170, the illustration is given of the use by the public of ground in front of a warehouse extending to the river, and it was pointed out that though the owner permitted the public to use that ground continuously, it gave the public no right against the will of the owner, because the use was not adverse to him but was by his consent, and it was not exclusively used by the public, but in common with the owner himself for travel and other purposes. It was also pointed out that no length of time during which the property was so used could deprive the owner of his title or give the community the right to abate the owner’s fences over the property as a nuisance on the ground that the public had acquired a legal easement. In the same case it was pointed out if the owner invited the public to use the way, he would not be likely to protest against the use and prevent it, and if he permitted the use he naturally would not object to it.
    The evidence, therefore, as has been stated, only amounted to proof of the use for a period over twenty-one years. Nothing in the nature of a street existed; the crossing consisted only of planking suitable for wagons, with no sidewalks. The railroad company, however, has produced evidence to the effect that the crossing was maintained in a condition for travel by the railroad company itself. There was no evidence of any character of municipal action with regard to the crossing that could be taken to be adverse. No evidence .was offered in rebuttal to contradict this evidence as to the maintenance of the crossing by the railroad company, and, as was said in Griffin's Appeal, 109 Pa. 150, the existence as to the use of the street to establish the easement must yield to the definite and contradictory proof showing that the use was permissive only: Penna. R. R. Co. v. Freeport Borough, 138 Pa. 91.
    But for another reason we are of opinion the claim of the plaintiff cannot be sustained. There was no evidence to show that the eastern side of the crossing over the railroad joined a well-defined road which at any time corresponded with the plotted lines of Ruscomb street on that side. The plans showed that Ruscomb street on that side of the railroad had been changed and was located at several places and ran at different angles. If the actual roadway to the east of the railroad as used by the public was always in the same place, and there was no change as to its location, it must necessarily have been at times during the period of twenty-one years that the public traveled over private property, for the evidence shows that from 1877 to 1886 no street existed on the plan. There is no contention here that a prescriptive right was obtained over this private property, and it must be said that, so far as the evidence is concerned, when we take into consideration the fact that the claim for damages is based upon the vacating of a street laid down definitely upon the city plan, that the evidence fails to show that the crossing corresponded at any time with the lines of the street. The evidence is indefinite and vague and lacking in those qualities of accuracy which the law requires in such cases. Even though the evidence were positive and clear, showing an adverse and continued user of a crossing sufficient to make it a public way, it is not sufficient to support a finding that that way at any time met the lines of the street on the east side as they were plotted on the plan. It must not be forgotten that the claim is based upon the vacation of a street on the east side of the railroad, and, in order to establish a claim peculiar to the present plaintiffs, the connection between the west side and the east side must be legally established. In our opinion, the evidence fails to establish that connection.
    Another matter might be referred to, which throws light upon the physical conditions, although of no weight in arriving at the conclusion of the court.
    The logic of a verdict for plaintiff in this case would be that the public had acquired an easement across the right of way of the railroad without formal grant, although the railroad was not a party to the proceeding.
    There was evidence to the effect that the railroad company, at or about the time of the action of the municipal authorities, erected a high board fence along both sides of its right of way, and removed the planking. Had appropriate action been taken against the railroad for maintaining a nuisance in these fences, or in equity for their removal, the right of the public, if any existed, would doubtless have been established. The erection of these fences undoubtedly prevented the public from passing across the railroad at this point, and it was this fact, if anything, which caused the actual damage to the claimants. Instead, however, of taking action to require the removal of these fences and to restore the crossing which might have established the easement across the right of way, if one existed, the claimant has sought to hold the municipality in damages for closing a street on the east side of that right of way. With the fences existing, it was certainly immaterial, so far as the claimant was concerned, whether the city maintained Ruscomb street on the city plan on the east side or not; it had lost its peculiar value to him.
    The motion for judgment for defendant non obstante veredicto is granted.
    We are also of opinion that the verdict was excessive and upon that ground a new trial should be granted, but in view of our ruling upon the motion for judgment non obstante veredicto it is unnecessary to further express our views upon that question or to now dispose of that motion.

      Error assigned among others was in entering judgment for defendant non obstante veredicto.

      May 20, 1909:

      Samuel H. Kirkpatrick, with him Joseph G. Lester, for appellant.
    The evidence was sufficient to establish the crossing as a public highway: Pittsburg, Fort Wayne, etc., Ry. Co. v. Dunn, 56 Pa. 280; Waters v. Philadelphia, 208 Pa. 189; Phila., Wilmington, etc., R. R. Co. v. Philadelphia, 9 Phila. 563; Com. v. Llewellyn, 14 Pa. Superior Ct. 214; Com. v. P. & R. R. R. Co., 135 Pa. 256.

      John Lamb, with him William Gray Knowles, assistant city solicitor, and J. Howard Gendell, city solicitor, for appellee.
    There is no doubt that a crossing existed there for more than twenty-one years, but there was no evidence in the case of an adverse user; on the contrary, all the evidence was that the user was permissive only, and that the crossing was kept in repair by the railroad company: Weimer on Pennsylvania Railroad Law, 121; Pennsylvania Railroad Co. v. Freeport Borough, 138 Pa. 91; Reading Co. v. Seip, 30 Pa. Superior Ct. 330; Stewart’s App., 56 Pa. 413; Barker v. Hartman Steel Co., 129 Pa. 551; Pittsburg, Ft. Wayne & Chicago Ry. Co. v. Peet, 152 Pa. 488; Pennsylvania Schuylkill Valley R. R. Co. v. Reading Paper Mills, 149 Pa. 18; Hasson v. Oil Creek & Allegheny River R. R. Co., 8 Phila. 556.
   Per Curiam,

The judgment is affirmed on the opinion of the court below.


text:
    Phillips, Appellant, v. Westminster Church.

      Church law — Sale of church building — Removal to more convenient locality.

    A religious corporation owning a church building has the right, in the absence of any provision in a statute or in its charter to the contrary, to sell the church for .the purpose of rebuilding in another locality more convenient to its members, and the mere fact that the contributors to the fund from which the church was built intended that it should be built where it was, does not in itself involve a condition that the place of worship should not be removed if the best interests of the congregation required a removal.
    Argued March 29, 1909.
    Appeal, No. 362, Jan. T., 1908, by plaintiff, from decree of C. P. No. 2, Phila. Co., March T., 1906, No. 1,624, dismissing bill in equity in case of Phillips et al. v. Westminster Church.
    Before Mitchell, C. J., Fell, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity to restrain the sale of the Westminster church situated on the west side of Broad street near Fitzwater street of the city of Philadelphia.
    Sulzberger, J., filed the following opinion:
    The principles that govern the adjudication of this case are quite simple. The Corporation known as the Westminster church owns the building on Broad street, and has, at common law, the right to sell it if the same is no longer suitable for its business, and with the proceeds build or buy another. This common-law right exists unless taken away by statute or charter, and no provision of either statute or charter has been pointed out, which abridges the right. On the contrary, art. 16 of the charter of 1859 expressly provides, in strict conformity with the act of 1855, that “All property, real and personal whatsoever now pertaining or that shall hereafter be devised, bequeathed or conveyed to said corporation shall be taken and held by said trustees and shall inure subject to the control and disposition of the lay members of the said church.” Here there is a church corporation vested with full power to hold and dispose of all its property subject to but this one condition; it is incorporated as a Presbyterian church. It has no power to divert its revenues, or to expend them, for any other purpose than the worship of God and to maintain the building as a place of worship.
    Unless, therefore, it shall be clearly shown by the terms of a specific gift constituting an appreciable portion of the fund that raised the church, that a trust had been fastened upon the corporation expressly to remain forever in the particular location designated, no question of the right of removal can arise.

      There is, however, nothing in the evidence to show that this church was erected for any other purpose than as a place of worship. No neighborhood was specially sanctified by the terms of any gift or other provision. Probably a number of persons subscribed and paid their money toward the erection of the Broad street church, because it was in a neighborhood which they thought adapted for efficient gospel work. The building was erected, undoubtedly, where the people who gave the money wanted it to be placed. If this constituted a condition, express or implied, it was fulfilled.
    Complaint, however, is now made that it is about to be broken, and this necessitates an examination of the meaning of such a condition. Upon this point, the language of Mr. Justice Dean, in Cushman v. Church of the Good Shepherd, 188 Pa. 438, is controlling, He there held that such a condition cannot mean that through all the mutations of time a church will be perpetually maintained at a particular spot, but that, on the contrary, it must be assumed that both the corporation and the contributors made the condition, subject to the law of the church, that if the congregation became depleted in numbers and substance by reason of death and removals or shifting of population, this particular church might be disposed of and all the associations connected with it should, as nearly as possible, be transferred to a successor, wisely located in a new field. That it was forever to remain in that place, even though not a single worshiper entered its doors, is an unreasonable interpretation.
    The facts as found show that the great majority of the congregation and the corporators are agreed that the removal from the Broad street site is wise, and this conclusion is affirmed by the supervisory tribunal of the church. That it is disagreeable to some who have the welfare of the church at large and of this particular congregation at heart, cannot alter the matter. Unanimity of thought and conduct is a goal which, even if it were desirable to be reached, will forever remain unattainable. In practical questions, the legally constituted majority must rule.
    There is, of course, a class of church disputes, concerning which there is a long line of cases, in which the minority triumph over the majority. These are all cases in which religious questions give rise to a schism, and in these the law operates to prevent a diversion of trust funds, whether by a great majority or a small minority. The case before us is entirely devoid of this element. It is, as viewed by the law, a merely practical business question. This corporation thinks it can in another place carry on its business more advantageously than in its present building. It therefore intends to sell its old place and with the proceeds buy a new one which will be better adapted. The right to do this is so obvious and necessary that in no ordinary business corporation could a man be found to question it. In a mere business question like this, however, the church corporation stands before the law exactly like any other corporation. It has the right to exercise its business judgment.
    Applying these principles, we find that on the night of February 28, 1906, when the corporation authorized the removal of the congregation temporarily to the Greenway church, West Philadelphia, with a view to building a union church for the enlarged congregation, the removal was legally effected, and that the same, if it needed confirmation, was validly approved by the act of the Presbytery of March 5, 1906.
    We find, further, that the sale approved on April 17, 1906, and on October 31, 1906, was approved at meetings .validly called. The objection that the call was read from the Westminster pulpit in what had formerly been Greenway church, is of no force. When the removal was properly sanctioned on February 28 and March 5, it became lawful to reduce into act the resolution to remove, and when the session did, on the first Sabbath in April, 1906, actually remove the Westminster Church to West Philadelphia, the new pulpit became the pulpit of the Westminster Church from which notices were to be read.
    The notices for the meetings of April 17, 1906, and October 31, 1906, were read from that pulpit, and, therefore, those meetings were validly called: Craig v. First Presbyterian Church, 88 Pa. 42. The corporation’s action in ratifying the contract of sale of the property was legal and valid. We think the plaintiffs have no good cause to complain and the bill must be dismissed with costs.
    May 20, 1909:

      Error assigned was decree dismissing the bill.

      William H. Burnett, with him William H. Wood, for appellant.
    Plaintiffs were entitled to a decree in their favor: Langolf v. Seiberlitch, 2 Pars. 64; McAuley’s App., 77 Pa. 397; Kerr’s App., 89 Pa. 97; Krecker v. Shirey, 163 Pa. 534; Mackenzie v. Trustees of Presbytery, 3 L. R. A. (N. S.) 227; Bose v. Christ, 193 Pa. 13; Ramsey’s Appeal, 88 Pa. 60; Roshi’s Appeal, 69 Pa. 462; Sutter v. First Reformed Dutch Church, 42 Pa. 503; Jones v. Wadsworth, 4 W. N. C. 514; Attorney-General v. Coopers’ Co., 19 Ves. 187; Attorney-General v. Vivian, 1 Russ. 226; Ward v. Hipwell, 3 Giff. 547; Campden Charities, L. R. 18 Ch. Div. 310.

      M. Hampton Todd, with him T. Elliott Patterson and Robert H. Hinckley, for appellees,
    cited: Krecker v. Shirley, 163 Pa. 534; Ehrenfeldt’s App., 101 Pa. 186; Fernstler v. Seibert, 114 Pa. 196; McGinnis v. Watson, 41 Pa. 9; Ramsey’s App., 88 Pa. 60; McBride v. Porter, 17 Iowa, 203; Craig v. First Presbyterian Church of Pittsburg, 88 Pa. 42.
   Per Curiam,

The judgment is affirmed on the opinion of the court below.


text:
    Michener’s Estate.

      Bill of review — Laches—Orphans’ court — Decedents’ estates.

    Where certain annuitants under a will are represented at the audit of the executor's account by an attorney acting under a writing in the nature of a power of attorney, and the court decrees that a mortgage be set aside in the hands of the executors to secure the payment of the annuities, and the annuitants accept the income therefrom for nearly five years without objection, and it appears that they have suffered no loss, and have incurred no risk by the action of the court, they will not on a bill of review be heard to complain that their annuities were not charged upon the whole residuary estate under the terms of the will.
    Argued March 31, 1909.
    Appeal, No. 71, Jan. T., 1909, by Emma Gertrude Rumsey et. al., from decree of O. C. Phila. Co., Jan. T., 1903, No. 575, dismissing petition for bill of review in Estate of Israel Michener, deceased.
    Before Mitchell, C. J., Fell, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Petition for bill of review.
    Ashman, P. J., filed the following opinion:
    The petitioners are entitled under the will of the testator to the income of $15,000 each for life; on the death of the testator’s wife or daughter, to the income for life to each of an additional sum of $5,000. The testator died December 30,1893. In February, 1903, the petitioners with other parties in interest, authorized by a writing in the nature of a power of attorney, counsel to represent them at the audit of the executor’s account. By the adjudication of that account which was confirmed by agreement of counsel for all parties, on April 7, 1903, the sum of $30,000 invested in a certain mortgage of that amount, was set aside in the hands of the executors, to secure the payment of the aforesaid income to the petitioners, and the income has ever since been regularly paid. The petitioners aver that they received no notice of the audit nor of the award, and that their earliest knowledge of the action of the court, was had in January, 1908. They aver that the income payable to them, and the principal out of which it arises, are, by the terms of the will, charged upon the residuary estate, and that it was error to award to them the security in question; and they pray that a sum shall be secured to them upon the residuary estate, sufficient to yield an assured income free from all contingencies.
    Assuming the facts set up by the petitioners to be true, and their conclusions of law to be correct, their unexplained delay of. four years and nine months, and their continuous receipt of income under the will during that period, are an acquiescence in the acts of the executors and of the court, which, of itself, effectually bars them from the relief prayed for: Scott’s Appeal, 112 Pa. 427. They have not shown that they have suffered any loss nor incurred any risk by the acts now complained of. On the contrary, it is quite probable that the mortgage will yield a larger return than the income from the investments of the estate, which the testator directed to be averaged, and paid according to that average, to the cestuis que trusts.
    May 20, 1909:
    For the reasons stated, the petition for review is dismissed.

      Error assigned was decree dismissing the petition.

      Horace M. Rumsey, for appellants.
    We submit that the doctrine of laches cannot be applied where the petition relates to an error of law apparent oh the face of the record, and no distribution has been made: George’s Appeal, 12 Pa. 260; Johnson’s App., 114 Pa. 132; Nimick’s Est., 179 Pa. 591.

      John G. Johnson, with him Maurice Bower Saul, for appellee.
    Appellants have been guilty of such gross laches that they are wholly without equity: Scott’s App., 112 Pa. 427.
   Per Curiam,

The decree is affirmed on the opinion of the court below.