text:
    Rahm’s Estate
    (No. 1).

      Guardian and ward — Trust and trustees — Evidence—Presumption of settlement — Laches.
    The estate of a deceased guardian and trustee will not be hold liable for assets alleged to have been omitted from his accounts, where it appears that the ward instituted no proceedings to charge the estate until after twenty-five years from the time he reached his majority and after the death of the guardian, that the court records showed that there was no concealment as to the alleged omitted assets, and that no trick or contrivance had been resorted to with the intention of allaying suspicion and preventing inquiry. Such proceedings should be dismissed because of insufficient proof of fraud; of the lapse of time; of the death of the guardian and trustee; of the presumption of settlement and consequent bar by the statute; and of the petitioner's laches.
    Argued Oct. 30, 1907.
    Appeal, No. 73, Oct. T., 1907, by Fidelity Title & Trust Company, Ancillary Administrator of the Estate of James H. Hopkins, deceased, from decree of O. C. Allegheny Co., Oct. T., 1905, No. 236, dismissing exceptions to adjudication in Estate of Virginia Rahm, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter Elkin and Stewart, JJ.
    Reversed.

      Exceptions to adjudication.
    From the record it appeared that Virginia Rahm died in 1870, leaving a will by which she appointed James J. Hopkins her executor. Hopkins subsequently became a trustee of the property left in trust by the will, and also thereafter a guardian of Edward Rahm, Jr., a son of Virginia Rahm. Edward Rahm, Jr., became of age on June 27,1881. Shortly thereafter Hopkins filed his final account as guardian, and made settlement with his ward. In 1905, Edward Rahm, Jr., filed a petition for a citation to the Fidelity Title & Trust Company, ancillary administrator of the estate of James H. Hopkins, deceased. He claimed that Hopkins, as executor, trustee and guardian, had omitted from his accounts securities aggregating in value $31,512.56.'
    The court in an opinion by Hawkins, P. J., sustained an adjudication in which the above amount was awarded to petitioner, together with interest from October 5,1875, compounded at four per cent, and amounting to $74,510.99, making an aggregating surcharge of $106,023.55.
    Miller, J., filed a dissenting opinion which is quoted in part in the opinion of the Supreme Court.

      Error assigned was the decree of the court.

      Charles P. Orr, of Orr & Lazear, and D. T. Watson, for appellant.

      George R. Wallace, with him Henry A. Damis and Thomas Watson, for appellee.
    November 14, 1907:
   Per Curiam,

In the dissenting opinion in the court below, Judge Miller sums up the essential facts as follows:

“ From the time petitioner became of age until after Hopkins’ death in 1906, a period of twenty-five years, he is absolutely silent, and yet the record of every transaction, the disclosure of every share of stock, of every item of property belonging to his mother or his father’s trust estates, were an open book in the proceedings of this court; nothing is concealed by the trustee or guardian; he was not silent as to these so-called omitted assets; lie did not resort to a trick or contrivance intending to allay suspicion and prevent inquiry; on the contrary, in the fullest manner, is full disclosure made of the existence of the assets belonging to these estates; every proceeding was in the direct line of search from 1875 ; the indexes with reference to them are as full as to any proceeding relating to any transaction in this court, connected with the settlement of an estate.”

And he concludes: “ I would dismiss the proceeding because of insufficient proof of fraud; of the lapse of time; of the death of Hopkins; of the presumption of settlement and the consequent bar by the statute; and of petitioner’s laches.”

These are the correct conclusions from the whole case. Any one of them would require a reversal of the decree.

Decree reversed and petition dismissed at the costs of the petitioner.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Rahm’s Estate
    (No. 2).
    Argued Oct. 30, 1907.
    Appeal, No. 73, Oct. T., 1907, by Edward Rahm, from decree of O. C. Allegheny Co., Oct. T., 1905, No. 236, dismissing exceptions to adjudication in Estate of Virginia Rahm, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Appellant claimed that the surcharge of the guardian should have been larger. See preceding case.
    November 14, 1907:
   Per Curiam,

Appeal dismissed, with costs to be paid by appellant.


author: Mr. Justice Brown,

text:
    Commonwealth v. Ramunno, Appellant.

      Criminal law — Murder—Assault and battery with intent to kill — Twice in jeopardy — Autrefois convict — Habeas corpus.

    Where a person has been convicted of assault and battery with intent to kill, and thereafter his victim dies, and he is indicted for murder, he cannot plead autrefois convict as a defense, since he has not been placed twice in jeopardy'for the same offense,
    Where a person has been convicted and imprisoned for assault and battery with intent to kill, and thereafter his victim dies, he may be removed from the penitentiary by a writ of habeas corpus at the instance of the district attorney, and indicted and tried for murder.
    Argued Oct. 15, 1907.
    Appeal, No. 111, Oct. T., 1907, by defendant, from judgment of O. & T. Jefferson Co., Jan. T., 1907, No. 2, on verdict of murder of the first degree in case of Commonwealth v. Dominic Ramunno.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Indictment for murder.
    Before Bouton, P. J., specially presiding.
    The facts are stated in the opinion of the Supreme Court.
    Verdict of guilty of murder of the first degree, upon which judgment was passed.

      Error assigned was in overruling motion in arrest of judgment. , ..

      Raymond E. Brown, with him Jacob L. Fisher, and William L. McCracken, for appellant.
    A verdict and judgment, whether of conviction or acquittal, under an indictment, is a final adjudication of the question at issue—the guilt or innocence of the defendant: Com. v. Rockafellow, 3 Pa. Superior Ct. 588; United States v. Gibert, 2 Sumner (U. S.), 19.
    A single criminal act cannot be split up into two or more distinct indictable offenses and be prosecuted as such: Drake v. State, 60 Alabama, 43; Simco v. State, 2 Criminal Law Magazine, 26; State v. McCormick, 8 Oregon, 236; Sadler’s Criminal Procedure, 336; Com. v. Lloyd, 141 Pa. 28; Com. v. Neeley, 2 Chester County Rep. 191; Fox v. State, 50 Arkansas, 528 (8 S. W. Repr. 836); State v. Cross, 101 N. C. 770 (7 S. E. Repr. 715); State v. Smith, 43 Vt. 324; Wemyss v. Hopkins, L. R. 10 Queen’s Bench, 378; Regina v. Bird, 5 Cox’s Criminal Cases, 20; State v. Cooper, 13 N. J. Law, 361; Regina v. Morris, 10 Cox’s Criminal Cases, 480; Com. v. Morgan, 9 Kulp, 573; Com. v. Cunningham, 13 Mass. 245; Cooper v. Com., 106 Ky. 909 (51 S. W. Repr. 789); Roberts v. State, 14 Georgia, 8; Holt v. State, 38 Ga. 187; Bell v. State, 103 Ga. 397 (30 S. E. Repr. 294).
    If the first indictment were such as the prisoner might have been convicted upon by proof of the facts contained in the second, indictment, an acquittal or conviction on the first indictment will be a bar to the second: Rex v. Vandercomb, 2 Leach, 708; Commonwealth v. Roby, 29 Mass. 496; Dinkey v. Com., 17 Pa. 126.
    A defendant tried and convicted or acquitted of murder cannot subsequently be indicted for assault with intent to kill, for the lesser crime is a constituent element of the greater. It is murder of the first degree, less the resulting death: Commonwealth v. Brosk, 8 Pa. Dist. Rep. 638; Com. v. Adams, 2 Pa. Superior Ct. 46.
    The writ of habeas corpus will not lie to discharge a prisoner who is in custody by virtue of a judgment, sentence, order or decree of a court of competent jurisdiction: Williamson v. Lewis, 39 Pa. 9; Commonwealth v. Jail Keeper, 26 Pa. 279; Dickinson v. Purvis, 8 Sergeant & Rawle, 71; Respublica v. Gaol Keeper, 2 Yeates, 349; In re Rolfs, 30 Kansas, 758; Sims’s Case, 61 Mass. 285; Ex parte Kearney, 20 U. S. 38; Ex parte Watkins, 28 U. S. 193.
    The only legitimate object of the writ of habeas corpus is to relieve from restraint and imprisonment: State v. Cheeseman, 5 N. J. L. 445; State v. Ward, 8 N. J. L. 120.

      James V. Murray, district attorney, for appellee.
    The following authorities are respectfully submitted as evidence of the law which should govern in the determination of the question involved in this case: Burns & Cary v. People, 1 Parker’s Criminal Rep. 182; Curtis v. State, 22 Texas App. 227 (3 S. W. Repr. 86); Regina v. Friel, 17 Cox’s Crim. Cases, 325; Com. v. Breyessee, 160 Pa. 451; Winn v. State, 82 Wis. 571 (52 N. W. Repr. 775).
    The court had jurisdiction of person of the defendant: Com. v. Ross, 28 Pa. C. C. Rep. 276; State v. Wilson, 38 Conn. 126; Ex parte Griffiths, 5 Barnewall & Alderson, 730; s. c., 7 E. C. L. 243; Re Wetton, 1 Crompton & Jervis, 459; Rigor v. State, 101 Maryland, 465.
    November 14, 1907:
   Opinion by

Mr. Justice Brown,

At the April sessions, 1906, of the court of quarter sessions of Jefferson county, Dominic Ramunno, the appellant, and Gemaro Mezzanotti were indicted for having committed an assault upon Julius Sleziwicz, with intent to kill him, and, having been convicted by a jury, were each sentenced, on April 23, 1906, to pay a fine of $100 and undergo an imprisonment in the penitentiary for a period of seven years. They were duly committed to the warden of that institution on April 26, 1906. On the day following, April 27, Sleziwicz died from the effect of their assault upon him, and subsequently an information was made against them, charging them with having murdered him. On a writ of habeas corpus, issued out of the court of common pleas of Jefferson county, at the instance of the district attorney, they were brought back to the county by the high sheriff, to whom the warden of the penitentiary had surrendered them in obedience to the writ directed to him; and, after the warrant in which they were charged with murder had been served upon them, they were committed to the county jail to await the action of the grand jury. On January 16, 1907, they were indicted for the murder of Sleziwicz, and subsequently tried together and convicted, Ramunno, of murder of the first degree, and Mezzanotti, of murder of the second degree. From the judgment of death pronounced upon the former we have this appeal.

Upon the arraignment of the prisoners, a motion was made to quash the indictment against them on the ground that the court had no jurisdiction to try them, as they had been brought within it without their consent and, therefore, illegally, at the instance of the district attorney by a writ of habeas corpus. This motion was overruled, and, having been directed to plead, they pleaded in bar of the indictment against them their conviction of the felonious assault upon Sleziwicz, averring that by such conviction they had been put in jeopardy and punished for their offense. To this plea the commonwealth demurred, and, the demurrer having been sustained, the trial proceeded on the general issue. In a motion in arrest of judgment and for a new trial, the exceptions taken to the court’s jurisdiction and the plea of former jeopardy were renewed.

In the court below, as we gather from the opinion overruling the motion in arrest of judgment and denying a new trial, counsel for the prisoners urged that the plea of autrefois convict was a bar to the indictment under the constitutional provision that “ Ho person shall, for the same offence, be twice put in jeopardy of life or limb.” On this appeal we are told that they were misunderstood by the trial judge, as the prisoners’ plea was not based upon the constitutional protection against a second jeopardy, but upon the common-law rule that no one shall be punished twice for the same offense, and upon section 30 of the Act of March 31, 1860, P. L. 427, which provides that, “ In any plea of autrefois acquit, or autrefois convict, it shall be sufficient for any defendant to state, that he has been lawfully convicted, or acquitted, as the case may be, of the offense charged in the indictment.” The constitutional provision against being placed in jeopardy twice for the same offense, found in the declaration of rights, is but a recognition of the humane rule of the common law, and a plea of former conviction is good under either. Section 30 of the act of 1860, merely provides for the simplification of the plea when made.

When the appellant and Mezzanotti were indicted and tried for assaulting Sleziwicz, he was still alive. Though they had intended to kill him, their murderous intention had not been effected, and it would not have been if he had survived the assault; but his assailants had committed a crime for which the law invoked punishment, and when it was inflicted the only crime for which they could then be punished was felonious assault. They had not then committed murder, for their victim had not died. The law could not then have said that he would die, and their trial for the offense then committed was not to be indefinitely postponed in view of a mere contingency that what they had done might be followed, as the direct and intentional result of their act, by the other and distinct crime of murder. When they were tried in 1906, they were tried for the only offense they had committed up to that time. When they were tried in 1907 for murder, it was for an offense of which they were guiltless in the preceding year. Murder is committed only when the victim of the assault dies. How, then, could the plea of autrefois convict have been successfully pleaded in bar of the indictment for murder, when no murder had been committed at the time of the former conviction ? Authorities not only uniform, but without number, sustain the view of the trial judge that the prisoners had never before been in jeopardy or punished for the crime of murder. It would be an affectation of research to attempt to cite them, all recognizing the rule as laid down in 4 Bl. Com. 336: The plea of former acquittal or former conviction must be upon a prosecution for the same identical act and crime. Courts in England and this country have without exception announced the principle that unless the first indictment was such as the prisoner might have been convicted upon by proof of the facts contained in the second indictment, an acquittal on the first can be no bar to the second. “ When the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first, the plea of autrefois acquit is generally good, but not otherwise:” Hilands v. Commonwealth, 114 Pa. 372. The evidence in support of the indictment for murder could not have secured a conviction of that crime on the first indictment, charging only assault upon a person then living. The innumerable authorities sustaining the court below are to be found in Stephen’s Crim. Law, 173; Wharton’s Crim. Pleading and Prac. (8th ed.), sec. 476; 1 Bishop’s Crim. Law, sec. 1059; 12 Cyc. of Law and Proc. 284; and 17 Am. and Eng. Ency. of Law, 600. In State v. Littlefield, 70 Me. 452, the plea made by this appellant was made by the defendant there, and it was said, “ At the time of the first prosecution and conviction the defendant had not committed the crime with which he is now charged. True, the force had been inflicted upon the body of Morton, but his death had not ensued. The force was acting to produce its effect, and the defendant was as much responsible for its natural and necessary result as if he had all the while been pressing it upon the body of his victim. When death was caused by that force a new and distinct crime was consummated by the defendant, of which he was not before guilty, arid for which he could not have been convicted at the time of the first prosecution. The offenses are not the same in fact, and therefore are not identical.” To have overruled the commonwealth’s demurrer to the prisoner’s plea of former jeopardy would have been error, to the wrong of the commonwealth.

On the prisoner’s other contention, not much ought to be said, for nothing can be said in support of it. At all times he was within the commonwealth. By its process he had been committed to one of its penal institutions for a violation of one of its laws. 11 not only did not object to his being brought into the jurisdiction of one of its courts to answer a more serious charge than the one upon which he had been committed, but asked, at the instance of a district attorney representing it in his district, that his body should be produced, to be subjected to punishment upon a charge which he was called to answer, different and distinct from that for which he had formerly been convicted. The warden of the penitentiary having him in custody made no question as to the commonwealth’s right to take him away; and, under the circumstances, when he reached the jurisdiction in which he was to be tried for the most serious offense known to the law, it was none of his concern how he got there. A prison is not a place of refuge for a criminal. It is for his punishment, to which he is involuntarily committed, and the same power that commits him can take him from it when in the interest of justice he should be transferred elsewhere to answer for his misdeeds.

The assignments of error are overruled. The judgment is affirmed and the record remitted for the purpose of execution.


text:
    Commonwealth v. Mezzanotti, Appellant.
    Argued Oct. 15, 1907.
    Appeal, No. 114, Oct. T., 1907, by defendant, from judgment of O. & T. Jefferson Co., Jan. T., 1907, No. 2, on verdict of guilty of murder of the second degree in case of Commonwealth v. Gemaro Mezzanotti.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    November 14, 1907:
   Opinion by

Mr. Justice Brown,

For the reasons appearing in the opinion herewith filed in Commonwealth v. Ramunno, ante, p. 204, this appeal is dismissed and the judgment below affirmed.


author: Mr. Justice Potter,

text:
    Sipe v. Pennsylvania Railroad Company, Appellant.

      Practice, C. P. — Writ—Statement of claim — Variance—Assumpsit— Trespass — Demurrer—Pleading.
    Where an action has been brought in assumpsit, but the statement of claim sounds in damages for trespass to property by the wrongful act of the defendant, the variance cannot be taken advantage of by demurrer; nor can there be oyer of the writ.

      Arbitration — Compulsory arbitration — Production of testimony — Appeals — Act of June 16, 1836, P. L. 715.
    There is no provision in the compulsory arbitration Act of June 16, 1836, P. L. 715, denying the right of appeal to a party who has failed to appear before the arbitrators; and it seems that such right has not been denied in any subsequent statute.

      Negligence — Waters—Injury to dam — Deposit of debris — Evidence— Burden of proof.

    In an action against a railroad company to recover damages for the alleged negligent deposit of debris in plaintiff’s dam, resulting from the construction of bridges in the stream above the dam, the burden of proof is upon the plaintiff to show what portion of the deposit was due to the construction of the bridges, and what portion was caused by floods, or sediment that naturally came down the stream, or was accumulated in the course of years from sources other than the acts of the defendant. In such a case it is reversible error for the court to fail to distinguish in its charge between the injury resulting from the wrongful acts of the defendant, and that which resulted from natural causes.
    Argued Oct. 15, 1907.
    Appeal, No. 91, Oct. T., 1907, by defendant, from judgment of C. P. Cambria Co., March T., 1903, No. 355, on verdict for plaintiff in case of D. A. Sipe v. Pennsylvania Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Assumpsit, with statement of claim sounding in damages for trespass to real estate.
    Before O’Connor, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Yerdict and judgment for plaintiff for $13,250. Defendant appealed.

      Errors assigned were (1) in overruling demurrer to the form of action and statement filed thereunder; (2) in refusing to strike off appeal, and (29, 31) refusal to affirm points quoted in the opinion of the Supreme Court.

      H. W. Storey, with him John W. Kephart, for appellant.
    It is impossible to recover in assumpsit where the damages are quare clausum fregit. A trespass can only be waived where the injury is to personal property: York Trust Co. v. Moul, 15 York Legal Rec. 137; Bethlehem Boro. v. Fire Ins. Co., 81 Pa. 445; Krause v. R. R. Co., 4 Pa. C. C. Rep. 60; Bacon v. Hoover, 17 York, 90 ; Reynolds v. Fenton, 2 Phila. 298; Todd v. Ins. Co., 9 Pa. Superior Ct. 381.
    One who declines to submit his cause is not entitled to an appeal: Hime v. Meadville, 33 Pa. C. C. Rep. 146.
    The court erred in the measure of damages: Horton v. Hall, 39 Legal Int. 62; Ehrgood v. Moscow Water Co., 4 Lack. L. News, 151; Elder v. Lykens Valley Coal Co., 157 Pa. 490.

      William Davis, with him Harvey Roland, for appellee.
    A summons may be issued in trespass, and a statement filed in assumpsit, and vice versa, and the variance is not a good' cause of demurrer or plea in abatement. Oyer of the writ is not demandable, and such objection cannot be considered. The defendant having been duly summoned, its concern is with the declaration or complaint, and not with the writ: Krause v. Penna. R. R. Co., 20 W. N. C. 111; Pentz v. Pentz, 6 Pa. Dist. Rep. 708; Grove v. Barclay, 106 Pa. 155.
    The jury was instructed to find the cost of removal, with loss of use up to suit, February 27, 1903, which latter was too favorable to defendant, or if they should find these two items to be more than depreciation or difference in value, then to find such difference, and this is, beyond doubt, the proper measure and the proper form in which to submit the same in such cases: Seely v. Alden, 61 Pa. 302; Stevenson v. Ebervale Coal Co., 201 Pa. 112; s. c., 203 Pa. 316; Hoffman v. Coal Co., 16 Pa. Superior Ct. 631.
    January 6, 1908:
   Opinion by

Mr. Justice Potter,

The plaintiff in this case is the owner of a gristmill located on the Little Conemaugh river, in the borough of Summerhill in Cambria county. The main line of the Pennsylvania Railroad crosses the river at two points above the mill. In 1901 the railroad company straightened its tracks in this vicinity, and erected two stone arched bridges over the river. The first bridge was about 6.00 feet from the mill, and was built upon the right of way acquired by the railroad company many years ago. The second bridge was more than 3,700 feet from the mill, and was not upon the original right of way. The reservoir created by the milldam was about 5,600 feet in its total length, and extended some 1,900 feet eastwardly and beyond the location of the upper bridge.

In plaintiff’s statement it is averred that “ during the construction of said railroad and the changing of the roadbed and the building of the bridges and other improvements, the said defendant company.have made cuts, fills, grades, and built wooden, iron and stone bridges and trestles in and upon the lands of the-plaintiff, and left deposits of earth, rock, stone, timber and other debris in and upon the said lands of the plaintiff ;• that sáid deposits of earth, rock, stone, timber and other debris were deposited in the plaintiff’s dam or reservoir, thereby reducing the size of the dam or reservoir, and reducing the quantity' of water power contained therein.”

This action was begun by summons in assumpsit, but in the original statement, and in an amended statement filed by the plaintiff, he claimed to recover damages for injury done to his property by the alleged wrongful acts of defendant. The defendant demurred, on the ground that the summons being in assumpsit, and the statement claiming damages in trespass, the cause of action had been changed, and the suit could not be maintained. The court below overruled the demurrer, and its action in so doing constitutes the subject-matter of the first assignment of error here.

Under the authority of our cases, a variance between the writ or declaration in this respect is not a good ground of demurrer; nor can there be, under our practice, oyer of the writ. In Dillman v. Schultz, 5 S. & R. 35, Justice Duncan said (p. 36): “ I do not know whether in any stage of an action, advantage could be taken of a variance between the writ and declaration, where the cause of action appeared to be the same. The cases are collected by Sorgt. Williams, in his edition of Saunders in the note to Redman v. Edolph, 1 Saund. 318a, who says, it seems to follow from all the decisions, that no advantage can be taken of a defective original, or of a variance between the writ and the declaration. However this may be, it cannot be taken advantage of where the defendant pleads in bar to the declaration.”

In Overseers of Roxborough v. Bunn, 12 S. & R. 291, this court, speaking again by Justice Duncan, said (p. 295): “In England, a judgment is never reversed in any court of record, for any variance in any writ, original or judicial, from the declaration or other proceedings: Helliot v. Selby, 2 Salk. 701. There the court held, that a defendant cannot take advantage of a variance between a writ and count, without craving oyer of the writ. In Ford v. Burnham, Barnes, 340, the court, as praying oyer of the original, had been much used to delay, came to a resolution not to grant oyer of the original in future; and, so far have the courts discouraged this dilatory course, that with respect to a writ of error for a defective original, as it would be a hard case to set aside a judgment for a mere slip, the master of the rolls would defeat the writ of error by ordering the original to be amended, or, if necessary, granting a new one: Hole v. Finch, 2 Wils. 393; Redman v. Edolph, 1 Saund. 318a, note. This, however, is not the rule where the variance is in the nature of the action.”

In 1 Chitty’s Pleading, 9th Am. ed., sec. 244, it is stated that: “ Regularly the declaration should correspond with the process, but as according to the present practice of the courts, oyer of the writ cannot be craved, a variance between the writ and the declaration cannot in any case be pleaded in abatement or otherwise.”

And again, the same author, in the 16th Am. ed., sec. 269, states that: “ It is an indispensable requisite of every declaration that it substantially adhere to the form of action stated in the process, and if it deviate, the defendant may apply to the court or a judge to set aside the declaration for irregularity ; so that the plaintiff must abandon his first process and issue a fresh writ stating a form of action adapted to that in his declaration. But the objection is not a ground of demurrer to the declaration, but merely of a summary application to set aside the declaration for irregularity. ... If the body of the declaration state a' cause of action that is not, nor could be, properly declared for in the form of action stated in the writ, then the deviation would constitute an irregularity and ground for setting aside the declaration, but not a ground of demurrer.”

The first assignment of error is therefore dismissed.

It appears that the defendant in this case entered a rule of reference under the compulsory arbitration act, and the cause was referred to arbitrators, who found in favor of the plaintiff in the sum of $4,000. From this award plaintiff appealed. Defendant moved to strike off the appeal, on the ground that the plaintiff had not appeared either in person or by counsel, and had offered no testimony before the arbitrators, and was therefore not entitled to appeal. This motion was overruled by the trial court, and its action in so doing is assigned as error. Counsel for appellant does not cite any authority for his contention in this respect. The compulsory arbitration Act of June 16, 1836, P. L. 715, under which the reference in this case was made, provides expressly in section 17 for the method of proceeding before the arbitrators where only one party attends. By section 27 it is provided that: “ Either party may appeal from an award of arbitrators to the court in which such cause was pending at the time the rule of reference was entered.” There is no provision in the act, or, so far as we know, in any subsequent statute, denying the right of appeal to a party who has failed to appear before the arbitrators.

¥e see no merit in the remaining assignments of error, except in so far as they question the proper application of the measure of damages to the circumstances of this case. The thirty-first assignment of error is based upon the refusal of the trial judge to affirm the defendant’s fourteenth point for charge, which was as follows : “ There being no evidence of a separation of items of damages, which exclude those coming from the defendant’s property and the release of damages affecting the plaintiff’s property, and any other claim for damages, the jury is not permitted to guess at such separation, and the verdict must be for the defendant.” The point is not well drawn, and its meaning is by no means clear. But if we apprehend aright the meaning which the point was intended to convey, it does raise a distinction between the damage arising from the acts of the defendant and that arising from other causes, which is well taken, and the ignoring of which may well have resulted in great injustice to the defendant.

The twenty-ninth assignment of error raises the same distinction, in complaining of the refusal of the trial judge to affirm the defendant’s eighth point for charge, which was “ that it is not shown that the defendant is responsible for the sand bar below Laurel Run, which has been accumulating since 1852.” If the filling up of the river bed above the breast of the dam was caused in part by debris carried down by flood water from Laurel Run, or by sediment that naturally came down the stream, or was accumulated in the course of years from sources other than the acts of the defendant, then for damages arising from such other causes, if any, the defendant could not be held liable. It was incumbent upon the plaintiff to furnish evidence from which the jury might conclude with some degree of certainty that the deposit of sediment and the filling up of the river bed to the extent testified by witnesses for the plaintiff, was the result solely of the action of the defendant company. And in this particular there seems to have been a failure of proof. To show merely the fact that there was sediment in the river bed, after the date when defendant company built its bridges at points considerably distant from the dam up the stream, was not sufficient. The question was, did the defendant deposit the debris in the stream to the extent claimed ? Plaintiff was bound to show a reasonable connection between the work of the defendant company and the filling of the dam to the injury of the plaintiff. Por whatever earth, sand and debris the defendant cast into the river, which was carried down and lodged against the breast of the dam, or otherwise obstructed the plaintiff in drawing water into his mill race, the defendant was, of course, responsible. But the plaintiff seems to have been allowed to submit to the jury the broad claim that the construction of the piers and abutments of the bridges, situated hundreds of feet above the mill and the breast of the dam, constituted an interference with his water power. This was a mistake. That construction, if properly made, was carried out under the right of eminent domain, after due compensation paid, or secured to be paid, for the property taken. It was only the loose material and debris improperly deposited in the river, or negligently allowed to wash down the stream, and which tended to fill up the river bed to the injury of the water, power, which gave rise to the right of action in this case. Plaintiff was entitled to the natural flow of water in the river, and to its storage above his dam breast, at the height for which his construction had provided ; and in so far as the defendant interfered with his rights in this respect, it was liable for damages. But of the immense amount of sediment and deposits found by plaintiff’s engineer in the river bed, extending from the breast of the dam, more than a mile up the river, and for a distance of nearly 2,000 feet above the second bridge, we can find nothing in the evidence to show how much of it was in the river bed prior to the construction of the bridges by the defendant company, or how much of it was due to its acts. The burden of proving this essential fact was upon the plaintiff. Instead of meeting this burden plaintiff apparently proceeded upon the theory that all the deposits in the river resulted from the work of the defendant company in building its bridges. This was merely an assumption, not supported by evidence as to how much loose material the defendant put into the river, which could by any reasonable possibility have been washed down the stream or have filled up the bed. The defendant admits that it is responsible for some part of the sediment and loose material which was deposited above the breast of the dam, and near the mouth of the race, and for the damage caused by that amount of the deposit it is willing to pay. It was for the plaintiff to produce evidence showing what the proportionate amount of damage caused by the acts of the defendant company was. Having faffed in this respect, the judgment is reversed and a venire facias de novo is awarded.


text:
    Byrne v. The Cambria & Clearfield Railway Company and The Pennsylvania Railroad Company, Appellant.

      N egligence — W aters — Dam—Damages—Evidence.
    In an action against a railroad company to recover damages for injuries to a milldam alleged to have been caused by the construction of the railroad, a judgment for the plaintiff will be reversed where it appears that at the trial the only evidence of damages was that of two witnesses who were permitted to testify as to a lump sum for the amount of the damages, without giving any facts or items upon which their estimate was formed.
    The opinion of witnesses as to damages must not be speculative or conjectural, but must be based upon facts and conditions existing and proved. .
    Argued Oct. 15, 1907.
    Appeals, Nos. 3 and 4, Oct. T., 1907, by defendants, from judgment of C. P. Cambria Co., Dec. T., 1905, No. 199, on verdict for plaintiff in case of Luke A. Byrne v. The Cambria & Clearfield Railway Company and The Pennsylvania Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for injuries to a milldam.
    Before O’Connor, P. J.
    The facts are stated in the opinion of the Supreme Court.
    At the trial when the plaintiff was on the stand he was asked this question : “ Qi About what amount of damage has been done to your mill property by reason of this filling up of the dam and the necessity for the cleaning of the race and injury to your mill ? ”
    Mr. Storey : Defendants’ counsel objects to the question for the reason that it is asking a question in bulk, without giving a single item of cost or damage for anything that he has heretofore stated, and the question in its present form is improper and objectionable.
    The Court: We cannot say that it is inadmissible because he has failed to state the items so far. We overrule the objection and admit the testimony; the question of the sufficiency is a question which we will not pass upon at this time. We note an exception and seal a bill for the defendants.

      “ A. Four thousand dollars, I claim.” [1]
    James Lantzy was asked this question: “ Q. What do you say that the damage has been that has been caused by the deposit of the mud that has gone into the dam and race since the opening of this original channel to that mill property, calculating the removal and the consequence that followed from that obstruction ? ”
    Objected to for the reason that it is improper, calculating consequential damages, and that the witness has not shown that he has sufficient information to give an estimate on that subject.
    The Court: We believe the witness can take into account any damage heretofore caused and any damages which will reasonably and directly follow from the action of the defendants in this case so long as it is likely to continue. We overrule the objection, note an exception, and seal a bill for the defendant companies.
    “ Q. What do you say the damage has been that has been caused by the deposit of the mud that has gone into the dam and race since the opening of this original channel to the mill property, calculating the removal and the consequences that followed from that obstruction? A. Four thousand dollars for the damage that has been and what will accrue, to the best of my knowledge.”
    Mr. Storey: We ask the court to strike out the last answer for the reason that future damages are not to be considered in this action; that the witness included in his answer future damages.
    The Court: We refuse that request and note an exception and seal a bill for the defendants. [6]
    Yerdict and judgment for plaintiff for $3,365.83. Defendant appealed.

      Errors assigned, among others, were (1, 6) rulings on evidence, quoting the bill of exceptions.

      H. W. Storey, for appellant.
    Plaintiff should not testify what his damages were in a lump sum without specifying the items: Hoenninger v. School District (No. 2), 23 Lancaster Law Rev. 201.

      J. F. McKenrick, for appellee.
    January 6, 1908:
   Opinion by

Mr. Justice Potter,

The defendant company had occasion to construct a new line of railroad in Cambria county, on the west branch of the Susquehanna river. In building this road a bend in the river was cut off, and a new channel was formed some 800 feet in length. An embankment extending along the river was constructed, partly with the earth excavated from the new channel and partly with earth obtained elsewhere. Plaintiff is the owner of a water power gristmill, situated on the Susquehanna river, a short distance below the location of the new channel and the embankment. Plaintiff claims that by reason of the work done by the railroad company large amounts of mud, sand, sediment and alluvial deposits were negligently permitted by the defendant to work down into his dam and millraee, thereby seriously impairing his water power, and interfering with the operation of his mill. In his statement he claimed damages amounting to $2,000 for the expense of cleaning the dam and race from time to time, and for the loss resulting from his inability to run the mill on full time. He further claimed damages in the same sum for permanent depreciation in the value of his mill property. The jury found a verdict for the plaintiff for $3,365.83, upon which judgment was entered. In the first and sixth specifications of error the appellant complains that against his objection witnesses were permitted to testify to the amount of the damages in a lump sum, without specifying the items of damage. The plaintiff, when asked what amount of damage had been done to the mill property by reason of the filling of the dam, answered, “ Four thousand dollars, I claim.” And the witness, James Lantzy, in response to a similar question, made a similar answer, giving as his estimate in a lump sum, Four thousand dollars for the damage that has been, and what will accrue.”

Under the authorities the objection of the defendant to this testimony should have been sustained. Robb v. Carnegie, 145 Pa. 324, was an action to recover damages for injuries to plaintiff’s land alleged to h.ave been caused by the operation of coke ovens maintained by defendants on adjoining premises. A witness having been asked to state the amount of damages done to the property by reason of the smoke from the ovens, objection was made on the ground that the question would elicit from the witness the injury done to the property without distinguishing or specifying how or to what part of the property, etc. The objection was overruled and the witness answered, “ I Avould place it at $10,000.” On appeal, the assignment of error complaining of the allowance of this question was sustained, this court saying (p. 343): “ The question objected to should have been excluded because it called for no fact but for a lumping estimate, which opened the way for the witness to introduce considerations that we have seen had no place in the adjustment of the damages.”

The general rule is thus stated in 12 Am. & Eng. Ency. of Law (2d ed.), 460, 461: “ On damages, as on other subjects of expert opinion evidence, the opinion of witnesses must not be speculative or conjectural, but must be based upon facts and conditions existing and proved. Thus in an action of tort the plaintiff cannot answer naked questions as to the amount of damages sustained by him.” And in 3 Elliott on Evidence, sec. 2006, we find the statement that: “ The authorities with few exceptions are agreed upon the proposition that witnesses cannot give their opinion as to the quantum of damages in any given case. . . . The general rule is that witnesses must state facts, and are not permitted to give their opinions founded on such facts, nor can they give inferences or deductions drawn from them. These rules apply almost without exception as to the quantum of damages resulting from any act. So the rule is that a 'witness cannot be examined in such a manner that his answers will relieve the jury from considering and determining the facts submitted.”

In the present case we do not find any evidence fixing the amount of the damages except that of the two witnesses referred to, who gave it as the lump sum of $4,000. Neither witness gave the basis or the items upon which his estimate was formed, and the sum named is the same as that set forth in the statement of claim.

The first and sixth assignments of error are sustained, and the judgment is reversed, with a venire facias de novo.


author: Mr. Justice Stewart,

text:
    Commonwealth ex rel. v. Topper, Appellant.

      Public officers — Tax collector — Division of township — Residence— Vacancy in office — -Acts of April 11, 1862, P. L. 471, June 25, 1885, P. L. 187, and July 2, 1895, P. L. 434.
    Where a borough is created out of territory embraced within the limits of a township, the office of tax collector of the township becomes vacant under the terms of the act of July 2, 1895, if the incumbent of the office is at the time of the division of the township resident in the portion of the township which becomes the borough. In such a case the court of quarter sessions under the provisions of the act of July 2, 1895, may appoint a successor to the office of tax collector of the township.
    The Act of June 25, 1885, P. L. 187, providing for an elective office, the incumbent of which is styled collector of taxes, superseded the office of collector of school ta.x under the former system, and the now officer, entirely independent of the board of school directors, became the only person authorized to collect taxes of every description. The Act of April 11, 1862, P. L. 471, providing for the continuance of school directors’ powers over a detached portion of a divided school district, has no application to the continuance in office of a tax collector elected under the Act of June 25, 1885, P. L. 187.
    Submitted Oct. 15, 1907.
    Appeal, No. 77, Oct. T., 1907, by defendant, from judgment of C. P. Cambria Co., Dec. T., 1906, No. 419, for plaintiff on quo warranto in case of Commonwealth ex rel. Joseph Boland v. William Topper.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Quo warranto to determine title to office of tax collector of Cresson township.
    Before O’Connor, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was in entering judgment for plaintiff.

      Thomas J. Itell and R. E. Cresswell, for appellant.
    When a borough is incorporated out of a portion of a township a new school district is thereby formed, by operation of law: In re Abington School District, 84 Pa. 179; Hunlock v. Jones, 9 Kulp, 278.
    The school district of Cresson township as it existed on the first Monday of June, 1906, and prior thereto, continued to exist until the first Monday of June, 1907, comprising all the territory of the original township of Cresson and consequently including the territory of the two boroughs of Cresson and Sankertown; and that so far as school matters were concerned there was but one school district in that entire territory until after the first Monday of June, 1907.
    A public office, such as collector of taxes, is a right or privilege to which the incumbent is entitled by virtue of his election: Com. v. Gamble, 62 Pa. 343; Worthy v. Barrett, 63 N. C. 199.
    The Act of July 2, 1895, P. L. 434, states that “ if a vacancy shall take place ” in the office of tax collector, etc., the court shall appoint a suitable person to fill the vacancy. It does not say that a vacancy necessarily takes place, in any of the instances cited, and in no act of assembly relative to the office of collector of taxes is a residence qualification prescribed for the person to be elected.

      J. W. Leech and Harvey Roland, for appellee.
    appellee. — When a vacancy in the office of township tax collector occurs by the formation of a new borough, the quarter sessions fills the vacancy by appointment: Bitting v. Com., 20 W. H. 0.178.

      The tax collector of the township collects the taxes for the school district thereof; one not a collector of the township collects none of the taxes therein ; a collector who has lost his residence has certainly lost his office; and one who has lost his office must have lost its functions and franchises: Com. v. Lally, 10 Phila. 507; Com. v. Strattan et al., 11 Pa. Dist. Rep. 578.
    January 6, 1908:
   Opinion by

Mr. Justice Stewart,

The question here presented concerns the right of the appellant as collector of taxes for the township of Cresson in Cambria county, to collect the school taxes of the township. The ground on which this right is challenged will appear from a brief statement of the facts. The respondent below, here the appellant, William Topper, was duly elected collector of taxes of the township at the February election in 1906. In June following, Sankertown borough was created out of territory which at the time of the election was embraced within the limits of the township. Respondent resided in that part of the township which afterwards became the borough of Sankertown. Because of his nonresidence within the township, as a result of the separation of the new borough, the court of quarter sessions of the county on June 26 declared the office of tax collector for the township vacant, and appointed Joseph Boland, here the appellee, to fill the vacancy for the unexpired term. It does not appear that any exception was taken to this action of the court, but on September 22 following, Topper, while continuing to reside without the liin its of the township, filed his oath and bond and thus sought to qualify. The township school board delivered to him for collection the duplicate of taxes for the township school district. Thereupon Boland, the court’s appointee, began this proceeding to test Topper’s right to exercise the office he claimed. In the answer filed to the suggestion, and in the argument here, the respondent rests his right to collect the school duplicate of taxes on the Act of April 11, 1862, P. L. 471, which provides that where a portion of a common school district is detached, the alteration shall not take effect for school purposes until the commencement of the school year next after the end of that in which it shall have been decreed and confirmed, and that the directors in the detached portion shall continue to exercise their office until the end of the year in which the alteration occurred.

It is not unreasonable to allow that the provision here made for carrying over the existing order of things until the end of the current school year, included as well the collector of taxes who was not specifically mentioned, as the school directors who ' were, inasmuch as the collector, at the time of the passage of the act, was the appointee of the school directors, who determined the amount of his bond and passed upon the sufficiency of his sureties. The appointment was for no fixed term. All this was changed, however, by the Act of June 25, 1885, P. L. 187. By this latter act a new elective office was created, styled collector of taxes. It provides for the election annually (triennially now since the amendment of June 6, 1893), of a tax collector by the electors of each borough and township; and by the fourth section of the act all authorities empowered to levy taxes, are required to issue their respective duplicates to the duly qualified tax collector of the district. With the passage of this act the office of collector of school tax under the former system ceased to exist, and the collector of taxes, an officer entirely independent of the board of school directors, became the only person authorized to collect taxes of any description. None of the considerations, therefore, supporting the view that the collector of school taxes under the former system was included in the provision for continuance in office after the change in the district can operate now. The Act of June 25, 1885, P. L. 187, was a virtual repeal of the Act of May 8, 1854, P. L. 617, to the extent indicated. This, however, is not wholly decisive of the question, since the respondent claims the right to collect the school duplicate by virtue of his election as collector of taxes for the township. The court below adjudged the office of collector vacant, notwithstanding the respondent had been duly elected thereto, on the ground that by the change in the lines of the district he had ceased to be a resident and qualified elector therein. The Act of July 2, 1895, P. L. 434, was relied upon as supporting this adjudication. It reads as follows : “ That if any vacancy shall take place in the office of tax collector after any ward, district, borough or township election, by reason of the erection of any new ward, district, township or borough, or from the neglect or refusal of any person elected to perform the duties of the office, or by death, resignation or otherwise, the court of quarter sessions of the proper county upon petition of the town council or any citizen who is a resident of said borough, township or ward, setting forth the fact that a vacancy does exist, shall appoint a suitable person to fill said vacancy for the full or unexpired term.”

Our attention has not been directed to any statute which in express terms makes residence within the township a qualification for holding office therein, and our own somewhat partial examination has discovered none, yet we are of opinion that, at least with respect to the office of tax collector, residence is an essential qualification, made so by the act above quoted by necessary implication. It is quite impossible to conceive of a change in the lines of the township creating a vacancy in such office, except as the change places the residence of the incumbent in a different municipal division from that in which he was elected. When residence in the district is lost, by operation of law, the tenure of office fails and the office becomes vacant. It is impossible to give any other meaning to the act. In just such contingency as this the act provides for the appointment of a successor to fill the unexpired term.

On both propositions the appellant fails in his contention. The case was properly decided in the court below, and the judgment is affirmed.


author: Mr. Justice Mestrezat,

text:
    Burns v. Pennsylvania Railroad Company, Appellant.

      Negligence — Death—Damages—Measure of damages — Widow.
    In determining the damages which a widow is entitled to recover for the death of her husband, the loss is to be ascertained by taking into consideration what the deceased would have probably earned by his intellectual or bodily labor in his business or profession during the residue of his lifetime, and would have gone for the benefit of his widow, taking into consideration his age, ability and disposition to labor, and his habits of living and expenditure. Under this rule it is the duty of the jury to ascertain the earning power of the deceased at the time of his death, not what he earned in any one year that the- jury may select, and make that the basis of his earning capacity during the period of his expectancy. In estimating the total damages the jury must consider the time the deceased is expected to live and also the fact that during that time his earning capacity will diminish as the years go on. Having thus ascertained the total sum, its payment must be anticipated and capitalized and the present worth obtained.
    In such a case a charge is erroneous which fails in these particulars: (1) in permitting the jury to select the amount earned by the deceased in any one year as the basis of ascertaining the amount of the verdict; (2) in permitting the jury to ascertain the amount of the damages by multiplying the amount earned by the deceased in any one year by the number of years of his life expectancy; and (3) in failing to tell the jury that the sum ascertained by considering the earning power of the deceased at the.time of his death,and the number of years of his life expectancy should be anticipated and capitalized so as to ascertain its value at the date of the rendition of the verdict.
    Argued Oct. 16, 1907.
    Appeal, No. 94, Oct. T., 1907, by defendant, from judgment of C. P. Cambria Co., June T., 1903, No. 248, on verdict for plaintiff in case of Catherine Burns v. Pennsylvania Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for death of plaintiff’s husband.
    Before O’Connor, P. J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for plaintiff for $14,480. Defendant appealed.

      Error assigned among others was (2) portion of opinion quoted in the opinion of the Supreme Court.

      H. W. Storey, for appellant.
    Instructions as to damages were erroneous: Wilkinson v. North East Borough, 215 Pa. 486; R. R. Co. v. Loeffler, 51 S. W. Repr. 536; Lodge v. R. R. Co., 10 Phila. 153.

      E. T. McNeelis, for appellee.
    The learned trial judge did not commit reversible error in instructing the jury as to the proper measure of damages: Goodhart v. Penna. R. R. Co., 177 Pa. 1; Wilkinson v. North East Borough, 215 Pa. 486; Fitzpatrick v. Traction Co., 206 Pa. 335; Kyle v. Southern Electric Light, etc., Co., 174 Pa. 570; McCloskey v. Bells Gap R. R. Co., 156 Pa. 254.
    January 6, 1908:
   Opinion by

Mr. Justice Mestrezat,

This is an action brought by a widow to recover damages for the death of her husband which she alleges was caused by the defendant’s negligence.

The case was here on two former occasions, 210 Pa. 90, and 213 Pa. 280, and it is with much regret that we are compelled to remand it to the court below again for another trial. We think the instructions of the trial court on the measure of damages are clearly erroneous, and for that reason the judgment must be reversed. As the case goes back for a retrial, the questions raised by the other assignments of error become immaterial and need not be considered.

In his charge to the jury on the measure of damages the learned judge said : “ In order to arrive at what he would be worth to her during the remainder of his natural life, you would consider his age and earning power with a view of determining how long he would be useful to his family as a breadwinner, and you would make your calculation, after having ascertained the probable number of years he would have been so useful to his family, had he lived, in multiplying the number of such years by the amount you would find he would earn in any one year, then deducting from that amount whatever you believed would be a reasonable amount, under the testimony in the case, for his expenditures.” There is nothing in any other part of the charge which changes or modifies the rule thus laid down as the measure of damages. The jury, therefore, under these instructions, were at liberty to ascertain what the deceased earned in any one year and multiply that sum by the number of years he was expected to live and return the amount thus ascertained as their verdict. Such instructions were erroneous in at least two particulars: (a) in permitting the jury to select the amount earned by the deceased in any one year as the basis of ascertaining the amount of the verdict; and (b) in permitting the jury to ascertain the amount of the damages by multiplying the amount earned by the deceased in any one year by the number of years of his life expectancy.

The plaintiff was entitled to recover the pecuniary loss which she suffered by the death of her’husband, and, as this court has determined time and again, the loss in such case is what the deceased would have probably earned by his intellectual or bodily labor in his business or profession during the residue of his lifetime, and what would have gone for the benefit of his widow, taking into consideration his age, ability and disposition to labor, and his habits of living and expenditure. Under this rule it is the duty of the jury to ascertain the earning power of the deceased at the time of his death, not what he earned in any one year that the jury may select, and make that the basis of his earning capacity during the period of his expectancy. In estimating the total damages the jury must consider the time the deceased is expected to live, and also the fact that during that time his earning capacity will diminish as the years go on. Having thus ascertained the total sum, its payment must be anticipated and capitalized and the present worth obtained. This is the proper method in' ascertaining what is presently due and payable to the widow in this case, and is the rule which is recognized in all our cases. It ascertains, as accurately as can be, the pecuniary loss which she sustains by the death of her husband. '

It will be observed that the measure of damages announced by the learned judge in his charge gave the jury too much latitude in determining the amount due the plaintiff. Under this charge the jury was at liberty to select as the basis of computation any year, the highest or the lowest, of the earnings of the deceased. They were also instructed to multiply that sum by the number of years he was expected to live, disregarding the important fact that his earning powers were necessarily diminished as he advanced in years. A further and material error was committed, as appears from what is said above, in not telling the jury that the sum ascertained by considering his earning power at the time of his death and the number of years of his life expectancy should be anticipated and capitalized so as to ascertain its value at the date of the rendition of the verdict. These were serious errors which would manifestly produce a wrong verdict and judgment.

The questions raised by the other assignments of error will disappear on another trial, and, therefore, need not be considered or determined now. The second assignment of error is sustained, the judgment is reversed, and a new venire is awarded.


author: Mr. Justice Elkin,

text:
    Mahan v. Clark, Appellant.

      Contract — Sale of timber — Expiration of time limit — Title to timber cut down.

    Where an owner of land sells all the timber thereon, and grants to the vendee the right to cut and remove the timber with the “privilege of five years ” for the completion of the operation, and the vendee cuts down all the timber, and manufactures it into saw logs, telephone poles and railroad ties prior to the expiration of the five years, but does not remove the manufactured product from the land before that date, although he has paid for it in full, the title to the timber thus cut and manufactured is in the vendee as personal property, and the vendor has no interest in it whatever.
    Argued Oct. 16, 1907.
    Appeal, No. 93, Oct. T., 1907, by defendants, from judgment of C. P. Cambria Co., June T., 1905, No. 275, on verdict for plaintiff in case of Isaac Mahan v. H. E. Clark and S. T. Schrack.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Replevin to determine ownership of logs and manufactured lumber.
    Before O’Connor, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Yerdict and judgment for plaintiff. Defendant appealed.

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

      M. D. Kittell and John E. Evans, with them Charles S. Evans, for appellants.
    In a contract for the sale of timber to be out and removed within a specified time, trees severed from the soil and manufactured into logs, etc., are removed, within the meaning of the contract, and are and remain the property of the vendee, even though not actually removed from the premises within the time specified: Erskine v. Savage, 96 Me. 57; Hoit v. Stratton Mills, 54 N. H. 109; Plumer v. Prescott, 43 N. H. 277; Irons v. Webb, 41 N. J. Law, 203; Hicks v. Smith et al., 77 Wis. 146 (46 N. W. Repr. 133); Golden v. Glock, 57 Wis. 118 (15 N. W. Repr. 12); Owens v. Lewis, 46 Ind. 488; Alexander v. Bauer, 94 Minn. 174 (102 N. W. Repr. 387); Macomber v. Detroit, etc., R. R. Co., 108 Mich. 491 (66 N. W. Repr. 376); Hubbard v. Barton, 75 Mo. 65; Johnson v. Truit, 122 Ga. 327 (50 S. E. Repr. 135).
    S. L. Reed, with him P. J. Little, for appellee.
    In Pennsylvania, the law is that the limitation placed upon the right of entry to cut and remove timber is, a limitation upon the grant itself: Saltonstall v. Little, 90 Pa. 422; Jackson v. Hardin, 87 S. W. Repr. 1119.
    It seems to us that nothing can be clearer than that Mahan sold, and Kramer bought with the distinct understanding that title passed only to such timber as was removed from the land during the time fixed for the completion of the operation, and it is also equally clear that the extension was granted on the same terms: Boults v. Mitchell, 15 Pa. 371; Saltonstall v. Little, 90 Pa. 422; Bennett v. Vinton Lumber Co., 28 Pa. Superior Ct. 495.
    The rule is, that a sale of timber on a certain tract of land to be removed in a given length of time is only a sale of so much timber as is removed within the time: Bell County Land & Coal Co. v. Moss, 97 S. W. Repr. 354; Irons v. Webb, 41 N. J. L. 203; Bolsaubin v. Reed, 2 Keyes, 323; Strong v. Eddy, 40 Vt. 547; Inderlied v. Whaley, 65 Hun, 407; Gamble v. Gates, 52 N. W. Repr. 941; Ivory v. Burns, 56 Pa. 300.
    January 6, 1908:
   Opinion by

Mr. Justice Elkin,

Mahan, the owner of the soil, by a contract in writing sold and conveyed to Kramer “ all the timber lying and standing down to eight inches across the stump two feet from the ground ” on two certain tracts of land therein described. The agreement was entered into November 16, 1899. Kramer was given the right of egress and regress over the land for the purpose of cutting, manufacturing and removing the timber and lumber. He was also given the right to locate and operate at a suitable place on the tracts of land a sawmill for the purpose of manufacturing the timber into lumber, together with a sufficient amount of ground on which to locate a log and lumber yard. The contract further provided that the “ privilege of live years’ time is hereby granted for the completion of said operation.” On November 21, 1903, Kramer assigned his right, title, interest and claim to the timber sold and conveyed under the terms of said agreement, to Clark, one of the appellants in this case. On July 22, 1904, Mahan agreed to extend the time for removing the timber until April 1, 1905, and for the removal of the lumber to January 1, 1906. The consideration for the timber agreed upon by the parties has been paid in full and there is no delinquency in this respect. All of the timber was severed from the soil prior to April 1, 1905, The trees were not only severed from the land, but the defendants had caused the timber to be cut, prepared or manufactured into saw logs, telephone poles and railroad ties prior to that date. The plaintiff now claims title to the .same on the ground that defendants having failed to remove the timber from the land before the expiration of the period in which to remove, the title thereto reverted to him, the original vendor in the article of agreement.

In support of this position three Pennsylvania cases and two or three from other jurisdictions are relied on. It is true that in Boults v. .Mitchell, 15 Pa. 371, it was held that where a right of entry on land for the cutting and removing of timber has terminated, trespass quare clausum fregit may be maintained by the owner of the land against the person who had such prior right of entry, for cutting trees thereon, and the value of the trees cut and removed may be recovered ; and even when no time was limited in the grant, the law would imply a duty on the part of the grantee to remove within a reasonable time, certainly a reasonable time after notice to remove had been given, and a failure to remove would work a forfeiture of his rights.

Saltonstall v. Little, 90 Pa. 422, and Bennett v. Vinton Lumber Company, 28 Pa. Superior Ct. 495, following the rule of that case, have announced the principle that the purchaser of timber on a tract of land under a conveyance which specifies a particular time for the removal thereof, forfeits all rights in the timber not cut and removed within the time specified.

It will be observed, however, that in all of these cases the timber had not been cut within the time specified. It remained standing in its original state and was part of the soil. It has been uniformly held in this state that standing timber is real estate and that a conveyance, thereof which does not contemplate an immediate severance is within the statute of frauds: Yeakle v. Jacob, 33 Pa. 376; Neumoyer v. Andreas, 57 Pa. 446; Pattison’s Appeal, 61 Pa. 294; Bowers v. Bowers, 95 Pa. 477; Miller v. Zufall, 113 Pa. 317. This may be, and perhaps is, the foundation of the rule. It would seem as though the original grant, being a sale of real estate, subject to a limitation of time in which to remove, failure to remove within the time should work a forfeiture, or reversion, of the same character of estate as that granted. Our cases hare gone no further. In no case has it been held in this state that where the timber had been cut and manufactured or prepared into lumber or other products and thus converted into personal property, the rule applies. Under these circumstances it will be helpful to review the decisions of other states in order to reach a proper. conclusion in the case at bar. It must be conceded that the courts of other jurisdictions have reached different conclusions in the determination of this question. In Maine the rule is that where a grantor in a deed reserved all timber, with the right to enter upon the premises at any time within five years for the purpose of cutting and removing the same, the trees remained a part of the real estate until severed from the soil, but if severed within the period limited they became personal property, the title to which vested in the vendee who did not forfeit the same by failure to remove within the five year period: Erskine v. Savage, 96 Me. 57. In Wisconsin it was decided that in a conveyance of standing timber with the right to remove within two years, trees cut and manufactured into stave bolts within that period became personal property and were thereby removed from the premises within the meaning of the deed, and the grantee had the privilege, after the expiration of the period of limitation, of going upon the premises and removing the stave bolts: Golden v. Glock, 57 Wis. 118; Hicks v. Smith, 77 Wis. 146. In Minnesota it was held that where under the terms of a contract the grantee was given the privilege to cut and remove trees from certain land and a portion of the trees having been cut before the expiration of the limited period, failure to remove the logs until six months thereafter did not work a forfeiture of the title so that it became vested in the owner of the land, but that the vendee had a right to remove the same after the time limit had expired: Alexander v. Bauer, 94 Minn. 174. In Michigan the same rule has been adopted. It was there held that a severance of the timber from the soil and the cutting of the same into saw logs is a removal of the timber within the terms of the contract, though the logs be not removed from the premises within the time specified: Macomber v. Railroad Company, 108 Mich. 491. In Georgia the courts have said that the word timber ” does not include cross-ties which were cut prior to the expiration of the time, and that the purchaser had a right to go upon the land after the expiration of the time for the purpose of removing the ties: Johnson v. Truitt, 122 Ga. 327. In Indiana it was held that where a vendee by parol had purchased growing trees on the land of the vendor with the privilege of cutting and removing the same, he had a license to enter upon the land for the purpose of making the severance, and if the license be not revoked before the trees are severed, the title to the trees will vest in the vendee, and the license after such severance will become coupled with an interest irrevocable and the vendee will have a right to enter and remove the trees thus severed: Owens v. Lewis, 46 Ind. 488. To the same general effect are Hubbard v. Burton, 75 Mo. 65; Irons v. Webb, 41 N. J. Law, 203; Hoit v. The Stratton Mills, 54 N. H. 109; Plumer v. Prescott, 43 N. H. 277.

Boisaubin v. Reed, 2 Keyes (N. Y.), 323; Strong v. Eddy, 40 Vt. 547, and perhaps a very few other cases, are authority for the contrary rule. After a careful review of all these cases we are convinced that the great weight of authority, as well as the reason of the rule, supports the contention of the learned counsel for the appellants in this case. It cannot be seriously controverted that the ties, telephone poles and saw logs were personal property, made so by the severance of the trees from the land and the manufacture of the same into these products. On the last day of March, 1905, the title to this personal property was in Clark, one of the appellants here. It is difficult to see what happened between that date and the day following to change the ownership thereof so as to vest the title in the appellee. This being an action of replevin, it was incumbent on plaintiff to show title to the property before there can be a recovery. In this, as we construe the contract between the parties, he has failed, and his right to recover the property cannot be sustained. At the time the writ of replevin was issued, and possession of the poles, ties and saw logs delivered to appellee, the title to same was in Clark, who can now proceed on the bond, or. take such other action as the law authorizes, to protect his rights.

Judgment reversed.


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    McKeever, Appellant, v. Westmoreland Coal Company.

      Contract — Construction placed by parties on contract — Coal lease — Royalties — Mines and mining.

    Where the provisions of a coal lease, relating to royalties, are obscure, and are susceptible of two different meanings, and the lessor for a long period of years has accepted payment of royalties on a basis determined by one construction of the lease, he will not be permitted to set up another construction of the lease, and claim royalties, based upon such construction.
    Argued Oct. 17, 1907.
    Appeal, No. 182, Oct. T., 1907, by plaintiff, from judgment of C. P. Westmoreland Co., Nov. T., 1905, No. 277, on verdict for plaintiff in case of J. L. McKeever, Executor of Robert S. Robinson, deceased, v. Westmoreland Coal Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit for royalties, amounting to $20,453.10, under a coal lease.
    Before McConnell, J.
    Yerdict and judgment for plaintiff for $7,048.08.
    The opinion of the Supreme Court states the case.

      Errors assigned were to various rulings on evidence.

      G. B. Shaw, with him John C. Silsley, Edward E. Robbins and John E. Kunkle, for appellant.

      Paul H. Gaither, with him Charles E. Whitten, for appellee.
    January 6, 1908:
   Opinion by

Mr. Justice Elkin,

Robinson, the lessor, by an agreement in writing, dated December 30, 1886, leased, demised and granted to the Ocelo Coal Company the right to mine and remove ail the black and merchantable coal under a certain tract of land therein described, subject to certain reservations therein contained. The original lessee subsequently assigned the lease to the Westmoreland Goal Company, the appellee here. This controversy grows out of a dispute as to the proper interpretation of that contract. The learned counsel for appellant contend that under the terms of the lease the lessor should be paid thirty cents per 100 bushels of lump coal, or at the rate of $300 for every 100,000 bushels of coal mined and removed from the premises. It was provided in the lease “ that a rent or royalty of thirty cents per 100 bushels of lump coal, and at the rate of $300 per acre of 100,000 bushels of coal mined and removed from said demised premises,” should be paid to the lessor. If this provision of the contract stood alone, without qualification or explanation, or if the parties themselves had not interpreted their own agreement, it must be conceded there would be much force in the position taken by the appellant. It is contended for appellee that a proper interpretation of the agreement is that the parties intended to fix the amount to be paid for each and every acre of coal mined and removed from the premises at the rate of $300 per acre. In support of this position other parts of the agreement are relied on. It is therein provided, among other things, that “ a survey of the coal mined and removed from the said premises shall be made at the end of every six months by a competent civil engineer; ” also that when the coal mined during the preceding six months shall be thus ascertained, “ a calculation shall be made of what the quantity of coal mined comes to at $300 per acre; and if the sum of the monthly payments is less than the sum made calculating by acres,” certain provisions are made for payment of the deficiency. It is further stipulated that the lessee shall pay to the lessor $900 or more each year “ until all the coal hereby leased at the rate of $300 per acre is paid for.” These covenants áre relied on to support the contention that a proper interpretation of the contract itself as a whole only required payment of royalty for the coal mined and removed at the rate of $300 per acre. The agreement was not carefully drawn so as to fix with absolute certainty the exact meaning of the parties on the question of the payment of royalties. It is susceptible of two different meanings, and if the case stood on the agreement alone we would have some hesitation in reaching a conclusion. Whatever doubt has arisen in our minds in the consideration of the question involved is resolved in favor of the appellee because of the acts of the original lessor, who for a long period of years accepted payment of the royalties from the lessees on the basis of $300 per acre, as determined by actual survey and receipted in full for all royalties to the date when paid. On April 4, 1892, Robinson, the original lessor, executed a receipted bill for $300, in which it is stated, “ the same being payment in full to April 1, 1892, for one acre of coal mined or to be mined as per lease to the Oceola Coal Company.” The receipts appearing in the record are in full of all demands to the date fixed therein, or for the actual number of acres mined at the rate of $300 per acre. The conclusion is irresistible that the original lessor interpreted his own contract to mean a sale, or leasing, of his coal at an amount equivalent tp $300 per acre, and for a long period of years accepted payment in full on this basis. We think the parties have construed their own contract, and courts will not disturb the rights and liabilities arising under the same when these things have been definitely determined by the contracting parties themselves.

Judgment affirmed.


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    Wilson v. Heilman, Appellant.

      Trusts and trustees — Separate use trust — Equitable and legal estates— Estate tail.

    Where a deed to a trustee creates a separate use trust in favor of a wife, and uses words importing an estate tail in the wife, with a limitation over upon an indefinite failure of issue of the wife, the separate use trust comes to an end upon the death of the husband, and the legal estate vests in the wife. Such a case is not governed by the general rule that an equitable estate for life followed by a legal estate in remainder do not coalesce so as to vest absolute title in the holder of the equitable life estate.
    Where a deeS. of trust creates a separate use trust for a wife for life and gives, upon her death, a fee to “the children and heirs of the body of the wife,” the word “children,” coupled as it is with the words “heirs of the body,” is to be construed as a word of limitation, and the wife, upon the death of the husband, takes an estate tail which, by the act of 1855, is enlarged into an estate in fee simple.
    Argued Oct. 17, 1907.
    Appeal, No. 168, Oct. T., 1907, by defendant, from order of C. P. Armstrong Co., Sept. T., 1907, No. 87, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Mary Jane Wilson v. J. M. Heilman.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit for balance of purchase money.
    Before Patton, P. J.
    From the record it appeared that the plaintiff, by articles of agreement, sold certain real estate situate in East Franklin township to the defendant. The defendant refused to make payment on the ground that plaintiff had not a good marketable title in fee simple to the real estate in question. It appeared that plaintiff was the widow of Josiah K. Wilson, her husband dying in 1892. She has several children living. By a deed dated March 7, 1877, George Bowser and others made a deed of the land in question to one Henry Blair. The grant was “ to Henry Blair in trust nevertheless, for the sole and separate use, benefit and behoof of Mary Jane Wilson, wife of Josiah K. Wilson, for and during the term of her natural life and then at the death of said Mary Jane Wilson in fee to the children and heirs of the body of the said Mary Jane Wilson or such as may then be alive, and to the heirs of any deceased child leaving children according to the -share proportion such children would have taken if living, the consideration money hereof having been paid and advanced by the father and relatives of the said Mary Jane Wilson, and not by her said husband. And further in case said Mary Jane Wilson should die without leaving issue of her body, the property herein conveyed to revert to and vest in the legal heirs of James Blair.”
    The court, in an opinion by Patton, P. J., -held that the plaintiff had a good title in fee, and made absolute rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      C. E. Harrington, for appellant.
    It must be considered that the trust in the present case arises by deed, and that the intention of the grantor is clearly to protect the estate for the remainder-men: Wolfinger v. Fell, 195 Pa. 12; Little v. Wilcox, 119 Pa. 439.
    It is clear that by the use of these words the children of Mary Jane Wilson were selected on their own account and not as heirs of her body: Curtis v. Longstreth, 44 Pa. 297; Cote v. Von Bonnhorst, 41 Pa. 243; King v. Savage Brick Co., 30 Pa. Superior Ct. 582; Guthrie’s App., 37 Pa. 9.
    The rule has been well expressed that where the limitation over is to take effect upon the failure of children only, or the failure of issue within a given time, then the first taker has a life estate only: Stoner v. Wunderlich, 198 Pa. 158; Nes v. Ramsay, 155 Pa. 628; Beckley v. Riegert, 212 Pa. 91; Corrin v. Elliott, 23 Pa. Superior Ct. 449.

      Rush Fullerton, for appellee.
    Where an estate is granted to trustees for a particular purpose, the legal estate vests in them as long as the execution of the trust requires it, and no longer: Steacy v. Rice, 27 Pa. 75; Shalters v. Ladd, 141 Pa. 349; McKee v. McKinley, 33 Pa. 92.
    The roundabout way which the testator takes to say heirs does not affect the substance, for the second takers here are the lineal descendants of the first taker, and creates a fee tail: Simpson v. Reed, 205 Pa. 53; Freyvogle v. Hughes, 56 Pa. 228.
    The rule in Shelly’s case is a rule of law, not a rule of construction, and where a case falls within it, it applies inexorably without reference to intent: Shapley v. Diehl, 203 Pa. 566; Linn v. Alexander, 59 Pa. 43; Mason v. Ammon, 117 Pa. 127; Boyd v. Weber, 193 Pa. 651; Pifer v. Locke, 205 Pa. 616.
    If a devise over is to take effect on the indefinite failure of issue of the first taker, the first taker takes an estate tail, which estate tail cannot be destroyed by later expressions in the deed limiting an estate over upon an indefinite failure of issue standing alone, unexplained and independent of other language in the same deed to bring it within the rule that a definite failure of issue was intended: Seybert v. Hibbert, 5 Pa. Superior Ct. 537; Cooper v. Leaman, 212 Pa. 564; Richards v. Bentz, 212 Pa. 93; Hogg’s Estate, 27 Superior Ct. 428; Grimes v. Shirk, 169 Pa. 74; Hannon v. Fliedner, 216 Pa. 470; Hastings v. Engle, 217 Pa. 419.
    January 6, 1908:
   Opinion by

Mr. Justice Elkin,

The correctness of the judgment entered in the court below depends upon the construction of the words used in the deed creating a trust estate for the sole and separate use of Mary Jane Wilson, who at the time of the conveyance was a married woman living with her husband. The deed in express language recites the fact that the consideration paid for the properties was advanced by the father and relatives of the wife, and not by her husband. It is perfectly clear that the intention of the donors was to protect the estate of the wife thus created from the improvidence of the husband. That the deed was not drawn by a skillful scrivener is apparent, and that the words used in creating the trust are somewhat confusing and ambiguous must be conceded. On the whole, however, we think the intention of the parties is plain, and the conclusion reached by the learned court below is correct. It is argued for appellant, and with much force, that Mary Jane Wilson, under the provisions in the deed only took an equitable life estate, and that the legal remainder vested in her children as purchasers under the original grant. If this position were sound it would necessarily follow, as contended, that the two estates, one equitable the other legal, not being of the same character, did not coalesce upon the death of the husband. We do not accept this view of the law as applied to the facts of this case. The deed created a coverture trust for the protection of the wife, and when she became discovert by the death of her husband the special trust for her sole and separate use terminated and the legal estate vested in her: Steacy v. Rice, 27 Pa. 75; Shalters v. Ladd, 141 Pa. 349. The general rule that an equitable estate for life followed by a legal estate in remainder do not coalesce so as to vest absolute title in the holder of the equitable life estate, has no application to the case at bar. When appellee, a married woman, became discovert the trust created for her sole and separate use as a protection against the improvidence of her husband ceased, and the legal estate, whatever its character, vested in her.

This brings us to the consideration of the real question in the case. Did appellee only take a life estate, or has she an estate in fee for which she can make a good and marketable title? The learned court below in passing on this.question among other things said: “ Why did the grantor couple the words £ heirs of the body ’ with the words £ child or children ’ ? The one expression must have been intended by him in some manner to qualify or explain the other. The words £ heirs of the body ’ are apt words to create an estate tail, and in our opinion, when the grantor in the conveyance before us did so use them, he created an estate tail in Mary Jane Wilson which the act of 1855 enlarged into an estate in fee simple.” We agree with this conclusion. The word “children” as is well understood, is primarily one of purchase and if it stood alone without qualification in the deed under which this controversy arises, the contention of the appellant should prevail. But it does not stand alone. It is coupled with the words “ heirs of the body ” and other words of inheritance in such manner as to cast the remainder upon the general or lineal heirs of the first taker, not as purchasers from the grantor, hut in succession by inheritance from Mary Jane Wilson. Under these circumstances, the case is within the reason of the rule followed in Linn v. Alexander, 59 Pa. 43; Mason v. Ammon, 117 Pa. 127; Boyd v. Weber, 193 Pa. 651; Shapley v. Diehl, 203 Pa. 566; Pifer v. Locke, 205 Pa. 616; Hastings v. Engle, 217 Pa. 419.

This being our construction of the deed, it is not important to consider the contention of appellant relating to the limitation over to the heirs of James Blair. We are of opinion that when the trust terminated by the death of the husband, the legal estate vested in appellee, and that the words used in the deed created an estate tail in her, which was enlarged into a fee simple by the statute and could not be cut down to a life estate by a limitation over to the heirs of James Blair upon an indefinite failure of issue: Grimes v. Shirk, 169 Pa. 74; Hannon v. Fliedner, 216 Pa. 470; Hastings v. Engle, 217 Pa. 419.

J udgment affirmed.


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    Green, Appellant, v. Pittsburg, McKeesport & Greensburg Street Railway Company.

      Negligence — Street-railways—Passengers — Presumption — Evidence— Blowing out of controller of an electric car.

    Where the electric controller of an open summer car blows out, and after the car has been stopped with reasonable promptitude a woman passenger is found lying upon the ground some fifteen feet back from the rear end of the car, and there is no evidence whatever to show how the woman came to be in such a position, a nonsuit is properly entered against'her in a suit brought by her against the railway company to recover damages for her injuries.
    If in such a Case the plaintiff had averred and offered evidence in support that she was injured as the direct result of the defective working of the controller, as by burning, or in some other way as the result of an intervening cause, which was put in operation in consequence of the action of the controller, without fault of her own, and with the presumption of negligence on the part of the defendant arising from the accident, her case would have been for the jury; but in the absence of such evidence a nonsuit was proper.
    Argued Oct. 16, 1907.
    Appeal, No. 10, Oct. T., 1907, by plaintiff, from order of C. P. Westmoreland Co., May T., 1905, No. 16, refusing to take off nonsuit in case of Bridget Green v. Pittsburg, McKeesport & Greensburg Street Railway Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    Before McConnell, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in refusing to take off nonsuit.

      James L. Kennedy, with him Joseph A. McCurdy and J. E. B. Cunningham, for appellant.
    The case was for the jury: Cameron v. Citizens’ Traction Co., 216 Pa. 191; Williams v. Meadville, etc., Ry. Co., 31 Pa. Superior Ct. 580; Baylor v. Stevens, 16 Pa. Superior Ct. 365; Rife v. Middletown, 32 Pa. Superior Ct. 68; Valentine v. Colburn Co., 10 Pa. Superior Ct. 453; Brooks v. Phila. & Reading Ry. Co., 218 Pa. 1; Morgan v. Westmoreland Electric Co., 213 Pa. 151; Lake Shore, etc., Ry. Co. v. Rosenzweig, 113 Pa. 519; Tilburg v. Northern Cent. Ry. Co., 217 Pa. 618; Kreamer v. R. R. Co., 214 Pa. 219; Finch v. Conrade, 154 Pa. 326.
    The question as to whether the injury was the proximate cause was for the jury: Brashear v. Philadelphia Traction Co., 180 Pa. 392; Cohen v. Philadelphia & Reading Railroad Co., 211 Pa. 227; Drake v. Kiely, 93 Pa. 492.
    The happening of an accident to a passenger on a street car, if the accident is connected with the means of transportation, raises a presumption of negligence on the part of the company: Dougherty v. Pittsburg Railways Co., 213 Pa. 346; McCafferty v. Pennsylvania Railroad Co., 193 Pa. 339; O’Connor v. Scranton Traction Co., 180 Pa. 444; Dixey v. Philadelphia Traction Co., 180 Pa. 401.

      James S. Moorhead, with him Robert W. Smith, for appellee.
    There was no proof that the explosion in the controller was the proximate cause of the injury. Granted the explosion, still the plaintiff must show that it was harmful to her: Trout v. Turnpike Co., 216 Pa. 119.
    January 6, 1908:
   Opinion by

Mr. Justice Stewart,

Not only was the evidence adduced on behalf of the plaintiff insufficient to warrant an inference that plaintiff’s injuries were received in the way alleged in the statement of claim, but it left the immediate and proximate cause of the accident wholly undisclosed. The plaintiff had been a passenger on one of the defendant company’s open summer cars, occupying a seat in one of the transverse rows back of the middle of the car, and near the end of the row. It was at an early hour in the nighttime, and there were some fifteen or twenty other passengers in the car. Suddenly and without warning, the electric controller on the rear platform burned or blew out with something of a report, followed by a display of electricity at the rear end of the car. The car was proceeding at a moderate rate, as it was approaching a crossing where certain passengers expected to alight. Many of the passengers, if not all, left the car, because of the electric disturbance, before it came to a stop. When the stop was made, the plaintiff was found lying upon the ground some fifteen feet back from the rear end of the car. In the statement filed, the cause of action is declared to be defendant’s negligence in “ permitting the electric machinery of said car to become so deranged and out of order, thereby setting fire to said car and charging said car with electricity,” and “neglecting to stop said car to permit plaintiff to escape danger. Whereupon and by reason of defendant’s carelessness, plaintiff was violently and suddenly thrown from said car,” etc. With respect to the negligence charged because of failure to stop the car, it is only necessary to say that there is no evidence from which the jury could have found that the car was not stopped with reasonable promptitude under the circumstances. It majT be conceded in regard to the defective controller, only for the purposes of this case however, that a presumption of negligence attends the blowing or burning out of a controller of an electric street car. Had the plaintiff averred, and offered evidence in support, that she was injured as the direct result of the defective-working of the controller as by burning, or in some other way as the result of an intervening cause which was put in operation in consequence of the action of the controller, without fault of her own, with the presumption of negligence on part of the defendant attending, her case must haye gone to the jury. But there was neither averment nor proof of any such facts. The averment was that by reason of negligence in connection with the controller, plaintiff was violently and suddenly thrown from the car and thereby severely injured. The evidence affords no explanation of how she escaped from the car. The injuries she claims to have suffered were manifestly occasioned by a fall. But what -was the immediate, operating cause that produced the fall % Certainly not the burning out of the controller or the escaping fluid. Such a result is not contended for. In her testimony plaintiff does not pretend to explain how, or in what manner, or from what cause she fell; nor does a single witness called on her behalf, for the reason that no one seems to have seen her alight from her car. The plaintiff herself testifies that she saw the electric disturbance; saw passengers rise in seats ; that she arose from her seat and stood holding to the back of the seat immediately in her front, and that she has no recollection of anything that occurred after that until she became conscious of her injury when on the ground. It is quite obvious that between the burning of the controller and plaintiff’s fall there must have been an intervening, operative cause. What this was nowhere appears, except as the suggestion is made in appellant’s argument that the plaintiff fell while attempting to escape from a peril to which she had been exposed through defendant’s negligence. This may be a true explanation. That it is not an unreasonable conjecture is the most that can be said in its favor. Several possible explanations quite consistent with the evidence could be advanced, which if lacking equal probability would be none the less reasonable, some of them suggesting causes wholly independent of defendant’s alleged negligence. Was it for the jury to speculate as to what the intervening cause was, without the slightest suggestion to be found in the evidence that would support one inference rather than another? A verdict under such circumstances as was said in Railroad Company v. Schertle, 97 Pa. 450, a case presenting much the same features as this, would have no better foundation than a guess, or at most mere possibilities, and this will not do. To the same effect is Trout v. Turnpike Road, 216 Pa. 119. There we said: “The burden in such cases is always on the plaintiff to show the casual connection between the accident and the negligence alleged. This may be done by showing facts and circumstances from which the connection may be .inferred by process of rational deduction, but never by speculation.” We have indicated sufficiently the defect in plaintiff’s cause as submitted. Judgment of nonsuit was properly entered.

Judgment affirmed.