author: Mr. Justice Brown,

text:
    International Coal Mining Company v. Pennsylvania Railroad Company, Appellant
    (No. 1).

      Evidence — Rules of court — Rule to take testimony — •Practice, C. P. — Appeals.
    A rule of court which provides that a rule may “be entered by either party to take the depositions of witnesses without regard to the circumstances of their being aged, infirm or going witnesses, stipulating however eight days! notice to the adverse party,” is contrary to law and void. An order directing a witness to answer a question propounded to him under such a rule, is a final order, as far as the witness is concerned, and he may take an appeal from it without waiting for the termination of the suit.
    Argued Jan. 19, 1906.
    Appeal, No. 286, Jan. T., 1905, by John Lloyd, from order of C. P. No. 2, Pliila. Co., June T.., 1904, No. 3,929, •compelling, witness to.answer question in case of International Coal Mining Company v. Pennsylvania Railroad -Company.
    Before Mitchell, C. J., Fell, Beown, Mesteezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Assumpsit to recover rebates.
    From the record it appeared that while an action was pending, plaintiff entered a rule to take depositions on John Lloyd on eight days’notice. At a meeting held in pursuance of the .rule ■ Lloyd was asked whether any officer-or director of the Pennsylvania Railroad Company was a stockholder in the Columbia Coal Company. The witness refused to answer the question. The court subsequently made an order directing him to answer the question propounded to him.

      Error assigned was the above order of the court.

      John C. Bell, for appellant.
    The rule of court is illegal: Despeaux v. Penna. R. R. Co., 81 Fed. Repr. 897; Angell v. Angell, 1 Sim. & Stu. 88; Pettebone v. Everhart, 4 Kulp, 353; Buck v. Strong, 6 Pa. Dist. Rep. 116; Shirley v. Earl Ferrers, 3 P. Wms. 77; Earl Spencer v. Peek, L. R. 3 Eq. 415.

      James W. M. Newlin, for appellee.
    March 19, 1906:
   Opinion by

Mr. Justice Brown,

As between the plaintiff and the defendant below, the order appealed from may be regarded as interlocutory, but as to this appellant it is certainly final. It was made upon a matter entirely distinct from the general subject of the litigation. As the appellant is not a party to the suit, he could not be heard on appeal from a final judgment in it. This distinction seems to be overlooked by counsel for the appellee. If the appellant had not appealed from the order directing him to answer, the penalty for disobedience of it immediately confronted him. Though not interested in the result of the suit between the plaintiff and defendant, he is very much interested in the order of the court, which is final as to him, and he, therefore, has a right to be heard on the question of the authority of the court to make it, without waiting to be attached for refusing to obey it.

At common law a commission could not issue to take the testimony of witnesses de bene esse in any case: 3 Bl. Com. 383; Story’s Eq. Jur., sec. 1514. The practice of taking testimony out of court comes to us from the chancery courts, where, in administering justice, the rules of the common law were found to be deficient. In the equity courts bills are entertained to perpetuate testimony, but only where the matter as to which the witnesses are to be examined cannot be made the subject of immediate judicial investigation. The right to file such a bill exists whenever one is threatened with future disturbance of present possession or enjoyment of property or rights, and no suit at law can be instituted for their protection and preservation at the time the bill is filed. In addition to a bill to perpetuate testimony to be used in a suit not brought, but which may be instituted in the future, the testimony of witnesses to be used in a pending proceeding may be taken, in view of their special conditions or circumstances, or it will be lost to the party whose rights in the pending suit are dependent upon it. Such witnesses are the aged, infirm or those about to depart from the country, and if there be but a single witness as to the matter upon which he is to be examined, his testimony may be taken out of court. The extent of this jurisdiction of equity to perpetuate and preserve testimony is thus stated in Angell v. Angell, 1 Sim. & Stu. 83: “If it be possible that the matter in question can, by the party who files the bill, be made the subject of immediate judicial investigation, no such suit [to perpetuate testimony], is entertained.. But if the party who files the bill can, by no means, bring the matter in question .into present judicial investigation (which may happen, when his title is in remainder, or when he is himself in possession), there courts of equity will entertain such a suit; for, otherwise, the only testimony which could support the plaintiff’s title, might be lost by the death of his witnesses. Where he himself is in possession, the adverse party might purposely delay his claim with a view to that event. It is, therefore, ground of demurrer to a bill to perpetuate testimony generally, that it is not alleged by the plaintiff that the matter in question cannot be made the subject of present judicial investigation. But, courts of equity do not merely entertain jurisdiction to. take or preserve testimony, generally, to be used on -a future occasion, where no present action can be brought, but also to take and preserve, .testimony in special cases in aid of a trial at law, where the subject admits of present investigation. At law, no commissions to examine witnesses.who .are abroad, for the purpose of being used at the trial, can go without the consent of the adverse party. Courts of equity will, upon a bill filed, grant such a commission without the consent of the adverse..party.. So courts of equity will entertain a bill to preserve the testimony of aged and infirm, witnesses to be used at the trial at law, if they are likely to die before the time of trial can arrive ; and will even entertain such a bill to preserve the testimony of.a witness who is 'neither aged or infirm, if he happen to be the single witness to support the. case.”

For cause existing, courts of equity permit testimony to be taken for its perpetuation and allow witnesses to be examined outside of the court where an action may be pending in which their testimony is material' and importantand unless testimony can be so perpetuated and taken, in advance of a trial,' justice would often miscarry. But courts of equity have gone ho further in the departure from the rule of the common law than to allow testimony to be perpetuated and taken where cause exists-for perpetuating and taking it. When, in view .of the condition; circumstances or conduct of a witness, his testimony may be lost to the party needing it, if not taken in advance of the trial, it ought to be so taken, but as courts of equity have not gone beyond this, it is the limit for courts of law.

By the rule in the court below, under which, the appellee insists that it has a right to -examine the appellant outside of court and in advance of the trial, either party to a pending action may át any time, as a matter of course, .with no cause existing for doifigso, proceed to. examine any witness in advance of the trial, though he be neither aged,: infirm nor' going, and there be no reason , for supposing that, he’will not appear in court when subpoenaed to do so. The rule is : “A rule may in like manner be entered by. either party to take the depositions of witnesses without regard to the circumstances of their being aged, infirm or going', witnesses, stipulating, however, eight days’ notice to the adverse party; subject,’ nevertheless, in all other respects to the existing rules and regulations.”

In the regular and orderly trial.of a cause witnesses appear in- open court, and jurors, from seeing, as well as hearing them, pass upon their-credibility. ’.Exception to this-wise rule of.the common law must.be based upon some necessity requiring it to -be- disregarded in the interest of justice. But .under the-rule -in the court below, for no reason. and with.no -necessity for taking, the .deposition of. a witness..in advance of a trial, either party to the action, upon a mere whim or caprice, may compel the examination of every one of his witnesses be-fore a magistrate or notary public in advance of the trial, and require the opposite-party,.with his counsel, to appear as often as such an examination takes -place. In this disorderly, innovation upon trial before a jury, licensed by the rule below, the rights of witnesses are not to be overlooked. As a rule, it is inconvenient for anyone' to be interrupted in his business or vocation in life by being compelled, in obedience to a subpoena, to appear in court to testify on the trial of a cause; but every member -of society must expect at times to be subjected to this inconvenience, because the .administration of justice and his duty as a citizen require him to submit to it. This, however, is not the case when he is compelled to appear before a commissioner to testify in advance of the trial upon the mere whim or caprice of a plaintiff or defendant, and in the absence of any necessity requiring him to so appear. There having been no reason shown why the appellant should have been subjected-to .the inconvenience and annoyance of being called before a notary public to testify as a witness for the plaintiff in advance Of the trial, he has a right to complain of the unwarranted calling of him away from his business, especially as he is liable to be called into court by the very party taking his deposition, to'testify on the trial of the cause. It is of this that he complains, and his complaint is just.

By the Acts of May 23, 1887, P. L. 158, and June 11, 1891, P. L. 287, the deposition of a witness may- -be taken oil a commission, in accordance “ with the laws of this commonwealth" and the rules' of the proper court; The rule of court must have “the laws of this commonwealth” to-'sustain ..it; There is no statutory nor unwritten law of this commonwealth to sustain the rule of the couiT below, which" came tb it as -an inheritance from the old district court, where it was adopted as a rule of convenience severity years ago. That it should have stood. ..this long without complaint is a tribute to the moderation'and'regard for rights with which it hasbóén administered,, but now that it is challenged, we are bound to say that it is without authority of law, and the attempt to enforce it is equally;so;. We are informed that the-learned..court'.below has "indicated its own view in -this regard-by rescinding the rule and adopting in its place one by which, “ upon notice and cause shown,” witnesses may be examined without regard to their being aged, infirm or going. The order directing the appellant to answer the questions propounded before the notary public is reversed with costs.


source: Caselaw Access Project

license: Public Domain

text:
    International Coal Mining Company v. Pennsylvania Railroad Company, Appellant
    (No. 2).

      Appeals — Interlocutory order — Evidence—Rule for an attachment.

    An order under a rule for an attachment against a witness directing that the proceedings shall stand over until a day named, in order to give the witness an opportunity to testify or to come into court, is not a final order from which an appeal lies, inasmuch as the appellant was mot directed by the order to answer the question propounded to him.
    Argued Jan. 19, 1906.
    Appeal, No. 272, Jan. T., 1905, by William A. Patton, from order of C. P. No. 2, Phila. Co., June T., 1904, No. 3,929, in attachment proceedings in case of International Coal Mining Company v. Pennsylvania Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Appeal quashed.
    Rule for an attachment against a witness.

      Error assigned was order quoted in the opinion of the Supreme Court.

      John G. Johnson, for appellant.

      James W. M. Newlin, for appellee.
    March 19, 1906:
   Opinion by

Mr. Justice Brown,

This appeal was premature. The order from which it was taken was not a final one. The appellant was not ordered to answer the questions propounded. His appeal, taken Septemb.er 15, 1905, was from an order made on July 26,1905, directing that the proceeding instituted to compel him to answer should stand over until September 18, 1905, “ in order to give him an opportunity to appear before the notary and testify, or otherwise to come into court and set forth such matters of fact as he may deem pertinent to show cause why the rule for attachment should not be made absolute.”

Appeal quashed.


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

text:
    Timler, Appellant, v. Philadelphia Rapid Transit Company.

      Negligence — Street railways — Side collision — “Stop, look and listen”— Contributory negligence.

    When the driver of a team at the intersection of two city streets, fails to look immediately before going upon street railway tracks, he is guilty of contributory negligence.
    In an action against a street railway company to recover damages for personal injuries, it appeared that plaintiff was injured while crossing in a wagon the tracks of a street railway at the intersection of two streets. Plaintiff looked twice and saw the car rapidly approaching. He first saw it a little more than 300 feet away. He drove on about ten feet and stopped, and then saw the car a little more than 200 feet distant. At the time he last looked it was necessary for him to travel thirty-two feet to clear the tracks. Held, that it was the duty of the driver to stop a third time before going on the track, and that in failing to do so he was guilty of contributory negligence, and could not recover.
    Mestrezat and Potter, JJ., dissent.
    Argued Jan. 22, 1906.
    Appeal, No. 172, Jan. T., 1905, by plaintiff, from judgment of C. P. No. 5, Phila. Co., June T., 1903, No. 4,463, on verdict for defendant in case of Herman Timler v. Philadelphia Rapid Transit Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Davis, J.
    The facts are stated in the opinion of the Supreme Court.
    The court gave binding instructions for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      Samuel E. Cavin, with him Frederick Beyer, for appellant.
    The-learned'judge erred in assuming- that because between the two observations made by plaintiff it appeared that the car had traveled at a high rate of speed the plaintiff must.necessa-rily take the risk that the car would continue such speed up to the crossing; the car at the time of the second observation being then 220 feet from the crossing, whilst the plaintiff’s horse was but nine feet away from the track to be crossed: Hamilton v. Traction Co., 201 Pa. 351; Callahan v. Phila. Traction, 184 Pa. 425.
    The learned judge erred in ássuming that plaintiff did not look for th.e .approaching car'when he was about to. cross the track, in face of the testimony that he looked when he was but nine feet away: Moser v. Traction Company, 205 Pa. 481.
    The learned judge erred in giving binding instructions to the jury in favor of a verdict for defendant: Beach v. Pennsylvania R. R. Co., 212 Pa. 567.

      Thomas Leaming, with him Russell Duane, for appellee.
    Plaintiff was guilty of contributory negligence in not looking for the car at the edge of the track: Ehrisman v. East Harrisburg City Pass. Ry. Co., 150 Pa. 180; Darwood v. Union Traction Co., 189 Pa. 592; Kern v. Second Avenue Traction Co., 194 Pa. 75; Burke v. Union Traction Co., 198 Pa. 497; Pieper v. Union Traction Co., 202 Pa. 100; Keenan v. Union Traction Co., 202 Pa. 107; Moser v. Union Traction Co., 205 Pa. 481; Boring v. Union Traction Co., 211 Pa. 594; Brown v. Traction Co., 14 Pa. Superior Ct. 594.
    Plaintiff was guilty of Contributory negligence in attempting to cross the track after two observations had disclosed- the car rapidly approaching and gaining speed: Mease v. United Traction Co., 208 Pa. 434; Smith v. Electric Traction Co., 187 Pa. 110; Greenwood v. P. W. & B. R. R. Co., 124 Pa. 572.
    -'-The decisions-of-the-'Supreme-Court,'in- their- chronological order, as to crossing collisions between wagons and 'street cars, are as follows: — Thomas v. Citizens’ Pass. Ry. Co., 132 Pa. 504; Carson v. Federal Street, etc., Ry. Co., 147 Pa. 219; Ehrisman v. East Harrisburg City Pass. Ry. Co., 150 Pa. 180; Wheelahan v. Traction Co., 150 Pa. 187; Winter v. Ry. Co: 153 Pa. 26; Gilmore v. Ry. Co., 153 Pa. 31; Downey v. Pittsburg, etc., Traction Co., 161 Pa. 131; Omslaer v. Traction Co., 168 Pa. 519; Callahan v. Traction Co., 184 Pa. 425; Smith v. Electric Traction Co., 187 Pa. 110; Darwood v. Union Traction Co., 189 Pa. 592; Kern v. Second Ave. Traction Co., 194 Pa. 75; Boehmer v. Traction Co., 194 Pa. 313; Bomscheuer v. Consolidated Traction Co., 198 Pa. 332; Burke v. Union Traction Co., 198 Pa. 497; Tyson v. Union Traction Co., 199 Pa. 264; Harman v. Penna. Traction Co., 200 Pa. 311; Hamilton v. Consolidated Traction Co., 201 Pa. 351; Pieper v. Union Traction Co., 202 Pa. 100; Keenan v. Union Traction Co., 202 Pa. 107; March v. Union Traction Co., 209 Pa. 46; Moser v. Union Traction Co., 205 Pa. 481; Mease v. United Traction Co., 208 Pa. 434.
    March 19, 1906:
   Opinion by

Mr. Justice Elkin,

The undisputed evidence is that when appellant looked the-second and last time..’the head of his' horse-was nine feet from, the track, while he .himself .was seated on his.wagon nearly twenty feet distant. When he last looked and- saw the approaching car it was necessary, in order to cross in safety, that he should drive nine feet to the.track, five feet across it; which-added to the length.ofhis horse and wagon, eighteen feet, made;, a' total of thirty-two feet before he could pass the car in safety.Notwithstanding these-facts, he disregarded his duty to look immediately before going upon the track, and was injured by the collision with the car. Under the settled rule of oúr cases he was .guilty of .contributory negligence, and there can be.ho recovery. This court has frequently said that when, the driver of a' team at the intersection of two city streets, fails to look immediately before going, upon the track, he is guilty of con-tributory negligence: Ehrisman v. Passenger Railway Co., 150 Pa. 180; Darwood v. Union Traction Co., 189 Pa. 592; Kern v. Second Avenue Traction Co., 194 Pa. 75; Burke v. Union Traction Company, 198 Pa. 497; Pieper v. Union Traction Company, 202 Pa. 100; Keenan v. Union Traction Company, 202 Pa. 107; Moser v. Union Traction Company, 205 Pa. 481; Boring v. Union Traction Company, 211 Pa. 594.

The case at bar cannot be distinguished from the cases cited. Indeed, the facts in many of the cited cases more strongly favored the plaintiff than do those of the present case. The appellant looked twice and saw the car rapidly approaching. He first saw it a little more than 800 feet away. He drove on about ten feet and saw the car a little more than 200 feet distant. In other words, while he drove ten feet the car moved about 100 feet. At the time he last looked it was necessary for him to travel thirty-two feet to clear the tracks, while the car would have to move about 200 feet before reaching him. It is clear, therefore, that if he drove at the same rate of speed and the car continued to move at the same rate, a collision must result. Notwithstanding these facts he continued on without again looking for the car which he knew was rapidly approaching. If he had looked immediately before going upon the track, as the rule of our cases requires, he would have seen the car less than 100 feet away, and should have known that he could not cross in safety if he continued driving at the same rate of speed. The evidence shows that he took no precaution for his safety after he looked the second time. The rule of law which requires him to look immediately before going on the track is not complied with if when he looks and sees danger he makes no effort to avoid it. Even if it be conceded that the car was running at an unusual rate of speed, appellant was not thereby excused from the performance of duties imposed on him by law. If he had observed his duty to look immediately before going on the track, the question of defendant’s negligence in running the car at an excessive rate of speed might have been properly submitted to the jury. He did not do so, and the case turns not on the defendant’s negligence, but on the' contributory negligence of plaintiff. Indeed, the greater the danger from the rapidly approaching car, the more imperative his duty to look immediately before going on the track. It was not only his duty to look at the proper place, but when he looked and saw danger which could be avoided by the exercise of reasonable care, it was bis duty to avoid that danger. We have frequently said that it is as much the duty of the driver of a team to avoid a collision in these cases as it is of the motorman of a car. The learned court below gave binding instructions for defendant, and in this we see no error.

Judgment affirmed.

Mr. Justice Mestrezat,

dissenting:

The learned trial judge held that the plaintiff was guilty of contributory negligence and on that ground directed a compulsory nonsuit. The plaintiff and another witness were called in his behalf. It was admitted, however, on the record that fourteen other witnesses would corroborate the evidence given by the two witnesses who testified.

The facts are not in dispute. About 8 o’clock on the evening of July 11, 1903, Timler, the plaintiff, drove a one horse bottling wagon east along the south side of Clearfield street, which runs almost east and west. This street opens into Kensington avenue on which the defendant company operates a double track electric car line. When Timler gob to the house line on the west side of Kensington avenue he looked south and saw no car. He then drove on and, as was his custom, looked at the window in a barber shop on the opposite side of Kensington avenue and saw no reflection of an approaching car. When he gob even with the curb on the west side of Kensington avenue he looked again and saw a car coming from the south at a distance of 333 feet. Timler then says he knew he had plenty of time to cross in safety. He drove on, and when his horse’s head was over the west rail of the first track and nine feet from the second or north bound track he looked again and saw the car coining at a distance from him about 220 feet. He then struck his horse with the line and started to cross the north bound track, but before he had passed entirely over it the rear right wheel of his wagon was struck on its hub and the tire was struck on the rear part of the wheel. The wagon was thrown to the left and Timler to the right side.

The car approached the crossing at a speed of at least twenty miles an hour, double its ordinary speed at that place. Its speed was accelerated as it approached the crossing and ran more than 100 feet after the collision before it was stopped.

I do not agree with the majority of the court that the facts, which are undisputed and are Stated above, are sufficient to convichthe plaintiff of negligence as a matter of law... I.fail-to see wherein .they, disclose any negligence on the part of the; plaintiff. He approached Kensington avenue with the greatest care. Before he had passed the house line and entered the avenue he looked to see if a car was approaching. None was in sight. As he proceeded lié observed the same care, and looked at the barber" shop window .where he could see the reflection of a car if any were approaching. Again he saw none. He proceeded towards the crossing and when in line with the curb on Kensington avenue, still keeping a lookout, he saw for' the first time á car approaching from the south. It was 333 feet distant. He testified that he then thought he had plenty of time' -to cross in safety. He continued to observe the car as it approached the crossing until his horse’s head -was over the' first'rail of the westernmost track of the car line. . His- action subsequent to that timé is, in-the judgment of the trial court and of a majority of this.court, what convicts him of negligence. Prior to this time it is not claimed by anyone that he failed to observe the care required of him, but the attempt to cross the. north bound track under the circumstances is, in the opinion of the niajority of the court, sufficient to convict him of negligence, The majority opinion in effect holds that the plaintiff was negligent because it does not affirmatively appear that in proceed-: ing' across the second track, he did not keep his eyes on the car instead of on his horse and in front of him. That view, how7 ever, overlooks the uncontroverted facts in the case, and.the' plaintiff’s rights and duties thereunder. It was Saturday evening, and a great many people were on and about the crossing. When the plaintiff saw the car at a distance of 220 feet or more, he was committed to crossing the first-track. . He was not driving in front of an approaching car where a- collision was imminent, nor, in his opinion, at all probable. On the contrary, under the evidence, the jury would have been clearly justified in finding that if the car had run at its ordinary speed he could have crossed the north bound track in safety. The undisputed fact is that the car approached the crossing at twice its ordinary rate of speed, and, further; that it struck the -rear of the plain7 tíff’s'wagon justas it was leaving the north bound track.' It-is, therefore, clear and beyond all doubt- that the plaintiff was unquestionably justified in believing .that when he attempted to cross the defendant’s second track he could do so with safety. The jury would have been compelled to have so found had the question been submitted to them. The plaintiff had the right, in determining whether he could cross in safety, to assume that the defendant’s car would not run at a grossly negligent rate of speed, but would travel at its usual rate. This court so held in Callahan v. Traction Co., 184 Pa. 425, where Mr. Justice Fell, delivering the unanimous judgment of this court, said: “ The sum of the appellant’s contention is that as the plaintiff saw the car and attempted to cross Thirteenth street ahead of it, he took the chance of being able to do so, and cannot recover. The chance which the plaintiff took was that of crossing the street in safety in advance of a car which approached at the usual rate of speed. It was not the chance of being run down by a car propelled at an unusually high rate of speed of which he had no notice, and which was not checked as the car approached the crossing. A person about to cross a street at a regular crossing is not bound to wait because a car is in sight. If a car is at such a distance from him that he has ample time to cross if it is run at the usual speed, it cannot be said as a matter of law that he is negligent in going on.” Applying the rule there announced with the unanimous consent of this court, the plaintiff was amply justified on the undisputed facts in believing that he could cross the defendant’s second track in perfect safety and hence his attempt to do so cannot as a matter of law convict him of negligence.

It certainly would not have been prudent for the plaintiff to have stopped on the south bound track. This would have endangered himself and bis team. At any moment a car might have approached from the north, and had it been running at the excessive and negligent rate of speed at which it is conceded the north bound car was traveling, there would have been a collision, possibly resulting in the plaintiff’s death. Before passing the house line and until he was committed to crossing the south bound track, a place of danger, the evidence establishes, and it is conceded, that he kept a constant lookout for an approaching car. He was then justified in proceeding to cross the second track, as held in the recent case of Haas v. Chester Street Railway Co., 202 Pa. 145, where this court says (p. 147) : “ If the act of looking, commenced at a point back of the house line, continues when it is reached and until the driver is so far committed to the act of crossing that it is more dangerous to attempt to stop than to go on, he has done all the law requires in that regard.” For this court to lay down the proposition that with an approaching car at least 220 feet distant from the crossing the plaintiff was as a matter of law guilty of negligence in not stopping on the first track and in attempting to cross the second track nine feet distant is a step beyond anything which this court has heretofore taken and, as we have seen, in conflict with its own decision. The effect of such a ruling is still to further deprive the public of the use of the streets of a city and turn them over to the unlimited and unrestrained use of the companies operating the electric car systems. While a street car has a right to the use of the street superior to that of the traveler, yet the latter is still entitled to use the street, and that right must be recognized by the street car. Both the street car and the traveler have rights at a crossing, and it is the duty of the company’s employees in charge of the car to approach a crossing with the car under such control that the safety of the traveler, exercising proper care, will not be endangered. It is conceded here, or at least must be, that the motorman in charge of this car was guilty of the grossest negligence. From the time the car was at least 333 feet from the crossing and until the collision, the plaintiff, as he approached the crossing, was in plain view of the motorman. It was the duty of the motorman to put his car under control so that he could have prevented the collision if the plaintiff was on the track. Instead of observing this duty, clearly imposed upon him by all our cases, he continued to accelerate the very high rate of speed at which his car was traveling, until the collision occurred. This grossly negligent act of the motorman was the proximate cause of the collision, and was the only reason why the plaintiff was unable to pass the crossing before the car reached it.

This is not a case where the traveler fails to exercise care by not looking as he approaches the track and is struck by a car which he does not see but could have seen. It distinctly belongs to that class of cases where the traveler, exercising the care required of him by constantly looking for an approaching car, and seeing it, has just reason to believe on the assumption the car will run at its ordinary speed, that he can pass the track in safety. I know of no decision which declares him to be at fault when, under such circumstances, he is injured in a collision with an electric street car propelled at a grossly negligent rate of speed.

Believing that the judgment of the trial court is not supported by reason nor by precedent in this or any other jurisdiction I would reverse it and send the case to a jury.

Mr. Justice Potter,

dissenting:

Under the facts of this case, I cannot agree that the trial judge was justified in holding as matter of law that the plaintiff was guilty of contributory negligence. The testimony does not show just how far away the car was when his horse entered upon the tracks. But there is positive evidence that when the horse was only nine feet from the track, the car was 220 feet distant. Three steps of the horse would cover the nine feet, and even if the car had been approaching at a speed three times that of the horse, it would have been nearly 200 feet distant when the horse first came upon the track and thus gave to the motorman unmistakable warning that the line ahead of him was not clear, and that he must have his car under full control, and approach with caution. It seems to me that contributory negligence upon the part of the driver can only properly be held as a matter of law, when he drives in front of an approaching car, which is so near to him that the motorman cannot reasonably be expected to stop his car in time to prevent the collision. It would seem that a reasonable test to be applied in such a case, would be to inquire what was the distance to the car when the horse entered upon the line of the track. If it was not more than a car length away, or was within some such immediate proximity, not a sufficient distance to enable the motorman to stop in time, then, as a matter of law, the driver may justly and properly be held guilty of con-' tributory negligence. But when there is a space between the approaching car and the line of crossing, ample under ordinary circumstances to permit of safe passage ; or where the space is sufficient for the motorman to stop his car, it being under proper control, and thus avoid collision; if, under either of these conditions, a collision occurs during an attempted crossing, the questions of negligence and contributory negligence may very propei’ly be left to the determination of the jury. The duty of exercising care in the use of the streets, and particularly at intersections, is clearly incumbent upon both parties. The motorman has no right to drive his car straight ahead at a street crossing without any slackening of speed, and without any regard to the safety of vehicles that may be lawfully crossing at right angles, the line of his track. It is his duty at such places to have his car under control, so that he may slow down or even stop, if necessary. The distance at which a driver may prudently attempt to cross in front of a car has never, perhaps, been accurately fixed ; but it has, I think, generally been regarded as prudent to cross, if the car is at the time far enough away to permit the motorman, if necessary, to bring it to a full stop before reaching the line of intersection. The evidence in a host of cases before this court, has shown that ordinarily a car under proper control can be stopped within its own length, or, say, within a distance of thirty feet. Surely, then, a space of twice or three times that much may be considered as affording a liberal margin of safety, within which to cross the track ahead of the car.

The testimony in the present case shows that when the driver started his horse across the track, the car must have been at least 100 feet away, and possibly considerably more. I cannot agree that it should be deemed negligence per se, for a driver to start to cross the track of a street railway, at the intersection of two city streets, when at the moment he starts to cross the line, there is no approaching car within a-distance of 100 feet.

There is also testimony in this case that would have justified the jury in finding that the car was running at a very high rate of speed, and that this unusual rate of speed brought the car upon the plaintiff very much sooner than would have been the case had it been running at the ordinary rate. Even as it was, the plaintiff had almost cleared the track when he was struck. The inference in this regard might fairly be, that the plaintiff had a reasonable right, in making his calculations for the crossing, to presume that the car would not approach the point of intersection at a speed greater than usual.

I would reverse this judgment and submit the questions of negligence and contributory negligence to the jury.


author: Mr. Justice Stewart,

text:
    Dunham v. McMichael, Appellant.

      Evidence — Declarations—Telephone—Identification of person speaking over telephone.

    In an action by a wife against another woman for the alienation of the affections of plaintiff’s husband, plaintiff sought to prove declarations of the defendant made to herself over the telephone. Plaintiff called her young son to testify that the phone hung in a bathroom where he could hear everything that was said while his mother held the receiver. He testified that he heard the defendant announce her name and start an angry conversation. On cross-examination he admitted that he did not know the defendant, had never seen her, and had never heard her voice before, unless it was she who had earlier in the same day attempted to call up the plaintiff on the ’ phone. The evidence was ruled out. Defendant was then called on cross-examination, and was asked whether she had called up the plaintiff on the day designated by the boy. She admitted one conversation with the plaintiff over the ’ phone, but asserted her inability to fix the date when it occurred, hour, day or month. She also admitted that the conversation was an angry one. The boy was subsequently recalled, and permitted to testify as to the alleged statements of defendant over the ’ phone. Held, that the defendant’s voice was not sufficiently identified, and that it was error to permit the boy to testify as to what he heard.
    Testimony may be rejected which appears to be founded on data so scanty that the witness’s alleged inferences from them may be pronounced either absurd or extreme.

      Husband and wife — A lienation of husband’s affections — Damages—Evidence.
    In an action by a wife against another woman to recover damages for the alienation of her husband’s affections, where the plaintiff shows as the basis of damage the probable annual expenditure required for the support of plaintiff’s family in the style in which they had been living before the cause of action arose, the defendant may show that the plaintiff had an income of her own which had been applied towards the costs of the family’s living, and that the actual loss of support was the difference between the total and the plaintiff’s contribution.

      Evidence — Harmless error — Reversal.
    The admission of evidence manifestly harmless is no ground for reversal, even if it be erroneous to admit it.
    Argued Jan. 31, 1906.
    Appeal, No. 325, Jan. T., 1905, by defendant, from judgment of C. P. Montgomery Co., Oct. Term, 1904, No. 108, on verdict for plaintiff in case of Catharine B. T. Dunham v. E. Winnie McMichael.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Stewart, JJ.
    Reversed.

      Trespass to recover damages for the alleged alienation of the affections of plaintiff’s husband. Before Weand, J.
    At the trial H. Bellinger Dunham, the son of plaintiff, about eleven years old, was called and questioned as follows:
    “Q. Do you remember the 6th of July, 1904? A. Ido. Q. After the day you had returned from Atlantic City ? A. I think I do. Q. What took place then? A. That girl down there called mother up on the ’phone, and when mother said — ”
    Objected to by defendant.
    “ Q. Did you hear her voice ? A. I did. Q. Do you know her voice? A. I know her voice, and she said who it was. Q. You heard her say who it was ? A. Yes.”
    Mr. Evans: We would like to cross-examine first to see if he did know the voice. The simple fact of somebody making a declaration in the absence would not be evidence.
    The Court: They have a right to see if he knew the voice.
    Cross-examination by Mr. Evans : “ Q. You say you heard her voice? A. Yes, sir. Q. What girl was it? A. It was Winnie McMichael. My mother asked her who it was, and she said Miss McMichael. Q. Just answer my question. Had you heard her voice before that time ? A. Í had. Q. Had you ever met her? A. No. Q. You had never met her? A. I had never seen her before. Q. How then could you know her voice ? A. She called up in the morning.”
    Objected to by defendant.
    The Court: “ Q. Who had an ear to the ’phone ? A. My mother had an ear to the ’phone and mine was right by. Q. You heard everything that was said ? A. Yes, until she sent me out of the room. Q. How could-you hear? How close were you to her? A. I was right up by it, and our ’phone is in the bathroom, and if you shut the door you can hear everything a person says. If they yell you can hear still better, and she was mad and she yelled. Q. She was mad, was she? A. Yes, she was mad. Q. You are sure you heard distinctly everything ? A. Yes, I heard very distinctly. Q. How was it the person who sent the message over the ’phone announced the name ? A. She said ‘ Hello.’ My mother said ‘ Hello, who is it ? ’ She said, ‘ Miss McMichael.’ Q. Your mother asked who it was ? A. Yes. Q. And then the answer came ? A. Yes.”

      The Court: I will admit it for the present. My impression is it is a very doubtful case, but you have a witness here who can be called upon the stand to deny she sent the message. Otherwise I would certainly rule it out. I think you might accept my offer to get the witness on the stand, but if you still object, I will adhere to my first ruling. It cannot be possible that if I would telephone to Philadelphia to Drexels’ to buy 100 shares of stock, and they asked me who it was, and I should say Mr. Larzelere, that they should hold him responsible for it. He would not be required to deny it. They would have to prove it was the person. In this case 'the boy said he never heard the voice of the lady before, and whatever knowledge he had came over the ’phone. I therefore sustain the objection, and rule out the evidence.
    E. Winnie McMichael, sworn, called for cross-examination.
    Mr. Larzelere: “ Q. Do you recall July 8, 1904? A. I think I do. Q. Did you call up Mrs. Dunham on her telephone ? I do not ask you what took place. I merely want to know whether you called her up ? A. I think I did; I am not quite sure. Q. Are you not sure ? A. I am not quite sure whether Mrs. Dunham called me or I called her. Q. But anyhow, you had a conversation with her over the ’phone ? A. I am not sure whether it was on the 8th of July. I have had a conversation with Mrs. Dunham over the telephone. Q. About that time, was it ? A. I could not say. Q. I do not want you to give the conversation, but I just want to fix the time. Was part of the conversation in reference to anything that you said about having been to her minister’s? Was that the conversation ? ■ I do not ask what it was, but just to refer you to the time ? A. I think the conversation that we had, that Mrs. Dunham and I had, that I said I would go to Mrs. Dunham’s minister. Q. And it was also in reference to what had taken place (I do not ask you what it was, just to refer you to it) between you and her husband on New Year’s day at his office? Wasn’t that part of the conversation, too? A. No, I do not think so. Q. You do not think so ? A. No. Q. Didn’t you have any conversation like that over the telephone ? A. About what took place in the office? Q. Yes. A. No, I do not think so. Q. Didn’t you have a conversation over the fact of her husband — wasn’t that part of the conversation ? A. No, I do not think it was. I think it was about Mrs. Dunham coming to my mother, the conversation was. My mother had been very ill over it. Q. Was it July 8? A. I could not say. Q. When was it, then? A. I do not keep any dates. I could not tell just exactly when it was. I remember having a conversation with Mrs. Dunham over the telephone. Q. What time in the day was it? At three o’clock in the afternoon, wasn’t it, about three o’clock in the afternoon? A. It may have been. I do not know. I am not positive of the time. Q. You had a conversation with her? A. I hada conversation with Mrs. Dunham over the telephone, yes. Q. About July 8? A. I could not say just when it was. I do not know. It was in the year, I suppose, of — it was in the last year, 1905, yes. Q. No, not 1905. 1905? A. 1904; yes, 1904. Q. It was in July, wasn’t it? A. I do not know the month. Q. You had the conversation? A. I had the conversation with Mrs. Dunham over the telephone, yes.”
    Mr. Evans: “ Q. You have testified in answer to Mr. Larzelere’s questions that you were in telephone communication with Mrs. Dunham some time in 1904. Will you state a little more fully what the telephone' message or conversation'was about? A. I could not exactly state just what it was about. I remember Mrs. Dunham and I had a sort of a quarrel. She called me some very vile names, and said I was nothing but an Irish Catholic, and that all I deserved was to come and work in her kitchen; if I would come out she would give me a job; and I said I did not mind working for a white person, but I would not work for a nigger or an Indian. That is just what I said.”
    H. Bellinger Dunham, recalled.
    Mr. Larzelere : If the court please, under the admission of the defendant that she was at the telephone, I wish to give the conversation that took place over the telephone.
    Mr. Evans: We object to it, because the identification of the time and place was too indefinite.
    Objection overruled. Defendant excepts. Bill sealed. [2, 3]
    Mr. Larzelere: “ Q. Do you remember a telephone communication to your Mama over the ’phone ? A. Yes. Q. When was that? A. July 8. Q. What year was it? A. 1904. Q. What time in the afternoon was it? A. It was about around three o’clock, about half-past three. Q. Did you hear the conversation ? A. Yes. Q. Will you just tell what you heard pass over the ’phone between your mother and Miss McMichael ? A. My mother said, ‘ Hello.’ Then Winnie McMichael said, ‘Hello.’ And my mother said, ‘Who is it?’ And Winnie McMichael said, ‘ Miss McMichael.’ And Winnie McMichael was mad, because she yelled- She says, ‘ So you went to Atlantic City, did you?’ My mother said, ‘Yes, I went with my husband, not with a married man, like you went and stayed two days.’ And then Winnie said — then my mother said, ‘ And you went to New York and stayed overnight.’ Then Winnie said, ‘You are only jealous,’ and then Winnie said, ‘ Understand, I could have separated you in January, and I will do it yet.’ Q. Then what happened to you ? A. My mother told me to go out of the bathroom. 'Q. That is all that you heard? A. Yes. Q. The conversation was still going on, was it ? A. Oh, yes ! My mother talked for about fifteen minutes afterwards.
    Joseph B. Thomas was asked this question:
    “ Q. Are you acquainted with the circumstances of-Mr. Dun-ham and what they were at the time he abandoned his wife ? A. Yes, sir.”
    Objected to as immaterial.
    The Court: I suppose the object is to show he was abundantly able to support her in a certain way and that support has ceased. For the present the objection is overruled.
    Defendant excepts. Bill sealed.
    “ Q. In what way do you know the means of the defendant on the 14th of August last year — I mean of Mr. Dunham ? A. As trustee for him. Q. You are trustee of an estate from which he receives an income? A. An income of about $2,125 to $2,175, varying between those two points, a year, net income. Q. That he has without working for at all ? A. Without working at all. Q. What was he engaged in up to that time ? A. He was a broker, selling bonds and general investments, general securities. Q. Do you know at about what rate they were living in their circumstances out at their house ? A. I know by statements his wife made in his presence, and he acquiesced in.”

      Objected, to by defendant.
    “ Q. Aside from any statement made by him, from the general appearance of the way they lived, how much in your judgment did they spend? A. I should say fairly between $>6,000 and $>8,000. Q. A year? A. Yes, sir. Q. How many servants did they keep? A. On an average about three.”
    5. The court below erred in sustaining the objection to the testimony of Joseph B. Thomas. The question, objection and exception are as follows :
    “ Q. Your sister, Mrs. Dunham, has a separate estate of her own, has she not ? ”
    Objected to by plaintiff.
    The Court: That would not make any difference. Objection sustained. Offer overruled.
    Defendant excepts. Bill sealed. [5]
    Verdict and judgment for plaintiff for 110,000. Defendant appealed.

      Errors assigned were (2, 3, 5) rulings on evidence, quoting the bill of exceptions.

      M. J. O'Callaghan, with him Evans & Dettra, for appellant.
    —A telephone conversation is inadmissible to establish admission of one of the parties where it appears that the witness was not acquainted with the party’s voice, and could not identify it: Swing v. Walker, 27 Pa. Superior Ct. 366.

      N. H. Larzelere, with him T. Foster Thomas, for appellee.
    Weak identification of the speaker does not affect the admissibility of the evidence, but only its weight: Southwark Nat. Bank v. Smith, 7 Pa. Dist. Rep. 182; Wolfe v. Mo. Pac. Ry. Co., 97 Mo. 473 (11 S. W. Repr. 49); Globe Printing Co. v. Stahl, 23 Mo. App. 451; Miles v. Andrews, 153 Ill. 262 (38 N. E. Repr. 644).
    March 19, 1906:
   Opinion by

Mr. Justice Stewart,

On the trial of the case, the witness, H. Bellinger Dunham, son of the plaintiff, a lad of about eleven years, called on behalf of plaintiff, was permitted to testify to a conversation carried on over the telephone between the plaintiff and another representing himself or herself to be the defendant in the case. The effort was to prove by this witness declarations of defendant in the nature of admissions. When it was first attempted to introduce this evidence, the witness had so far proceeded as to give the date of the occurrence, 8th day of July next preceding — a date first suggested by the examining counsel — to describe the conversation as an angry one, and to say that the person conversing with plaintiff was this defendant, because he knew her voice, and heard her say over the ’phone who she was. Upon being inquired of by defendant’s counsel, the witness admitted that he did not know the defendant, had never seen her, and had never heard her voice before, unless it was she who had earlier in the same day attempted to call up the plaintiff on the ’phone. Under objection that the identification of defendant was insufficient, the witness was withdrawn. With a view to repeating the effort to prove the conversation, the defendant was called to testify as under cross-examination, and was asked whether she had called up the plaintiff over the ’phone on July 8, 1904. She admitted one conversation with plaintiff over the ’phone, but asserted her inability to fix the date when it occurred, hour, day or month; and when asked whether the conversation did not relate to certain specific matters suggested by counsel, denied that it did so relate, and stated what the subject of the conversation was. The learned trial judge being of opinion that defendant’s admission sufficiently connected her with the conversation, admitted against objection the witness to testify to the details of the conversation. This ruling is the subject of the second assignment of error.

It is first of all to be observed that the identifying circumstances relied on, are to be found exclusively in the defendant’s testimony; there are none in the testimony of the witness by whom it was proposed to prove the conversation, and no other witness refers to the occurrence even remotely. Again, it is to be remembered that in passing upon the question of identification, the testimony of the witness Dunham, when called to the stand the second time, was not a subject of consideration. It was not a question how far that fitted in with the statements made by defendant when under cross-examination; the real question was as to the admissibility of this particular evidence, and this was to be met and passed upon with the offer of the evidence, and in the light of what had preceded. Defendant had the right to have it excluded at that point in the trial, if then the evidence was not sufficient to carry it to the jury. The determining question was, — did the admissions contained in the defendant’s testimony so far supplement the testimony of Dunham when first called to the stand, as to make his later testimony, with respect to the conversation he heard, admissible ? It was just as though the offer had been to show what Dunham first testified to, to be followed by certain specified admissions of the defendant. And in this inquiry it is important to remember that while defendant was called as an adverse party, she was called only for the purpose of establishing affirmatively the necessary supplemental facts. She was under no burden to acquit herself of or disprove in any degree the conversation imputed to her. No unfavorable or prejudicial inferences are to be derived from any failure on her part to state facts and circumstances which would negative the claim made against her. It was not as though the conversation had been already testified to and she had taken the stand to contradict or explain it. Oqly so much of her testimony as was affirmative in support of plaintiff’s contention could be considered. Her admissions were, first, that at one time or other during the year 1904 she had conversed with plaintiff over the ’phone ; and, second, that the conversation was an angry one. The first could have no identifying significance except as- it also was supplemented by evidence that could come only from the plaintiff herself, that she had but the one ’phone conversation with defendant during that year. To make the second an identifying circumstance, it was just as necessary that it should be supplemented in the same way. The inquiry was not narrowed appreciably by showing that the conversation was an angry one, for it is not to be supposed that any conversation between these parties would be pleasant and agreeable; to a reasonable certainty it would be animated and most likely vituperative on one side or the other, probably on both. Whether one or many, the same feeling and temper would be displayed. The fact that it was angry, as Dunham testified, is the only point of agreement between the two witnesses.' That this circumstance would be entitled to significance greater or less depending upon other facts in the case, we concede, but with no other support than the fact that a ’phone conversation had occurred some time within a year between the parties, we cannot agree that it was a sufficient identification to open the way for the admission of the evidence. It is no answer to say that this Mew of the matter imposes upon the plaintiff a burden she could not in the nature of things meet, that she was incompetent as a witness, and therefore it was out of her power to prove that she had had but one conversation with the defendant over the ’phone. Without here discussing the competency of the plaintiff as a witness, but for present purposes assuming her incompetency, it was a circumstance wholly aside from the immediate question before the court. Her disability might have been to her disadvantage of course in this particular case; but rules of evidence are not made to fit particular cases, and they are not to be relaxed to avoid an apparent hardship in any case. This sort of hardship is frequently encountered, but courts are powerless to relieve it. When the offer to show the conversation was first made, it was rejected because the identification was insufficient; it was admitted later only on the ground that defendant had admitted to a conversation ; and yet an examination of the testimony of Dunham will show that the conversation she admitted was not at all that which Dunham testified to. It was a virtual denial on her part that she had had any such conversation as he spoke of, and being uncontradicted, instead of her testimony supporting the offer, the effect of it was just the opposite. True, the plaintiff was not bound by her answers, but this simply means that plaintiff was at liberty to contradict her if she could; no evidence was offered by way of contradiction, with the result the same evidence that established the fact of a conversation, established the other fact that defendant did not have the conversation that it was proposed to prove. We are of opinion that the objection to Dunham’s testimony ought to have prevailed. It is a well-recognized rule of evidence, that testimony may be rejected which appears to be founded on data so scanty, that the witnesses’ alleged inferences from them may be pronounced either absurd or extreme. The claim of the witness that he knew one of the parties of the conversation was the defendant is absurd on its face; the inference from all the proved facts that defendant was one of the parties to it, would be too extreme to entitle it to acceptance. For the reasons we have given, this assignment of error must be sustained.

The plaintiff herself was called and sworn as a witnesses under objection that because of the peculiar character of the case she would be testifying against her husband. The sixth assignment relates to this ruling of the court. When a point was reached in the examination of the witness that introduced the witness’s husband, an objection was interposed and sustained. What preceded was not only without significance, incapable of working prejudice to the defendant, but should be regarded as striken out, since plaintiff’s counsel so requested and the request was not opposed by the other side. The record does not show that it was actually stricken out, and it does not appear that the jury was directed to disregard it; but it was so manifestly harmless that even if admissible, a question we are not called upon to decide, it would not of itself call for reversal.

The fifth assignment of error must be sustained. The plaintiff had shown as a basis of damage the probable annual expenditure required for the support of plaintiff’s family, in the style in which they had been living, before the cause of action arose. This of course was admissible only on the theory that such expenditures had been met by the husband, whose support it was alleged had been withdrawn. It was proposed to show in reply that the plaintiff had an income of her own, that it had been applied toward the cost of the family’s living, and that the actual loss of support was the difference between the total and the plaintiff’s contribution. The evidence should have been admitted. The total cost .of the living would certainly be an unfair measure of damages, if in point of fact, the plaintiff herself had contributed out of her own funds toward these expenses. The other assignments of error call for no comment. They are without merit and are overruled.

Judgment reversed and a venire facias de novo awarded.


author: Per Curiam,

text:
    Dunham, Appellant, v. McMichael.
    Argued Jan. 31, 1906.
    Appeal No. 364, Jan. T., 1905, by plaintiff, from order of C. P. Montgomery Co., Oct. T., 1904, No. 108, quashing writ of capias in case of Catharine B. T. Dunham v. E. Winnie McMichael.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Stewart, JJ.
    Appeal dismissed.

      N. H. Larzelere, with him T. Foster Thomas, for appellant.

      Montgomery Evans, with him John M. Dettra and M. J. O’Callaghan, for appellee.
    March 19, 1906:
   Per Curiam,

The judgment upon which the questions in this appeal arise, having been reversed in Dunham v. McMichael, ante, p. 485, the appeal itself has no longer any importance, and it is accordingly dismissed.


text:
    Meigs, Appellant, v. Tunnicliffe.

      Mortgage — Release of portion of mortgaged, premises — Discharge of mortgagee.

    Where a mortgagee after a conveyance of the mortgaged premises by the mortgagor, releases from the lien of the mortgage a portion of the premises without the knowledge or consent of the mortgagor, the latter is released from any loss to the mortgagee resulting from a deficiency in the proceeds of a subsequent sale in foreclosure proceedings. In such a case it is immaterial that the deed of the mortgagor of which the mortgagee had no knowledge, was not made subject to the mortgage, and contained a covenant against incumbrances.
    Argued Feb. 6, 1906.
    Appeal, No. 365, Jan. T., 1905, by plaintiff, from judgment of C. P. Delaware Co., March T.,' 1903, No. 100, on verdict for defendant in case of Arthur Y. Meigs v. Sarah Tunnicliffe, nee Sarah Brierley.
    Before Mitchell, C. J., Fell, Brown, Elkin and Stewart, JJ.
    Affirmed.

      Issue to determine the validity of a judgment. Before Johnson, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1--10) various instructions.

      John G. Johnson, with him George B. Lindsay and William B. Harvey, for appellant.
    The mortgagor was not released: Schrack v. Shriner, 100 Pa. 451; Turner v. Flenniken, 164 Pa. 469; Hart v. Anderson, 198 Pa. 558; In re McGill, 6 Pa. 504; Ziegler v. Long, 2 Watts, 205.

      W. B. Broomall, with him A. D. MacDade, for appellee,
    cited: Robins v. Mayer, 191 Pa. 163; Savings Bank v. Thayer, 136 Mass. 459.
    March 19, 1906:
   Opinion by

Mr. Justice Stewart,

Dr. Meigs, here the appellant, was obligee in a certain bond of the sum of $5,500 given by Sarah Brierley, now Sarah Tunnicliffe, the appellee. The bond was secured by a mortgage executed by Miss Brierley upon certain real estate owned by her in the city of Chester, which she subsequently conveyed to her sister, Mrs. Cooper. At the instance and the request of the latter, after she became owner of the property, Dr. Meigs released a certain part of the mortgaged premises. Later on he foreclosed his mortgage ; the unreleased premises selling for $3,550. With a view to collect from Miss Brierley, the mortgagor, the balance of the debt, he caused to be entered a judgment against her on her bond containing a confession. Upon the defendant’s application, in which she represented that the mortgagee, without her knowledge or consent, had released from the lien of the mortgage a certain part of the premises included therein, and that in consequence she was discharged from further liability for the debt, the court opened the judgment for purposes of defense, and awarded an issue to determine the amount remaining unpaid on the mortgage, and whether the defendant had been released or discharged from liability thereon by the conduct of the plaintiff. It was agreed that the amount due and unpaid was $2,802.26; and but two questions of fact were submitted to the jury for their determination : first, did the mortgagee, Dr. Meigs, know when he executed a release of part of the mortgaged premises, that the mortgagor was no longer the owner of the mortgaged premises, but had conveyed the same to Mrs. Cooper? and, second, did the said mortgagor in any way give her consent to, or acquiesce in, the release ? There could be no dispute with respect to the first of these questions, as the fact of a previous conveyance of the property to Mrs. Cooper was set out in the release. The second was the vital question in the case. The jury, upon what unquestionably was sufficient evidence, found both issues for the defendant, and under the instruction of the court to the effect that if the release was executed without the knowledge and consent of the mortgagor, it operated in law to discharge the defendant from liability, they rendered a verdict accordingly. The assignments of error, thirteen in number, are but so many different ways of challenging the correctness of the court’s instruction, and therefore they may all be considered together.

The question resolves itself into one of duty. What duty, if any, did the mortgagor owe to the mortgagee ? As she was out of possession, she could do nothing to the prejudice of the mortgagee; and therefore it may be safely affirmed that she owed no duty to him with respect to the mortgage. -What, if any, did the mortgagee owe to the mortgagor ? He was her creditor, and held as collateral for the debt the mortgage she had given upon her real estate. She had conveyed the real estate to another, but in the hands of her grantee it was still collateral for the debt. It was in the power of the mortgagee to impair or utterly destroy the security by releasing part or all of the property bond. Such action might or might not be to the injury of the mortgagor, depending wholly upon the understanding or agreement between the mortgagor and her grantee, with respect to the liability for the mortgaged debt as between themselves. When a mortgagee releases property from the lien and operation of the mortgage, it is his own act, for his own purposes, and determined by his own pleasure. Since by doing so he may work serious injury to the mortgagor, the law requires that he exercise caution. He dare not be indifferent to the rights of the mortgagor except at his own cost. The mortgage is his to hold or dispose of as suits his pleasure; but it is not his to reduce or impair at the expense of the mortgagor. It is not necessary to refine on any established equitable principles in order to deduce a duty resting upon a mortgagee, under such a state of facts, to withhold his hand from any release until he shall have first inquired of the mortgagor whether his interest in the mortgage would be affected by such release. The same principle that charges the holder of a collateral with loss in connection therewith, where such loss results from his own want of care, both suggests and commands it. What we have said does not conflict in the least with the principle that saves harmless the earlier incumbrancer who releases part or all of the mortgaged premises to the prejudice of a junior incumbrancer, except as the latter has imposed upon him a duty to observe his equity by giving him notice of it. Between the earlier and junior incumbrancer there is no privity; they are strangers, neither owing any duty to the other until notice is given; until then the former is not supposed to know of the existence of the latter. To impose upon the earlier the duty o f investigating to see whether his act in releasing would prejudice the latter, as said in Schrack v. Shriner, 100 Pa. 451, “ would compel the senior to do for the holder of the junior security, or a subsequent vendee, what in equity and good conscience he ought to do for himself.” In our case, the question is not between strangers, but between the pledgor and the holder of the pledged security. In the case of incumbrancers, because they are strangers, except as the junior moves to restrain the earlier from releasing the premises, the earlier may do what he pleases with his security; in our case, except as the mortgagor allows it, the mortgagee can do nothing by way of impairment. Therefore it is that the duty of inquiry is not with the mortgagor, who is not the acting party, but with the mortgagee, who to accomplish his own ends proposes to do something which may imperil the property of another in his keeping. If he attempt it without the consent of the mortgagor and to the latter’s prejudice, on every principle of justice and equity, he should be held responsible for the consequence.

We take the fact to be as the jury found it, that the mortgagee here made no inquiry of the mortgagor, and that the release was given withoqt her knowledge or consent. That the release operated to deprive her of a fund upon which she had a right to rely for the payment of the debt, was a fact which, while not expressly found by the jury, seems to have been conceded, since the facts in connection with the mortgage and the subsequent conveyance to Mrs. Cooper, were all recited in the charge to the jury, as the basis of the court’s conclusions of law, and no exception was taken thereto. Assuming, then, that a duty rested upon Dr. Meigs to inquire of Miss Brierley before executing the release, and that he failed in this regard, was there anything shown that would excuse his failure ? It was argued with much earnestness that inasmuch as the mortgaged premises were conveyed by the mortgagor to Mrs. Cooper, not under and subject to the mortgage,- but by deed covenanting against incumbances, the mortgagee had a right to assume that the transaction was just as it purported to be, and that the' mortgagor had relinquished the mortgage as a means of satisfying the debt. The argument itself is based on an unwarranted assumption of fact. It nowhere appears in the evidence that Dr. Meigs knew anything of the covenants in the deed from Miss Brierley to Mrs. Cooper when he executed the release. The record of the deed was not notice to him ; it could be only to one bound to search for it: Maul v. Rider, 59 Pa. 167. There is only one aspect in which he could be heard to assert anything with respect to the conveyance and its convenants. Had he known it, acted upon it, and thereby been misled into executing the release, it might be argued with some, we do not say convincing, force, that in equity the loss under such circumstances should fall upon the mortgagor. But none of these features appear- in the case; and it is therefore of no consequence as between the parties to this contention what covenants the deed to Mrs. Cooper contained. That the transaction between Miss Brierley and Mrs. Cooper, whatever the legal effect of the papers with respect to the mortgage, contemplated the mortgage as a continuing security for the benefit of the former, is a fact in the case. The appellant could have learned this fact had he made inquiry of the mortgagor. He made no such inquiry and therefore .by the act of releasing the mortgaged premises he became liable for whatever injury resulted therefrom to the mortgagor.

The exceptions are overruled and the judgment affirmed.


author: Mr. Justice Elkin,

text:
    Lingle v. Scranton Railway Company, Appellant.

      Negligence — Street railways — Alighting from car — Contradictory evidence— Charge.

    In an accident case where the plaintiff’s testimony, in effect that the car in which she was riding stopped before she proceeded to alight, is corroborated by another witness, but is contradicted by the conductor and three passengers, it is reversible error for the court to submit the evidence of the plaintiff to the jury with apparent approval and in the most favorable light, while presenting that of the defendant in such a manner as to cast doubt upon its accuracy and correctness.
    Where a point submitted contains an abstract proposition of law upon an assumed fact, it is for the court to determine the legal truth of the conclusion from the assumed fact, and the point should be affirmed or refused without qualification.
    Where the testimony of witnesses is clear and unequivocal it is error for the court to qualify the affirmance of a point by saying "if you believe any of the witnesses who did so testify, believe that they know what they are talking about.”
    Argued Feb. 19, 1906.
    Appeal, No. 139, Jan. T., 1905, by defendant, from judgment of G. P. Lackawanna Co., Sept. T., 1903, No. 934, on verdict for plaintiff in case of Daisy E.
    Lingle v. Scranton Railway Company.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Newcomb, J.
    The opinion of the Supreme Court states the case.
    Plaintiff presented, inter alia, the following point:
    14. Of course if you believe the testimony of Doctor Brewster, Mr. Donlin, Mr. Piper, the motorman and conductor and the other witnesses to the accident called by the defendant, then a case is presented of a passenger undertaking to leave a moving car without waiting for it to stop and she was plainly guilty of contributory negligence and of course cannot recover. Answer: I cannot affirm that point without qualifying it in this way: The point assumes that the motorman testified to the circumstances of the accident and so far as the “ other witnesses ” to the accident are concerned, the point does not specify them. I do not remember that the motorman testified to the circumstances of the accident as I understand the term “ circumstances of the accident.” I only affirm it with this qualification, that if you believe these witnesses that are specified and the other witnesses or any of them on the part of the defendant who testified that this lady got off of the car while it was in motion, if you believe any of the witnesses who did so testify, believe that they know what they are talking about, are speaking from accurate knowledge, then of course it would warrant you in so finding because the plaintiff could not in that state of evidence recover and with that qualification the point is affirmed. [12]
    Verdict and judgment for plaintiff for $1,775. Defendant appealed.

      Errors assigned among others were (8) that the charge as a whole was unfair and biased, quoting the whole charge and (12) answer to point as above, quoting it.

      Everett Warren, with him Edward N. Willard, Henry A. Knapp and Charles P. O’Malley, for appellant.
    In his general charge the trial judge called the attention of the jury to the theory and testimony of the plaintiff herself and presented it in its most favorable light, without one word of comment as to her credibility as affected by her direct pecuniary interest in the result. This was error: Clark v. Union Traction Co., 210 Pa. 636; Reber v. Herring, 115 Pa. 599; Webb v. Lees, 149 Pa. 13; Holden v. Penna. R. R. Co., 169 Pa. 1; Fineberg v. Ry. Co., 182 Pa. 97; Neff v. Traction Co., 192 Pa. 501.

      Samuel B. Price, with him John Bunn and Arthur Bunn, for appellee.
    March 19, 1906:
   Opinion by

Mr. Justice Elkin,

This belongs to a class of cases wherein^t is the duty of the trial judge to give to the jury definite, exact and concise statements of the law and the facts in order that intelligent consideration may be given and correct conclusion reached. The plaintiff’s cases depended upon her saying that the car stopped before she proceeded to alight. She did so testify, and was corroborated by a companion with her. The defendant, however, showed by the testimony of the conductor in charge of the car, the motorman, and by Dr. Brewster, Mr. Donlin and Mr. Piper, passengers on the car, that plaintiff' attempted to get off while it was moving, and that the accident resulted from her own negligence. This was the vital and controlling question in the case. Both sides were entitled to have the facts of their case as shown by the testimony fairly and impartially presented to the jury. The appellant contends that the charge as a whole was not a fair and impartial presentation of the case to the jury in that undue prominence was given to the testimony of appellee, while that of appellant was referred to in such a manner as to belittle the witnesses and discredit their testimony. In reviewing the defendant’s testimony the court pointed out to the jury certain statements which had been made by these witnesses which were at variance with what seemed to the court to be the undisputed testimony in the case, but which in fact did not bear directly upon the vital question at issue, and stated that in view of this seeming conflict in the testimony, the witnesses may not have had an accurate knowledge of the circumstances connected with the accident. For instance, in reviewing the testimony of Mr. Piper and Mr. Donlin, stress was laid on the fact that as other witnesses testified positively that the signal had not been given, and inasmuch as these witnesses did not hear it, they may not have had a clear or accurate recollection of just how the accident occurred, and their testimony should be carefully scrutinized to ascertain whether or not their recollection was accurate. Remarks of a similar character were made in commenting upon other testimony of appellant’s witnesses.

There could be no objection to the court reviewing the testimony on both sides, but when this is done it must be impartially and fairly'commented on without giving undue prominence to either side, and without presenting an argument on one side of the case. In Reichenbach v. Ruddach, 127 Pa. 564, Mr. Justice Green, said: “ If the testimony upon one side of a controverted question of fact is made prominent and conspicuous in the charge, common fairness requires that equal prominence should be given to opposing testimony having a contrary tendency.”

As we read the charge, this rule was not observed. The evidence of the plaintiff was submitted to the jury with apparent approval and in the most favorable light, while that of the defendant was presented in such a manner as to cast doubt upon its accuracy and correctness. This would necessarily create doubts in the minds of the jurors as to the credibility of defendant’s witnesses.

In Fineburg v. Railway Company, 182 Pa. 97, Mr. Justice Williams said: “If the charge is in the nature of an argument on one side, or is inadequate in its treatment of the questions submitted, such defect will be ground for reversal.” In Heydrick v. Hutchinson, 165 Pa. 208, it was held that a charge whose tendency as a whole is to belittle and prejudice one side, and which is not in expression and tone a judicial presentation of the case, is error. To the same effect is Tietz v. Philadelphia Traction Company, 169 Pa. 516; Philadelphia Trust, etc., Company v. Philadelphia, etc., R. R. Co., 177 Pa. 38.

The appellant further contends that its fourteenth point should have been affirmed without qualification, and this is the subject of the twelfth assignment of error. The answer of the learned court to this point casts doubt upon the credibility of the witnesses by suggesting to the jury that the point was a correct statement of the law “ if you believe any of the witnesses who did so testify, believe that they know what they are talking about.” There is nothing in the testimony of these witnesses to warrant such an insinuation. Their testimony was clear and unequivocal, and if the jury believed what they said there could be no recovery. It is true the credibility of witnesses is for the jury, whose duty it is to weigh and consider the testimony of each witness and decide for themselves the points in controversy and whether the witness is to be believed. The point, however, assumed just this state of affairs, and had embodied in it the qualification suggested by the court. The point stated that if the jury believed the testimony of these witnesses, the plaintiff could not recover. Where a point submitted contains an abstract proposition of law upon an assumed fact, it is for the court to determine the legal truth of the conclusion from the assumed fact, and the point should be affirmed or refused without qualification : Citizens’ Passenger Railway Company v. Ketcham, 122 Pa. 228. Defendant’s point should have been affirmed without qualification. For these and other reasons unnecessary to be commented on, we think the learned court was in error.

Judgment reversed and a venire facias de novo awarded.


author: Mr. Justice Mestrezat,

text:
    Wheeler Avenue Sewer.

      Sewers — Ordinance—Viewers—Damages.
    Where a city ordinance for the construction of a sewer fixes the proportions of the costs of construction which are to be paid respectively by the city and the abutting landowners, and the ordinance is made part of the petition for the appointment of viewers, and the viewers in assessing the damages name the exact amount set forth in the ordinance even to the fraction of dollars, the report of the viewers should be set aside. In such a ease the parties in interest are entitled to have the judgment of the viewers as to the damages and benefits and the cost of the sewer, and are not compelled to accept the judgment of the city engineer, or of the city councils on the subject.
    A provision in a city ordinance fixing the cost of a sewer and the amount of benefits to be assessed against the city and the property owners respectively, does not render the whole ordinance invalid. Such a provision may be treated as surplusage.
    Argued Feb. 19, 1906.
    Appeal, No. 210, Jan. T., 1905, by George Frank Fergusson Gadsden et al., Trustees, from order of G. P. Lackawanna Co., March T., 1904, No. 735, dismissing exceptions and confirming report of viewers In re Sewer on Wheeler Avenue, City of Scranton.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Appeal from report of viewers. Before Kelly, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in dismissing exceptions to report of viewers.

      William W. Lathrope and Francis William Bawle, for appellants:
    It is respectfully submitted that either (1) the municipality exceeded its powers in passing such, an ordinance, and therefore the ordinance is invalid; or (2) that if the ordinance is valid, the viewers subsequently appointed under the ordinance and act of assembly were not left free and untrammeled in reaching their conclusions and their findings, and the assessments placed upon the appellants are not binding on them: Scranton Sewer, 218 Pa. 4; Fell v. Philadelphia, 81 Pa. 58; Ferguson’s App., 159 Pa. 39; Twenty-eighth Street Sewer, 158 Pa. 464; Traver’s App., 152 Pa. 129.

      David J. Davis, city solicitor, with him H. R. Van Deusen, assistant city solicitor, for appellee,
    cited: Park Avenue Sewers, 169 Pa. 433.
    March 19, 1906:
   Opinion by

Mr. Justice Mestrezat,

This was á proceeding under the Act of May 16, 1891, P. L. 75, 2 Purd. 1399, to ascertain the costs and expenses and also the benefits and damages by reason of the construction of a sewer on Wheeler avenue, between Vine and Olive streets, in the city of Scranton, under an ordinance of city councils.

The councils of the city of Scranton passed an ordinance, approved December 23, 1903, authorizing the construction of a sewer in Wheeler avenue from Vine street to Olive' street. Section 2 of the ordinance is as follows: “ For the purpose of paying for the construction of the said sewer there is hereby appropriated the sum of $3,451.38, or as much thereof as may be necessary; of said sum of appropriation $961.52 shall be charged to the General City Sewer Loan Account and $2,489.86 shall be derived from assessments on abutting property according to benefits to be ascertained as hereinafter provided.” The ordinance directed the city solicitor to apply to the court of common pleas “ to appoint viewers whose duty it shall be to assess damages, costs and expenses of such sewer according to benefits in accordance with the act of May 26, 1891, and the city solicitor is hereby directed to request the court to instruct the said viewers to complete and return the said assessment within ten days from the date of their appointment.”

Two petitions were presented to the court below: one praying for the appointment of viewers “to assess the damages, costs and expenses of such sewer system according to the benefits, in accordance with the act of assembly in such case made and provided;” and the other praying for the appointment of “three discreet .and disinterested freeholders, to ascertain the damages to or suffered by any person or property by reason.of the construction of said sewer system, in accordance with the above mentioned ordinance, and also to assess properties benefited, if sufficient benefits can be found, in the manner and subject to the provisions of an act of assembly,” approved May 16, 1891, and its supplements.

The viewers reported that they had ascertained and determined the costs and expenses of building the sewer would be $3,451.88 ; that they had assessed the city of Scranton $961.52 as her proportion of the costs and expenses of constructing the sewer; and that they had assessed the sum of $2,489.86 as the costs and expenses of building the sewer “upon the abutting properties according to the benefits which we ascertained would accrue to said properties from the construction thereof.” All the property on each side of the street in which the sewer is laid belongs to the estate of Henry Beckett, deceased, and is laid out in lots. All the lots on one side and three of the lots on the other side of the street were assessed with benefits.

The trustees under the last will and testament of Henry Beckett' filed numerous exceptions to the report, all of which were dismissed by the court below, and the report of the viewers was confirmed.

The second section of the act of 1891 requires the viewers to examine the property, to hear all the interested parties and their witnesses and to estimate and determine the damages for propei'ty taken, injured or destroyed and to whom the same is payable, to estimate and determine the benefits which shall accrue to any property by reason of the improvement and to make report to the court “ showing the damages and benefits allowed and assessed in each case, and file therewith a plan showing the improvement, the properties taken, injured or destroyed, and the properties benefitted thereby.” The 8th section of the act provides that the costs and expenses of a sewer or other improvement shall be ascertained and determined by proceedings similar to those provided in the act in case of property taken, injured or destroyed.

The appellants in their assignments allege that the court below erred in confirming tbe report of viewers and assign as reasons that the ordinance providing for the construction of the sewer and proceedings in court taken in pursuance thereof were invalid and defective, that the ordinance was unwarranted and illegal because it fixed the exact amount that should be derived from assessments on abutting property, and that “ the powers given to these viewers, in pursuance of the petition are restricted and are not the powers vested in viewers under the law.” It is claimed that the viewers did not ascertain and determine the costs and expenses of building the sewer, nor the proportion of costs and expenses to be paid by the city, nor the sum to be assessed against the owners of the abutting properties as was their duty under the act of assembly, but in each case adopted the estimate made by the city engineer which was included in the ordinance and which became a part of the petitions presented by the city for the appointment of viewers.

It will be observed that the statute provides the method by which damages and benefits must be assessed and the costs and expenses must be determined in cases of municipal improvements. The proceedings may be commenced on the petition of the municipality or of any interested party. But the viewers, appointed by the court for the purpose, are alone invested with the authority to examine the property and estimate and determine the damages and the benefits and assess the cost and expense of the improvement. This is clearly pointed out in the statute and its supplements under which these proceedings were had. Instead of pursuing the statutory course of procedure, the city apparently ignored it, and by the second section of the ordinance providing for the construction of the sewer fixed the proportions of the costs of construction which were to be paid respectively by the city and the Beckett estate, the owner of all the property abutting on the street in which the sewer was to be laid. This action of councils was in disregard of the statute, was without any authority whatever, and should have had no binding effect upon the viewers and could have none upon the city or the owner of the abutting property. Notwithstanding the unwarranted action of the councils, the city solicitor made the ordinance a part of the petitions which he presented to court for the appointment of viewers, and thus the error was continued in the proceedings until the viewers were appointed, in the language of the court’s order, “ as within prayed for.”

In pursuance of the order made on these petitions, the viewers reported to the court below that they had determined the costs and expenses of the sewer, and had assessed the city and the owner of the abutting property with their respective proportions of the expense. The amount fixed by the viewers was in each instance the exact sum named in the city ordinance and was as follows : Costs of sewer, $3,451.38; assessed against the city, $961.52; and assessed as benefits against the owner of the abutting property, $2,489.86. The fractional amounts of the assessments and the fact that they correspond exactly with the sums named in the ordinance compel the conviction that the different amounts mentioned in the ordinance were submitted to the viewers and that they adopted them in performing the duties of their appointment, instead of relying on their own judgment, based on the evidence and the facts, in making the assessments. That is the only reasonable conclusion deducible from all the facts in the case, and is so apparent that it needs no argument to sustain it. It is incredible in the absence of evidence to the contrary that any viewers could view the premises in question and without knowledge of the three sums named in the ordinance and without being controlled thereby assess the exact sum in dollars and fractions thereof, as the cost of the improvement, amounting to thousands of dollars, and divide that sum with like exactness into two unequal proportions as the amounts to be paid by the city and the Beckett estate. In fact it is conceded in the appellee’s printed argument that as to the cost of the improvement the viewers adopted the figures named by the city engineer and inserted in the ordinance. It is there said: “ It must be remembered that when the viewers made their report the sewer had not yet been constructed, and the only basis for ascertaining the cost of the work was an estimate by those familiar with such construction, and the viewers wisely took the estimate of a skilled expert, the chief engineer.”

The viewers should, if necessary, have called before them such witnesses as would have enabled them to assess the damages and benefits and determine the cost of the improvement. This they had the authority, and it was their duty, to do. The interested parties had the right to have the judgment of the viewers as to the damages and benefits and the cost of the sewer, and were not compelled to accept the judgment of the city engineer or of the city councils. The jury having failed to perform their duty in this respect as required by the statute, the court below should have set aside their report and recommitted the matter to the same or other viewers.

We do not regard the entire oi’dinance as invalid. That part of the second section wherein the attempt is made to fix the amounts of the assessments was enacted without authority and cannot be sustained. It may be treated as surplusage. That part of the section and the direction to the city solicitor contained in the third section should have been omitted from the ordinance, but they do not invalidate it. The ordinance is complete without those parts and they are not so connected with the other parts as to render the whole ordinance invalid. After eliminating them, the remaining portions contain the essentials of a complete ordinance for the purpose for which it was enacted, and must therefore be sustained: 21 Am. & Eng. Ency. of Law (2d ed.), 993.

As the case goes back for further proceedings, the court below should see that they are taken in strict accordance with the provisions of the statutes. This will avoid the irregularities complained of in the appellants’ exceptions, and which are not assigned for error on this appeal.

The decree of the court below confirming the report of viewers is reversed, the proceedings subsequent to the appointment of viewers are set aside at the costs of the city, and a procedendo is awarded.