text:
    Naugle, Appellant, v. Nescopeck Township.

      Arbitration — Bradford county reference Act of April 6, 1869, P. L. 725 — Power of referee.

    1. Under the Bradford county reference Act of April 6, 1869, P. L. • 725, a referee has the power to enter a nonsuit in a proper case.

      Bridges — Township—Fords—Nuisance.
    2. A township is bound to maintain a ford in good condition as a part of a public road, but it is not bound to construct a bridge instead of maintaining a ford at a particular place so that some particular landowner may have his property benefited and enhanced in value by affording him access to it at times of high water. In such a case the fact that such landowner uses the road more frequently than others is immaterial, inasmuch as his injury or inconvenience, although greater in degree, is the same in kind as that of the general public.
    Argued April 13, 1909.
    Appeal, No. 381, Jan. T., 1908, by plaintiff, from order of C. P. Luzerne Co., June T., 1906, No. 51, confirming report of referee in case of William A. Naugle v. Nescopeck Township.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages to land.
    The case was referred to G. J. Clark, Esq., who reported as follows:
    At the close of plaintiff’s evidence the defendant moved for a compulsory nonsuit for reasons given, which reasons are attached to the testimony. After careful consideration the referee is of the opinion that the motion should prevail. Under the Bradford county reference Act of April 6, 1869, P. L. 725, a trial before a referee is conducted in the same manner as a trial by the court with a jury, and it' would be a fair general statement to say that the referee has all the powers of a judge in such trial, including the power to enter nonsuit in a proper case. If the plaintiff on his own evidence is not entitled to recover he ought not to ask the. defendant to go to the expense of producing witnesses and trying a case already lost. If the referee state findings of fact and conclusions of law upon the plaintiff’s own showing the plaintiff certainly ought not to complain of not having a full trial. Holding, therefore, that a referee has the power, in a proper case, to enter a nonsuit, I have carefully examined the evidence and have stated' findings of facts and conclusions of law, the controlling conclusion being that the plaintiff is not entitled to recover in this action.
    This is an action of trespass by William A. Naugle against the township of Nescopeck by reason of the township authorities failing to keep a public road in proper condition so that Naugle could at all times pass and repass along the same with the products of his mills and farm. By reason of being unable to travel this road Naugle claims he was greatly damaged. We may concede at once that had the creek been bridged and the road kept in good condition the Naugle property would have been much more desirable as a business place and farm and consequently much more valuable. But when we attempt to charge this loss on the township several important questions present themselves. Is it mandatory on a township to bridge every stream crossed by a public road? No law to that effect has been produced. It is well known that all over the state many streams of water on cross roads and roads where there is little travel are crossed by public roads at fords. Where so crossed it is the duty of the municipality to keep the ford in good condition as a part of the public road, but travelers must take notice of high water and if inconvenienced thereby have no right to claim damages from the municipality. By the high water between Kingston and Wilkes-Barre many people have been very seriously inconvenienced at times, yet there has never been a suggestion that any municipality is liable in damages. So in this case with Mr. Naugle'. No doubt he has been seriously inconvenienced by high water, but the resulting loss cannot be charged to the township. If he had occasion to cross the stream many times his inconvenience and resulting loss would be great, but there would be no more reason for charging it on the township.
    The building of a bridge is a matter of judgment and discretion on the part of the municipal authorities and involves thé question of necessity as measured by the demands of public travel, the kind required and the ability of the municipality. In this case I can readily understand how the expense of building two bridges over this stream so near together would be entirely disproportioned to the ability of the township in view of any demand of public travel. Mr. Naugle does not contend that the general public travel would be greatly benefited by such bridges, but rather contends that his property would be greatly benefited and enhanced in value by affording him convenient access at all times. Suppose no road at all led to the Naugle farm and by proceedings in the quarter sessions one should be laid out and ordered opened but the township authorities should wholly neglect to open it. Could Naugle as a private citizen in his individual right compel the township authorities to open the road so that his land might be benefited?
    This may well be answered in the language of the Supreme Court in Heffner v. Commonwealth, 28 Pa. 108. (Change alley to read road.)
    “He has no more right to call on the municipal authorities to open an alley to put money into his pocket than he would have to require them-to build him a house. The ground on which his action rests is his right of passage — his right is to enjoy the alley as an alley — and this right is not peculiar to him but common to the whole town, and therefore a subject o'f public concernment.”
    The right of Naugle in the public road crossing his land is to use it as a road, and this is a right common to all who choose to travel that way. To ascertain his damages we must necessarily determine that some right has been infringed. Mr. Naugle’s early life was spent on this farm, and he bought it twenty years ago with full knowledge of its situation. He erected and improved his planing mill, feed and sawmill and cider mill, and now complains that he could not do business because the township authorities. failed to keep the public road in repair. It was testified that $250 would have put the road in good repair including the fords, and it seems strange that Mr, Naugle would suffer the loss he claims when it could have been so easily avoided even if done at his own expense. The substantial gist of his complaint is that the township would not erect bridges over this creek at the fords so that he could at all times cross with the products of his mills and farm, his children could cross to attend school and the high water and winter isolation of his place be thus overcome.
    Counsel for plaintiff conceded the rule of law to be that to warrant a recovery in this action Mr. Naugle must prove that his injury is “different in kind from that suffered by the general public and hot merely one that is greater in degree,” 21 Am. & Eng. Ency. of Law (2d ed.), 714, and in their brief set forth seven reasons why Mr. Naugle was injured in a manner different in kind and degree from the general public. These may all be properly included under the seventh, viz.: Access to his farm has been practically shut off.
    His farming and mill business all depended on access, and, the desirability of the farm as a home depended on access to school, etc. If the public roads did not furnish satisfactory means of access Mr. Naugle could invoke the laws of the state to give him a private road. The fact that a man by choice or necessity locates along a stream does not of right give him a road or bridge the most convenient way out at public expense. When Mr. Naugle bought his farm and improved his mills he knew the conditions and situation and ought not to complain that the township should build bridges to make his mills and farm profitable. Were it the law that a township must build bridges whenever a landowner desired to enhance the desirability or value of his property I apprehend the burden of taxation would soon be very grievous. As before remarked the gist of the complaint is the failure of the township to put the fords in such condition that access to the Naugle farm could be had at all times. This could only be done by bridging.
    That this road, if bridged,, would be a convenient and valuable highway for Mr. Naugle cannot be doubted, but to say that he has a private right of action against the township for injuries suffered by being denied such a highway is an entirely different proposition.
    In Buck Mountain Coal Co. v. Lehigh Coal, etc., Co., 50 Pa. 91, the plaintiff complained that it had expended large amounts of money in roads, buildings, etc., to reach the canal and had shipped coal that way for over twenty years and had no other outlet. The canal was washed out by a flood, and plaintiff lost over 150,000 a year by being unable to ship coal. The bill was to compel the defendant to repair the canal so that plaintiff could ship coal.

      The relief was denied. The Supreme Court said:
    “It seems to us they are not the proper parties to enforce this duty on the part of the company to the public, in the absence of any such special injury to themselves or property; and by this we mean any injury, special in its operation, resulting from a failure to perform some specified duty to them, or to make compensation for injury and deterioration to their property, as contradistinguished from injury to "them in common with the whole public, in the loss of a convenient and valuable highway.”
    Pittsburg, etc., R. R. Co. v. Jones, 111 Pa. 204, was an action to recover damages for interference with a ferry landing at a public street. The syllabus gives the gist of the contention on the point that Jones having an exclusive ferry right was specially damaged, viz.:
    “When through the construction of a railroad bridge the travel upon a public highway is obstructed, such obstruction is a public nuisance and the injury to the owner of a ferry whose landing is at the terminus of said highway cannot maintain a private action for such obstruction, his injury though greater in degree, being of the same character as that offered by the public at large.”
    Gold v. Philadelphia, 115 Pa. 184, is an action for damages for non-repair of a highway by reason of which the plaintiff claims to have suffered special injury to her business of innkeeper — the road was so bad that travel was diverted to other roads.
    It was ruled that the neglect of duty on the part of the city though causing loss to the plaintiff was a damage similar in kind though greater in degree to that suffered by all persons having occasion to use the road.
    I am unable to distinguish the case at bar, in principle, from the Gold case. Both arise from non-repair of a public road, and the Supreme Court said in the Gold case (p. 198):
    “If we once throw open the door to a recovery in such cases, how are we to measure the extent to which a public highway may be out of repair to entitle owners of property abutting thereon to recover damages. Such questions would have to be referred to a jury whose standard of duty would be as shifting as their verdict wouldo be uncertain and in many instances oppressive.”
    Apparently Mr. Naugle has assumed that by reason of this being the only road over which he could travel to and from his property he has suffered special injury by its non-repair. I am unable to see where he has any special property right or Special right of passage over this road. Being a public road all persons having occasion to pass that way had the same right as Mr. Naugle to use the road. His injury was greater in degree because he had occasion to use the road more frequently than others, but it was of the same kind. Any person traveling over the road would meet the same obstructions — the stones, ruts, holes, sand, the creek, the stones in the fording places — as would Mr. Naugle. His injury was greater because of frequency with which he desired to use the road, but it was no different in kind from that suffered by the public generally. The bad road affected all travelers in the same manner.
    The plaintiff relies upon Stetson v. Faxon, 36 Mass. 147, which is a case of one individual against another for obstructing a public road, and Knowles v. Railroad Co., 175 Pa. 623, which is another action by an individual against a private corporation for obstructing a public road. An examination of authorities will show that the rules applied in such cases are different from the ones applied against a municipal corporation.
    Thus in Massachusetts, Willard v. Cambridge, 85 Mass. 574, the city removed bridge plank and kept them up for sixteen days, preventing the plaintiff from reaching his wharf. In his action for damages the court said:
    “No doubt the annoyance and injury by the acts alleged were much greater in amount than those which were caused to any other person having occasion to use the same highway. But it was a similar sort or species of damage. The manner and nature of plaintiff’s business did not change the kind of damages but only increased the extent of the injury,” and in Blackwell v. Old Colony R. R. Co., 122 Mass. 1, where there was a total obstruction to the navigation of a public stream, the court said:
    “The fact that the plaintiff alone now navigates the stream or has a wharf thereon at which he carries on business only-shows that the present consequential damages to him may be greater in degree than to others but does not show that the injury is different in kind or that other riparian owners and the rest of the public may not, whenever they use the stream, suffer in the same way.”
    The other cases cited by plaintiff are actions for injuries through defects in the highway and the like, and are not in point in this case where the claim is not for damages received in the use of the road but for damages because plaintiff could not use the road at his pleasure.
    I have examined cases from many states and in no state do I find a rule different from our own case of Gold v. Philadelphia, 115 Pa. 184, which follows the rule in other states as is shown in the report of the referee in that case.
    I am now satisfied that in receiving plaintiff's evidence an erroneous measure of damages was adopted, but as the plaintiff is held not entitled to recover, the measure of damages adopted is immaterial.
    On the whole case the referee holds that the injuries suffered by the plaintiff, though much greater in degree, were of the same kind as the injuries to other persons by reason of the neglect of the township authorities to repair the highway and the plaintiff has no right of action.
    A judgment of nonsuit is entered.
    The court confirmed the report of the referee.

      Error assigned was the order confirming the report of the referee.

      George McLaughlin, with him R. J. Lever, for appellant.
    An abutting owner has his right of ingress and egress, and if he sustains private or particular injury not common with the nuisance to the public, may have his redress: Thomas v. Street Ry. Co., 167 Pa. 120; Hopkins v. Mfg. Co., 180 Pa. 199; Pittsburg v. Scott, 1 Pa. 309; Penna R. R. Co.’s App., 115 Pa. 514; Barker v. Hartman Steel Co., 129 Pa. 551; Penna. Schuylkill Valley R. R. Co. v. Reading Paper Mills, 149 Pa. 18; Gallagher v. Phila., 4 Pa. Superior Ct. 60; Knowles v. R. R. Co., 175 Pa. 623; Stetson v. Faxon, 36 Mass. 147; Gold v. Phila., 115 Pa. 184.
    May 20, 1909:
    This case is not controlled by Gold v. City of Phila., 115 Pa. 184, but is governed by the principles of the following cases: Stetson v. Faxon, 36 Mass. 147; Brayton v. City of Fall River, 113 Mass. 218; Pittsburg v. Scott, 1 Pa. 309; Penna. Railroad Co.’s Appeal, 115 Pa. 514; In re Melon Street, 182 Pa. 397; rev’d 1 Pa. Superior Ct. 63; Barker v. Hartman Steel Co., 129 Pa. 551; Penna. Schuylkill Valley Railroad Co. v. Paper Mills, 149 Pa. 18; Gallagher v. Philadelphia, 4 Pa. Superior Ct. 60; Phila. & Trenton R. R. Co. v. Phila. & Bristol Pass. Railway Co., 6 Pa. Dist. Rep. 487.

      Frank McCormick, for appellee.
   Per Curiam,

The referee found as a fact that the injury or inconvenience to the plaintiff while greater in degree was the same in kind as that of the public. The court approved this finding and we have not been convinced that it was error.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Mulligan, Appellant, v. Pennsylvania Railroad Company.

      Waters — Extraordinary flood — Damages to land — Sewer—Railroads.
    In an action of trespass against a railroad company to recover damages for the flooding of land by reason of an alleged defective or deficient sewer, where the evidence shows that the injury took place at the time of an extraordinary flood, the burden is upon the plaintiff to show that notwithstanding the extraordinary character of the water, the defendant’s failure to maintain a sewer of sufficient capacity and in condition to carry off ordinary water at the time, was the actual producing cause of the injury, and if he fails to produce such proof he is properly nonsuited.
    Argued April 14, 1909.
    Appeal, No. 178, Jan. T., 1908, by plaintiffs, from order of C. P. Luzerne Co., June T., 1902, No. 129, refusing to take off nonsuit in case of E. W. Mulligan et al. v. The Pennsylvania Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for injury to land.
    At the trial the court entered a compulsory nonsuit.
    On a motion to take off the nonsuit Fuller, J., filed the following opinion:
    Order of the court below denying motion to take off compulsory nonsuit.
    The action is trespass for damages inflicted upon plaintiffs by alleged negligence in construction and maintenance of a certain sewer, causing obstruction in the same and consequent overflow of water upon plaintiffs’ property.
    Upon conclusion of plaintiffs’ testimony, a motion for compulsory nonsuit was made on the grounds, (1) that the plaintiffs failed to prove any negligence on the part of the defendant which produced the damage and injury complained of in their declaration or statement filed; (2) the evidence ón the part of the plaintiffs shows that their damage or loss was caused by extraordinary flood or storm, for which the defendant is not responsible; (3) the plaintiffs failed to show that their sewer was built in an improper, defective or unworkmanlike manner or of improper materials; (4) the plaintiffs failed to show that the sewer was blocked, choked or obstructed, and that by reason thereof the water was cast upon their premises at the time of the flood.
    The Court said: This case presents three fundamental questions, viz.:
    1. Was the sewer sufficient in capacity and condition at the time of the injury, February 28, 1902, to carry off what we will designate “ordinary water” ?

      2. If it was not sufficient to carry off ordinary water, then, was the water on February 28, 1902, extraordinary?
    3. If the water was extraordinary, then, notwithstanding its extraordinary character, did defendant’s negligence in failing to maintain a sewer of sufficient capacity and in proper condition to carry off ordinary water, concur with the extraordinary water as an actual producing cause of the plaintiffs’ damage?
    The testimony adduced by the plaintiffs establishes the fact that the water which caused the plaintiffs’ injury on February 28,1902, was extraordinary in its character. It therefore devolved upon the plaintiffs to show that notwithstanding the extraordinary character of the water, the defendant’s failure to maintain a sewer of sufficient capacity and in condition to carry off ordinary water on February 28,1902, was the actual producing cause of the plaintiffs’ damage.
    I am of the opinion that the plaintiffs have failed to sustain this burden of proof by sufficient evidence to submit to the jury, and I must therefore sustain the motion for a compulsory nonsuit.
    Plaintiffs concede that the water was extraordinary in character and that, therefore, the burden of proof did devolve upon them as above stated, but contend that this burden was fully sustained.
    Careful consideration of the testimony confirms the conclusion reached upon the trial, and, therefore, now, November 11,1907, the motion to take off nonsuit is denied.

      Error assigned was refusal to take off nonsuit.

      James L. Morris, for appellants.
    Aqua currit et debet currere: Kauffman v. Griesemer, 26 Pa. 407; Taylor v. Canton Twp., 30 Pa. Superior Ct. 305; Brown v. Railway Co., 183 Pa. 38.
    It was for the jury to pass upon the defendant’s liability: Lehigh Bridge Co. v. Lehigh C. & N. Co., 4 Rawle, 9; Bell v. McClintock, 9 Watts, 119; McCoy v. Danley, 20 Pa. 85; Fick v. R. R. Co., 157 Pa. 622; Brown v. Railway Co., 183 Pa. 38; Smith v. Shields, 194 Pa. 635; Keats v. Gas Co., 29 Pa. Superior Ct. 480; Miller v. Buffalo, etc., R. R. Co., 29 Pa. Superior Ct. 515; Dutton v. Phila., B. & W. R. R. Co., 32 Pa. Superior Ct. 630; Masterson v. Lehigh Valley R. R. Co., 36 Pa. Superior Ct. 66; Engle v. Gas Co., 36 Pa. Superior Ct. 311; Helbling v. Allegheny Cemetery Co., 201 Pa. 171.
    May 20, 1909:

      F. W. Wheaton, for appellee.
    Extraordinary occurrences, such as an extraordinary flood, defendant was not bound to foresee, nor to provide against: Railway Co. v. Gilleland, 56 Pa. 445; B. & O. Railroad Co. v. School District, 96 Pa. 65; Herr v. Lebanon, 149 Pa. 222.
    It is respectfully submitted that the learned trial judge was clearly right in directing a nonsuit and in refusing to take it off: Berninger v. Sunbury, etc., R. R. Co., 203 Pa. 516; B. & O. R. R. Co. v. School District, 96 Pa. 65; Taylor v. Canton Twp., 30 Pa. Superior Ct. 305.
   Per Curiam,

The judgment is affirmed on the opinion of the court below refusing to take off the nonsuit.


text:
    Hughes’s Estate.

      Will — Children—Daughter—Adopted daughter.

    1. A direction in a codicil to a will that the money which testator had in bank should be equally divided among all his children, does not include a woman whom the testator had recognized and treated as one of his children for thirty-five years, although not of his blood, and whom inhiswill he designated as “an adopted daughter” and “mydaughter.”
    2. In Pennsylvania a child may not be adopted by parol.
    Argued April 14, 1909.
    Appeal, No. 103, Jan. T., 1909, by Annie Griffith Landy, from decree of O. C. Luzerne Co., No. 65, of 1907, dismissing exceptions to adjudication in Estate of Henry L. Hughes.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.

      Exceptions to adjudication.
    Freas, P. J., filed the following opinion:
    Henry L. Hughes, the testator, left to survive him three children, and three grandchildren, the latter being children of a daughter, Margaret Lamoreaux, who died previous to the time of making his will. He had taken to raise when she was sixteen months a girl named Annie Griffith, and he always treated her precisely as he did his own daughters; she addressed him as father and his wife as mother, and he spoke of her as his daughter. She was in fact not related to him in any way.
    It is claimed on behalf of the grandchildren and Annie Griffith that they are included in the term “children” as mentioned in the codicil and are therefore entitled to share with the living children of his blood in the distribution of his money in bank.
    The pertinent parts of the will and codicil read as follows:
    “I will and bequeath to my daughter, Sarah Eldred, one hundred acres of land, it shall be the south end of the William Hyde tract, and to my son, Henry H., the use of one hundred acres of the same tract lying on the north side of the piece devised to Sarah, and to my son, Lewis, I will the remainder of the homestead including the north portion of the William Hyde survey. I will to my daughter, Jane Cease, and my daughter’s children of Margaret Lamoreaux, now dead, and Annie Griffith, an adopted daughter, the remainder of my property which consists of house and lot in the city of Wilkes-Barre, and two houses and lots in West Nanticoke and mountain tract in Huntington Township known as the Lewis Richards tract, my daughter Annie Griffith shall not be debarred from remaining on the homestead during the lifetime of my widow.
    “My son, Lewis, shall have the use of the hundred acres set apart for him but not to sell, convey the same, it shall fall to his heirs at his death, and I further appoint my son, Henry H. Hughes, to be guardian of the children of my daughter, Margaret Lamoreaux, in their minority, also guardian of my son, Lewis, providing that Lewis does not hold and occupy the land designed for him.”
    Codicil No. 2:
    “ Know all persons that I, Henry L. Hughes, of Plymouth Township, Luzerne County, and State of Pennsylvahia, does this day alter my former will by reason of the death of my son, Lewis, and I hereby bequeath the homestead to my daughter, Sarah, during her lifetime, and at her death it shall fall to her heirs, and the money that I hold in the bank shall be equally divided among all of my children.”
    It is well-settled rule of law that a bequest to children, where there are childreh to take, does not include grandchildren unless it be the apparent intention of the testator, clearly disclosed by his will, to provide for the children of a deceased child: Hunt’s Estate, 133 Pa. 260. There is nothing in this will which by necessary implication permits a construction differing from the ordinary rule of law, and we find that the grandchildren are not comprehended in the word “children,” and consequently they do not share in the bequests to his children of the money in bank. They, however, will take of testator’s estate, not disposed of by his will, the same share their mother would take if living.
    For Annie Griffith it is contended that the will of testator, in which he speaks of her as his daughter and his adopted daughter, operates as a deed of adoption under Act of April 2, 1872, P. L. 31. Whether the will is in compliance with that act we need not say, for it is held in Carroll’s Estate, 219 Pa. 440, that in Pennsylvania there is no authority for the proposition that a child may be adopted by parol. We have no evidence of her adoption by decree of court, and we must, therefore, conclude that she was never legally adopted by testator.
    It is further contended on behalf of Annie Griffith that the testator intended to include her in the term “children” as found in the codicil, as manifested by the language employed in the body of the will. He makes devises to her as “Annie Griffith, an adopted daughter,” and as “my daughter, Annie Griffith.” These words are merely descriptive of the person intended; they did not, in fact, make her a daughter or an adopted daughter, for she was neither: Line’s Estate, 221 Pa. 374. There being children of his blood to take, no necessity arises to extend the term beyond its natural import: Hunt’s Estate; 133 Pa. 267. The language employed by testator in his revoked will, if it is evidence of his intention, does not sustain her contention. It follows that Annie Griffith is not to share in the distribution of the money in bank, nor does she share in the part of testator’s estate which passes under the intestate laws.
    May 20, 1909:

      Error assigned was decree dismissing exceptions to adjudication.

      Evan C. Jones, with him Thomas Butkiewicz, Jr., for appellant.

      Granville J. Clark, with him P. W. McKeown, for appellee.
   Per Curiam,

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


text:
    Scranton v. Laurel Run Turnpike Company, Appellant.

      Turnpike companies — Public highways — Automobiles.
    Turnpike companies cannot exclude automobiles from passage over their roads.
    Argued April 14, 1909.
    Appeal, No. 230, Jan. T., 1908, by defendant, from order of C. P. Luzerne Co., Dec. T., 1907, No. 219, awarding mandamus in case of W. W. Scranton v. The Laurel Run Turnpike Company.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Demurrer to defendant’s return to alternative mandamus.

      Halsey, P. J., filed the following opinion:
    The petitioner alleges that he is a resident of the state of Pennsylvania, and as such is entitled to the free and uninterrupted use and passage over and upon the public highways in the state..
    The defendant is a corporation chartered under the Act of April 29, 1874, P. L. 73, for the purpose of constructing and maintaining a turnpike road. That under and in pursuance of its charter, it has constructed and is now maintaining a turnpike road between the city of Wilkes-Barre and the township of Bear Creek in the county of Luzerne, and has established a toll gate on said turnpike road and has been collecting tolls from persons using and traveling on the same.
    That the petitioner is the owner of an automobile of which H. D. Warner, of said city of Scranton, is the operator and driver. That the said driver has been licensed by the highway department of the commonwealth to operate a motor vehicle upon the public highways of the state for the year 1907, which license is dated January 1, 1907. That the said turnpike road is a public highway. That upon October 5, 1907, said Warner, while operating said automobile, which had displayed in a conspicuous place on the front and back of it said license number, accompanied by the petitioner, arrived at the toll gate of said turnpike company and found the same closed, and the plaintiff requested the toll gate keeper to permit them to pass through said gate and over said turnpike road in said automobile, and offered and tendered the toll keeper any toll that the turnpike company might demand for the use of the road. The toll keeper, following the instructions of the defendant, refused to permit the plaintiff’s automobile the privilege of passing through the said gate.
    It is further alleged that the said defendant company by refusing and prohibiting the use of the turnpike road by automobiles and by refusing to allow your petitioner to pass through said toll gate and over and upon said turnpike road in said automobile on October 5, 1907, and by allowing teams and wagons the use of the same, is unjustly and unlawfully discriminating and did unjustly and unlawfully discriminate against the petitioner and against others who may desire to pass over said turnpike in automobiles. That the said turnpike road is a public highway and the defendant has no legal or equitable right to prevent the petitioner’s automobile and others who are duly licensed from driving and operating automobiles thereon upon the payment of a just and reasonable toll.
    All the essential averments of the plaintiff’s petition are admitted or not denied with the exception of that contained in sec. 15 of the defendant’s return, viz.:
    “We say that there is no remedy at law by this proceeding or otherwise to compel us to allow the passage of automobiles over our said turnpike, and we further say that the law fixes no lawful and reasonable toll for automobiles.”
    The defendant company was incorporated under the Act of April 29, 1874, P. L. 73, sec. 30. That the said defendant company has finished more than five miles of its road. That said road is a public highway. That it has erected toll gates upon the said road and exacted tolls under and in pursuance of the said act and its supplements. That it has refused to permit automobiles to use said road.
    By cl. 6, p. 80, of said act, when such corporation is licensed it shall and may be lawful for it to appoint such and so many toll gatherers as they shall think proper “ to collect and receive of and from all and every person or persons using said road the toll and rates hereinafter mentioned .... for coach .... sulky .... chaise, phaeton .... wagon or any other carriage of burden or pleasure.”
    By cl. 9 it is further provided, “ if any person or persons owning, riding in or driving any sulky, chaise .... or other carriage of burden or pleasure shall pass through the toll gate with intent to defraud the company, they will be subject to a penalty of $10.00.”
    In the Act of April 19, 1905, P. L. 217, sec. 1, automobiles and motor vehicles propelled by steam, gas or electricity, are recognized as among those denominated in the corporation act as “any other carriage of burden or pleasure,” or as “other carriage of burden or pleasure,” by providing that they shall not be operated or driven upon any public street or highway in any city, borough, county or township in this commonwealth until the operator shall have procured a license.
    May 20, 1909:
    The defendant’s turnpike is a public highway. The vehicle which the plaintiff was driving on October 5, 1907, must be included in the general designation of the act of April 29,1874, as “other carriage of burden or pleasure,” and “every other carriage of pleasure under whatever name it may go.”
    We cannot concur with the allegation of the defendant that “the law fixes no lawful and reasonable toll for automobiles.”
    The relator’s demurrer to the return of the Laurel Run Turnpike Company is sustained and a peremptory writ of mandamus commanding it, the said Laurel Run Turnpike Company, to perform the duties prayed for in the petition in this case, is allowed.

      Error assigned was the order of the court.

      Paul Bedford and Geo. R. Bedford, for appellant.

      W. Alfred Valentine, for appellee.
   Per Curiam,

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


text:
    McKinnon v. Mertz, Appellant.

      School law — Increase of debt — Over legal limit — Contract for school building — Payment.
    A contract for the erection of a school building at a price which in addition to previous existing indebtedness would create a total debt in excess of two per cent of the assessed valuation of the property of the school district, will be enjoined as an illegal increase of indebtedness, although the manner of payment is limited to available funds of current revenues as they may arise from a special tax levy or otherwise.

      Argued April 26, 1909.
    Appeal, No. 81, Oct. T., 1909, by defendants, from decree of C. P. No. 1, Allegheny Co., Sept. Term, 1908, No. 524, on bill in equity in case of C. L. McKinnon et al. v. Jacob Mertz et al., School Board of the School District of McKees Rocks, Allegheny County, Pa., and H. L. Kreusler, Contractor.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Bill in equity by taxpayers to enjoin the carrying out of a contract for the construction of a school building. Before Miller, J.
    From the adjudication it appeared that on June 9, 1908, the defendant school board entered into a written contract with H. L. Kreusler, to build a school building for $148,970. Subsequently on July 27, 1908, a supplemental agreement was executed which recited that the question had been raised as to whether said contract by its terms creates an indebtedness in excess of the amount which the said district is permitted to contract, without the authority of the legal electors of said school district.
    And provided further as follows:
    “Now, this supplemental agreement witnesseth: That said agreement of June 9th, 1908, shall create no indebtedness of said school district to said H. L. Kreusler, except for work done and materials furnished under said contract of the value in amount of the funds legally available to said school board for building purposes at the time the said contract was entered into.
    “It is further agreed by and between the parties hereto, that said H. L. Kreusler shall continue the work of the erection of said building in accordance with the conditions of the contract' of June 9th, 1908, so long as any funds legally available for the erection of said building when the said contract was entered into, shall remain unexpended.
    “If at any time the said school board shall be without legally available funds to further carry on said work, then said Kreusler shall cease work on said building, until said board is provided with funds for further building purposes, when, if the school board so elect, he shall resume work under said contract, and continue the same to completion, or so long as funds are legally available to the school board for carrying on the said work. Should said JKreusler cease work on said building for the cause hereinbefore mentioned, or be compelled to cease for any other cause, he shall then be entitled to be paid on the estimates of the architect in full for all work then done and material then furnished by him, in so far as the funds for this purpose legally available to the school district will permit.”
    Miller, P. J., filed the following opinion:
    Section 8, art. IX, of the constitution of Pennsylvania, after fixing the ultimate limit of the debt any county, city, borough, township, school district, or other municipality or incorporated district, may have, as not to exceed seven per cent of the assessed value of taxable property therein, further provides: “Nor shall any such municipality, or district, incur any debt, or increase of indebtedness beyond two per cent upon the assessed valuation of property, without the assent of the electors thereof at a public election.”
    It is manifest that the contract price, standing alone, for the erection of this building in the sum of 1148,970, in addition to the previous existing indebtedness, created a total debt in excess of two per cent of the assessed valuation of the property; but it is earnestly contended that the manner of payment in the original, and especially in the supplemental agreement, “from available funds” limits the debt to an amount less than the contract price, and may keep it within the constitutional prohibition.
    The purpose contemplated by the contracts was the erection on or before August 1, 1909, of á completed school building, to be paid for on monthly estimates; final payment to be made of the fifteen per cent remaining, within thirty days after completion; the debt was fixed by the contract price, and there is nothing in the clause relating to available funds in the original or supplemental contract, that decreases the contract price as fixed; on the contrary, the supplemental contract reaffirms the original in every material respect, except so far as it would appear to give the parties discretion to work piecemeal on this building, thus resulting in an incomplete building at . an indefinite time; not only does the amount of the contract price remain, but the contractor is to receive interest on all deferred payments; the modification is as to the manner of the payments, but is not a decrease of the indebtedness.
    Granted that the defendant parties to the contract, intended to avoid the prohibition of the constitution by limiting the manner of payment to available funds of current revenues as they may arise from a special tax levy, or otherwise, it is manifest that they bound the district for a fixed debt of at least the contract price; this exceeds the limit of their right, and an effort to avoid the increase by stopping the contractor when available funds cease, in the absence of an abrogation of the contract price itself, is futile.
    The contention that the board had over $102,000 on hand when the contract was made, while admitted by the plaintiffs for the purpose of this case, is far from the exact fact; neither the funds collected by the unbonded delinquent collector, nor the taxes for 1908 levied, were, or are in the treasury of the board, nor are available. There was more clearly but one-half of this estimated amount available when this contract was made.
    If there were nothing more in these contracts than to provide for the district’s ordinary expenses within the current revenues, the conclusion of Wade v. Oakmont Borough, 165 Pa. 479, might be applicable; but the erection of this school building is an extraordinary expense. The contracts contemplate a complete structure within a fixed time, to be delivered to the district at a fixed price.
    The same attempt to avoid the constitutional prohibition appears in Brown v. City of Corry, 175 Pa. 528, where a contract to construct a complete water system, and deliver it to the city, was entered into, the waterworks to be paid for, inter alia, at the rate of $6,000 per annum for twenty years, “From the current revenues of said city and not otherwise.” There as here, was the incurring of an extraordinary expense for a structure to be erected and delivered upon completion; the manner of payment there, as here, did not change the creation of the principal debt.
    The liability to pay for the work as done, out of available funds, in the special manner contemplated by the supplemental agreement, is a debt, or a series of successive debts; separately and in the aggregate, they are obligations of the district, limited only by the amount of the original contract price.
    As held in Brown v. City of Corry, 175 Pa. 528, and in the cases therein cited, “ the making of a contract for a fixed price .... or the borrowing of money, creates a debt, irrespective of the method of remedy for its collection, and whenever by the terms of its creation, unless for the ordinary expenses of the municipality, it exceeds the constitutional prohibition, it cannot be sustained.”
    Funds legally available is a very indefinite term. Only a small part of this contract price could be met by present available funds; how the rest was to be provided does not appear; a public improvement to be completed within a limited time is imperiled if depending upon a fluctuating, indeterminable balance of current funds. Suppose the funds are exhausted, and under the contract the work stops, how are they to be supplied? When will the building be finished? Suppose the work goes on, the board in good faith believes it can raise available funds and it fails; the builder “shall then be entitled to be paid on an estimate of the architect in full for all work then done and material furnished by him;” if there are no funds available, is there any question of his right to recover, and may it not be the full amount of this contract price?
    It is clear that the erection of this building is a necessity; it must be admitted as a general proposition, that no money is so well used as that which is necessarily and honestly applied towards the erection and maintenance of needed school buildings, and the support of a well-established school system; but the law points out the way of procedure, and it must be followed.

      May 20, 1909:
    In the meanwhile if necessity exists for the preservation of what has been done, and the safe-guarding of the rights of those interested, application may be made for such temporary orders as will best serve all interests.

      Error assigned was decree enjoining the carrying out of the contract.

      R. A. & Jas. Balph, for school district, and Kinnear, McCloskey & Best for H. L. Kreusler.
    It has been held that a municipal contract to pay for water, light, sewage, etc., at stated times in the future, does not create an indebtedness for the aggregate amount of such payment within the meaning of the provision limiting the indebtedness of the municipality, and the validity of such a contract is to be tested by the amount of the first payment due thereunder: City of Erie’s Appeal, 91 Pa. 398; Wade v. Oakmont Boro., 165 Pa. 479; Webb City, etc., Waterworks Co. v. Carterville, 153 Mo. 128 (54 S. E. Repr. 557); Grant v. Davenport, 36 Iowa, 396; Voss v. Waterloo Water Co., 163 Ind. 69 (71 N. E. Repr. 208); Cain v. Wyoming, 104 Ill. App. 538; Doland v. Clark, 143 Cal. 176 (76 Pac. Repr. 958).
    A contract for indebtedness partly within and partly beyond the limitation is void only as to the excess: Gray v. Bourgeois, 107 La. 671 (32 So. Repr. 42); State v. Blake, 26 Wash. 237 (66 Pac. Repr. 396); Herman v. Oconto, 110 Wis. 660 (86 N. W. Repr. 681); McPherson v. Foster Bros., 43 Iowa, 48; Stockdale v. School District, 47 Mich. 226 (10 N. W. Repr. 349); Daviess County v. Dickinson, 117 U. S. 657 (6 Sup. Ct. Repr. 897).

      John Marron, of Marron & McGirr, for appellees.
    The device of the defendants to escape the constitutional provision is not new nor practicable, as a review of the cases will show: Brown v. City of Corry, 175 Pa. 528.
   Per Curiam,

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


text:
    Cook v. Erie Electric Motor Company, Appellant.

      Practice C. P. — Trial—Objectionable remark of counsel — Refusal to withdraw juror.

    1. Where on the trial of a cause plaintiff’s counsel says “this great millionaire company don’t deny that,” and defendant's counsel objects and asks that a juror be withdrawn and the plaintiff’s counsel at once withdraws the remark, and the judge instantly cautions the jury to disregard the remark entirely, the appellate court will not reverse the case because the trial judge declined to withdraw a juror.

      Negligence — Street railways — Right-angle collision between car and wagon.

    2. In an action against a street railway company to recover for personal injuries sustained in a right-angle collision between a car and wagon,-it appeared that plaintiff was driving in the nighttime along the side of defendant’s track in a street, and that he attempted to cross the tracks where they made a slight curve in the street, but not at a street intersection. He was driving so nearly parallel with the track that, when his horses got within five feet of the track in front of them, the track would not be over eighteen inches from the horses at right angles to them. At this point he looked for an approaching car. It also appeared that at this point the public generally crossed the track. The car was being run at a high rate of speed at the time. Held, that the case was for the jury and that a verdict and judgment for plaintiff should be sustained.
    Argued April 27, 1909.
    Appeal, No. 106, Jan. T., 1909, by-defendant, from judgment of C. P. Erie Co., Nov. T., 1907, No. 90, on verdict for plaintiff in case of Reuben A. Cook v. Erie Electric Motor Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Walling, P. J.
    In addition to the facts stated in the opinion of the Supreme Court it appeared that the accident happened on the night of December 4, 1906, when it was dark, and that the electric car was running at a high rate of speed.
    The court submitted the case to the jury.

      May 20, 1909:
    Verdict and judgment for plaintiff for $1,750. Defendant appealed.

      Errors assigned among others were (1) refusal .of binding instructions for defendant; and (7) refusal to withdraw a juror.

      S. A. Davenport, with him J. M. Sherwin, for appellant.

      A. P. Howard, with him L. G. Peck, for appellee.
   Per Curiam,

In the argument to the jury counsel for plaintiff in commenting on the evidence in the case and the damages that should be awarded the plaintiff said: “This great millionaire company don’t deny that.” Defendant’s counsel objected to this remark, and asked that a juror be withdrawn. The plaintiff’s counsel at once withdrew the remark, and the judge said: “We say to the jury that you should entirely disregard that remark. There is no evidence to base it on, and you should disregard it entirely. The counsel having withdrawn it we decline to grant the request of the defendant, but will seal them an exception.”

It has been frequently held that in this class of cases no irregularities should be permitted which tend to inflame the prejudices of the jury against the defendant, and in a flagrant case this court will reverse for such error. But so much depends on the immediate circumstances and what may be called the atmosphere of the trial that a large discretion must be allowed to the trial judge. In the present case the action of the judge in cautioning the jury was so prompt and the withdrawal of the improper remark by counsel was so frank and unreserved that we cannot say that the judge did not use a wise discretion in refusing to withdraw a juror.

On the main question of plaintiff's negligence we adopt the language of the judge in refusing a new trial: “Plaintiff was not attempting to cross defendant’s track at a street intersection, but was driving along at the side of the track in the street and attempted to cross the tracks where the track makes a slight curve in the street. He was driving so nearly parallel with the track, that, when his horses got within five feet of the track in front of them the track would not be over eighteen inches from the horses at right angles to them. As a car projects nearly that distance outside of the track, it would appear from plaintiff’s evidence that when he looked for an approaching car he was as near the track as it was practical to go without looking. We cannot say that the jury were not justified in finding that he looked at the edge of the track, and, as that was the place where the evidence tended to show the public generally crossed the track, we cannot say that the plaintiff was negligent in attempting to drive over the track at that curve. We are still of the opinion that the case was for the jury.”

Judgment affirmed.


text:
    Commonwealth, Appellant, v. Burford.

      Trespass — Posted land — Private ways — Ways of necessity — Act of April 14, 1905, P. L. 169.
    1. The Act of April 14, 1905, P. L. 169, entitled, “An act making it unlawful to trespass upon land posted as private property, and providing the penalty therefor,” does not apply to a case where the owner of land builds tenement houses thereon in rows, and leases them to tenants, and where the only access to the houses for the tenants and those who have relations with them is by customary or private ways on the .land leading to public highways. A tradesman who uses such customary or private ways, in order to deliver goods at the house of one of the tenants who has ordered the goods is not liable to the penalty imposed by the act for trespass upon posted land.
    2. When a conveyance contains no express grant of a right of way appurtenant to lands and no words are used from which such grant arises by implication, such right of way may, however, arise from the circumstances of the grant itself. The most marked right of way arising in this manner is the way of necessity. Where land is sold or leased and is so situated that access to it from the highway cannot be had except by passing over other land of the grantor or lessor the grantee or lessee becomes entitled to a right to pass over the land of his grantor or lessor for the purpose of reaching the highway and returning to his own land.
    3. A right of way appurtenant to a house includes not only the right of the lessee to the use of it, but also the right to its use by any other person who with the permission of the tenant visits the house for any lawful purpose.
    Argued May 11, 1909.
    Appeal No. 147, Jan. T., 1909, by plaintiff, from judgment of the Superior Court, April T., 1909, No. 74, reversing judgment of Q. S. Fayette Co., June T., 1907, No. 217, affirming judgment of justice of the peace in case of Commonwealth v. Isaac H. Burford.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Appeal from Superior- Court.
    Porter, J., filed the following opinion:
    The defendant having, in a proceeding before a justice of the peace, been convicted of and fined for a willful and unlawful entry upon lands, upon which the owners had caused to be prominently posted printed notices that the said land was private property and warning all persons from trespassing thereon under the provisions of the Act of assembly approved April 14, 1905, P. L. 169, entitled, “An act making it unlawful to trespass upon land posted as private property, and providing the penalty therefor,” the court of quarter sessions allowed an appeal from said judgment. The parties entered into a written agreement, as to the facts, which was filed in the court below in the nature of a case stated, and upon the facts thus brought upon the record the court adjudged the defendant guilty and affirmed the judgment of the justice. The defendant appeals, and the only question presented is, are the facts embodied in the case stated sufficient to sustain the judgment.
    The title of the act of April 14, 1905, above quoted, clearly indicated that it was the legislative intention to deal with the subject of trespasses upon land posted as private property, and to provide the penalty therefor. The subject was not new, trespass upon land which was private property had for very many generations been recognized by the common law as unlawful, a private injury or wrong. Blackstone defines it, Book III, chap. 12, page 209, thus: “It signifies no more than an entry on another man’s ground without lawful authority, and doing some damage, however inconsiderable, to his real property. For the right of meum and tuum, or property in lands, being once established, it follows as a necessary consequence that this right must be exclusive; that is, that the owner may retain to himself the sole use and occupation of his soil; every entry, therefore, thereon without the owner’s leave, and especially if contrary to his express order, is a trespass or transgression.” And again, on page 214 of the same chapter: “Every trespass is wilful, where the defendant has notice, and is especially forewarned not to come on the land.” The injury or wrong was a private one, and the remedy was in an action of trespass by the owner.
    The first section of the act declares that, “It shall be unlawful for any person wilfully to enter upon any land, . . . . where the owner or owners of said land has caused to be prominently posted upon said land printed notices that the said land is private property, and warning all persons from trespassing thereon.” It requires no resort to artificial rules of construction to arrive at the conclusion that what the legislature here declared to be unlawful was a willful trespass upon land which had been posted by the owner in the manner indicated by the statute. It certainly was not the legislative intention to prohibit every entry, whether with or without right, upon land which had been thus posted; and give to the soil a sacred character. In seeking the legislative intention it would not be reasonable to confine the inquiry to the one clause of the section made up of these words, “it shall be unlawful for any person willfully to enter upon any land,” which has been posted. To do this would be to hold that the owner could not enter upon his own land, nor make any contract permitting any person else to so enter. The notices which the act requires to be posted must warn “all persons from trespassing” upon the lands. Considering the section as a whole its meaning is free from doubt. When the owner has posted upon the land notice warning all persons against trespassing thereon, an intentional trespass shall render the trespasser subject to the penalty imposed by the statute. When thus read the statute contains nothing of which its title did not give that notice required by the constitution. The statute certainly contains nothing from which could be implied a legislative intention to do anything but make subject to a penalty such things as were and always had been trespasses upon land. The effect of the statute was to declare to be a public wrong and subject to a penalty a thing which had until that time been a private wrong for which the party injured had a remedy by private action. This act did not change the rights of the owner of the land, nor deprive him of any power to enter into contracts giving to other persons the right to enter upon his holdings, nor can it have any effect upon the rights acquired under any contract with regard to said lands, into which he may enter. There was not concealed in the body of this statute any provision which could by any reasonable intendment be held to take away from any person having an interest in land, which under the existing law entitled him to enter thereon, the right to so enter. Had such a provision been concealed in the body of the act, the title of the statute gave no notice of it and the constitutional provision would have rendered it invalid.
    Fitzgerald and Lenhart were the owners in fee simple of a large tract of land in Fayette county upon which they had caused notices to be posted in the manner provided for by the act of April 14, 1905. They operated upon this tract a coke works at which they employed a large number of men. On this land were located about eighty-five tenement houses, in which the employees of said coke works reside; said houses being arranged in rows or streets, which had no outlet to the public road except over the private property of Fitzgerald and Lenhart.
    The village is traversed by private and customary ways and paths used by said tenants and the other employees of the proprietors. There has been no dedication by deed or plot of the streets or ways of said coke village to public use, but the same are private ways over the lands of the proprietors in which no other than the proprietors and their employees have any interest or property, but there are no other means of ingress or egress to and from the residences of said tenants than over said private ways. The owners leased the several houses to various tenants. The written lease in each case was for the term of one month, it designated the lessee, the amount of rent to be paid, the number by which the house was known, provided for the payment of the rent punctually and that in case of a holding over the tenancy should be for another month and from month to month. The written lease contained no reference to any public or private way. Burford, the .defendant, was a dealer in merchandise in the borough of Union-town, and having received orders for certain specified goods from certain tenants of the aforesaid houses, upon the property of Fitzgerald and Lenhart, with directions that the goods be delivered at said residences of the persons so ordering the same, he attempted to make delivery of the goods in accordance with such orders. While delivering said goods and at the time he was arrested the defendant traveled on foot and used only the private ways or paths customarily used by the tenants of said houses in going to and from their daily employment and in going to and from the public road. He could not have delivered said goods at said houses in any other way. While in the act of delivering such merchandise so ordered he was arrested. Upon these facts and no others he was convicted.
    When Fitzgerald and Lenhart leased a house in the village to a tenant, that necessarily involved a demise of the land upon which the house stood and the lot, if any, used in connection therewith. The property leased was entirely surrounded by other lands of the lessors and was not accessible from any highway in any manner save over such other lands. The written lease contained no express grant of a right of way, from the house to the public highway, nor did the mere words of the lease embody anything from which such a grant could be implied. When a conveyance contains no express grant of a right of way appurtenant to lands and no words are used from which such grant arises by implication, such right of way may, however, arise from the circumstances of the grant itself. The most marked right of way arising in this manner is the way of necessity. Where land is sold or leased and is so situated that access to it from the highway cannot be had except by passing over other land of the grantor or lessor, the grantee or lessee becomes entitled to a right to pass- over the land of his grantor or lessor for the purpose of reaching the highway, and returning to his own land: Wissler v. Hershey, 23 Pa. 333; Ogden v. Grove, 38 Pa. 487, and note to, Atkyns v. Bordman; 4 Leading Cases in the American Law of Real Property, Sharswood & Budd, p. 191. Had there been no recognized private customary way leading from the houses in the village to the highway the tenants of those houses would have been entitled to a way of necessity from their houses over the other land of the lessors to the highway. The facts agreed upon in the case stated, however, established that the village was traversed by private and customary ways and paths used by the tenants in passing through the village “and in going to and from the public road,” and, further, that the tenants could only have access to their bouses over such “private and customary way.” An owner of land may, in Pennsylvania, arrange it as he pleases, doing no injury to others, and may provide ways or other privileges necessary for the convenient use of the different parts of his land. When he has thus provided ways for the specific use of particular parts of his land and conveys the different parts of the tract; by deed or lease, in fee or for a definite term, the grantees or lessees take the several parts subject to the servitude of such ways or with the right to the use of such ways appurtenant to their land, as the case may be, in the absence of an express reservation or agreement on the subject. In such a case justice requires that the grant should be construed against the grantor so far as to pass the privileges annexed by himself to the property conveyed: Kieffer v. Imhoff, 26 Pa. 438; Eby v. Elder, 122 Pa. 342; Zell v. Universalist Society, 119 Pa. 390; Geible v. Smith, 146 Pa. 276; Held v. McBride, 3 Pa. Superior Ct. 155; Church v. Vonneida, 6 Philadelphia, 557. When Fitzgerald and Lenhart leased the several houses they, the owners of the land, knew of the existence of these private customary ways and they knew, also, that these ways were the only means of access to the houses which they were leasing. These private and customary ways, therefore, passed by the lease as appurtenant to the house, and the fact that the lease contained no express grant is wholly immaterial. The ways being appurtenant to the house, the title to the latter carried with it the right to the use of the way. The right being appurtenant to the house, it included not only the right of the lessee to the use of it but that it might be used by his family and others who with the permission of the tenant visited his home for any lawful purpose. "It needs no citation of authority to show that such a right of way, appendant or annexed to an estate, may be used and enjoyed by those who own or lawfully occupy any part of the dominant tenement for any purpose to which it may from time to time be legitimately applied. Only those who may be properly regarded as trespassers on the dominant tenement can be excluded:” Gunson v. Healy, 100 Pa. 42.
    May 20, 1909:
    The appellant was using the customary private way leading to the houses of the tenants upon the tract of land in question under the right of such tenants, to whom and upon whose express orders he was at the houses delivering necessary family supplies. The right of the tenants justified his entry and he was not a trespasser.
    The judgment is reversed and the appellant discharged.

      Error assigned was the judgment of the Superior Court.

      W. J. Johnson, of Johnson & Rush, with him D. W. Henderson, district attorney, for appellant.

      W. C. McKean, of Robinson, McKean & Martin, for appellee.
   Per Curiam,

Judgment affirmed on the opinion of the Superior Court.


author: Mr. Justice Elkin,

text:
    McLean v. A. Schoenhut Company, Appellant.

      Negligence — Master and servant — Failure to instruct — Defective machine — Pleading—V ariance.

    1. In an action by a boy sixteen years old against his employer to recover damages for injuries sustained while operating a stamping machine, where the only negligence alleged in the case was failure on the part of the defendant adequately to instruct the plaintiff, it is reversible error to permit the case to go to the jury on the question of a defective machine.
    2. In such a case the burden is on the plaintiff not only to charge the particular negligence complained of, but to prove it by sufficient testimony. The parties are bound by the pleadings, and the courts cannot disregard them. It will not do to allege one ground upon which to sustain a recovery of damages for failure to perform a duty, and at the trial prove, or attempt to prove, failure to perform a different kind of duty, the breach of which was not alleged.
    Argued March 25, 1909.
    Appeal, No. 80, Jan. T., 1909, by defendant, from judgment of C. P. No. 2, Phila. Co., June T., 1906, No. 3,614, on verdict for plaintiffs in case of Allen G. McLean by his father and next friend, Allen McLean, and the said Allen McLean in his own right v. The A. Schoenhut Company.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Sulzberger, P. J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for plaintiff, Allen G. McLean, for 15,000 and for plaintiff, Allen McLean, f1,056. Defendant appealed.

      Errors assigned were in' submitting the case to the jury and refusing defendant’s motion for judgment non obstante veredicto.

      F. B. Bracken, of Loughlin & Bracken, for appellants.
    The jury were improperly permitted to base their verdict for plaintiffs on a cause of action not alleged in the statement of claim, and as amendment was not permissible at the trial or subsequently owing to the lapse of time since .the accident, defendant’s motion for judgment non obstante veredicto should have been granted: Pumeroy v. Bruce, 13 S. & R. 186; Fenn v. Early, 113 Pa. 264; Watkins v. Moore, 192 Pa. 211; Clark v. Lindsay, 7 Pa. Superior Ct. 43; Noonan v. Pardee, 200 Pa. 474; Clark v. Garrison Foundry Co., 219 Pa. 426.
    May 24, 1909:

      Howard A. Davis, with him John T. Murphy, for appellee.
   Opinion by

Mr. Justice Elkin,

The injuries for which damages are sought to be recovered in this case resulted by accident from the operation of a stamping or pressing machine. The injured boy was between fifteen and sixteen years of age and had been employed in .the factory for six months immediately preceding the accident and for several months at various times prior to his last employment. The. only negligence charged in the statement of claim was failure to give adequate instructions as to the method of operating the machine. It is true that in the recital of the duties with which the appellant company was charged, it was alleged in general terms that it became its duty to provide a safe place to work, to furnish safe machinery with which to work, and to properly instruct young and inexperienced employees in the use of dangerous machinery. It is not seriously contended that the machine in question was either complicated or dangerous. It was a very simple device and not difficult to operate. There is no pretense that the place was unsafe or that the machine was not suitable for the purpose intended. Nor is it averred in the statement of claim that appellant had failed to perform its full duty in all of these respects save only in the matter of giving adequate instructions. The issue is therefore narrowed by the pleadings to the single question, namely, was there a failure of duty on the part of appellant to properly instruct the boy in the use of the machine at which he was working when the accident' occurred. The learned trial judge instructed the jury that the evidence was not sufficient to sustain this allegation, and unless this court should hold that this was error there can be no recovery. The burden was on the plaintiffs not only to charge the particular negligence complained of but to prove it by sufficient testimony. The parties are bound by the pleadings and the courts cannot disregard them. It will not do to allege one ground upon which to sustain a recovery of damages for failure to perform a duty, and at the trial prove, or attempt to prove, failure to perform a different kind of duty, the breach of which was not alleged. The only negligence alleged in the case at bar was failure to adequately instruct, and the case went to the jury on the question of a defective machine. We agree with the view taken by. the learned trial judge that the evidence did not sustain the allegation as to inadequate instructions, and this should have been the end of the case. It was error to allow the case to go to the jury on an entirely different theory and upon a ground not set up in the pleadings. The accident was unfortunate and the consequences serious, but there can be no recovery in this or any other similar case except negligence be shown. The burden is always on the complaining party to allege the negligent act or acts relied on to sustain a recovery and at the trial to establish by sufficient evidence the facts alleged. This was not done in the present case, and failure to meet this burden defeats the right to maintain the action.

Judgment reversed and is here entered for defendant.


text:
    Gottlieb v. Abraham Lincoln Mutual Life Insurance Company, Appellant.

      Insurance — Life insurance — Payment of premiums — Days of grace— Failure to pay premiums — Forfeiture.
    Where a policy of life insurance provides that “after the first premium shall have been paid a grace of thirty days, during which the contract shall remain in force, will be allowed in the payment of premiums by the insured or by anyone for him,” and it appears that the insured paid the first premium and died without paying the second and within thirty days after it became due, the failure to pay the second premium within the days of grace does not involve a forfeiture of the policy.
    Argued March 30, 1909.
    Appeal, No. 9, Jan. T., 1909, by defendant, from order of C. P. No. 2, Phila. Co., Sept. T., 1908, No. 1,873, making absolute rule for judgment for want, of a sufficient affidavit of defense in case of Bernhard Gottlieb, Administrator of the Estate of Joseph Gottlieb, deceased, v; Abraham Lincoln Mutual Life Insurance Company.
    Before Mitchell, C. J., Fell, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on a policy of life insurance.
    Rule for judgment for want of a sufficient affidavit of defense.
    The opinion of the Supreme Court states the case.
    The court made absolute rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

      T. Elliott Patterson, for appellant.
    Promptness of payment of premiums is essential in the business of life insurance: Klein v. N. Y. L. I. Co., 104 U. S. 88-92.
    The assured can only take advantage of the days of grace at his own risk and if he dies before actual payment, the policy is gone: Rogers to use v. Capitol Life Ins. Co., 1 W. N. C. 589; Lantz v. Ins. Co., 139 Pa. 546; Want v. Blunt, 12 East, 183.

      Bernard Harris, for appellee.
    “Days of grace” are regarded in law as a matter of right and not as a mere favor: Bank of Washington v. Triplett, 26 U. S. 25; Taylor v. Life Assur. Society, 134 Fed. Repr. 932.
    The contract of insurance was a continuing contract, and did not lapse before the death of the insured: Worden v. Life Ins. Co., 39 N. Y. Super. Ct. 317.

      May 24, 1909:
    "While, as it has already been stated, there are no decisions directly on the point at issue decided by the appellate courts of Pennsylvania, there are, nevertheless, several decisions by the appellate courts in other states in favor of the appellee’s contention in this case, and there are likewise decisions by the federal courts bearing directly upon the point at issue: Kentucky Life & Accident Ins. Co. v. Kaufman, 102 Ky. 6 (42 S. W. Repr. 1104); Worden v. Life Ins. Co., 39 N. Y. Super. Ct. 317; Prudential Ins. Co. v. Devoe, 98 Md. 584 (56 Atl. Repr. 809); Homer v. Ins. Co., 67 N. Y. 478; McMaster v. Ins. Co., 78 Fed. Repr. 33; Taylor v. Life Assurance Society, 134 Fed. Repr. 932; Murray v. Ins. Co., 151 Fed. Repr. 539.
   Opinion by

Mr. Justice Elkin,

This is an action in assumpsit on a policy of insurance. The suit was brought by the administrator of the estate of the deceased insured person. The only question raised by the pleadings is whether the insurance contract was in force at the time of the death of the insured. The contract of insurance was what is known as a twenty payment life policy. One of the conditions or privileges written into the contract is the following: “After the first premium, shall have been paid a grace of thirty days, during which the contract shall remain in force, will be allowed in the payment of premiums by the insured or by any one for him.” The first annual premium was paid and the second was due August 5, 1908, but was not paid upon that date, nor at the time of the death of the insured, August 28, 1908. Under these circumstances appellant contends that failure to pay the annual premium when due, or at least prior to the death of the insured, relieves the company from liability on the insurance contract. The theory is, that failure to pay the premium on the date specified worked a forfeiture of the right to recover, and that the thirty days of grace in which to pay only constituted a privilege by which the insured could reinstate his forfeited insurance, but that the delay was at the risk of the insured and no liability attached to the company until the premium was paid and accepted. Some cases are cited in support of this contention, but they are easily distinguished on their facts from the case at bar. The line of cases referred to had to deal with policies of fire insurance for definite fixed periods, or with life insurance contracts in which no provision had been made that the policy should remain in force during the period, called days of grace, in which the insured could pay the overdue premium. In no case called to our attention, and indeed it seems impossible to believe there could be any such case, has it ever been held that when the policy in express terms provides that it shall remain in force during the thirty day period, it would be construed to mean that it did not remain in force. Such a construction would do violence to the rights of contracting parties. When the contract shall begin and end, how long and under what conditions it shall remain in force, and when it shall be forfeited all depend upon the terms of the contract itself. When the terms and conditions are plain and unambiguous there is nothing requiring judicial interpretation. In the case at bar the contract provides that the policy shall remain in force during the thirty day period and there is no room for construction. When the person insured died the policy by its own terms was in force and the appellant company is bound thereby.

Judgment affirmed.


text:
    Sanders v. Pennsylvania Railroad Company, Appellant.

      Negligence — Railroads—Responsibility for accident — Burden of proof —Evidence.

    1. In a negligence case where the defendant, a railroad company, alleges that the accident was due to the negligence of a crew of another railroad company operating a train of such company over defendant’s tracks under a traffic arrangement, the burden is upon the defendant to establish the facts necessary to shift its liability to the other company.
    2. Where a railroad company permits another railroad company to run cars upon its tracks, it is liable for damages caused by the negligence of the company enjoying the permissive use. Under such circumstances the arrangement for traffic rights is in the nature of a license, and the company enjoying the same is a licensee. The applicartion of the rule, however, depends largely upon the nature of the contract between the companies.
    3. In an action against a railroad company to recover damages for personal injuries at a grade crossing, it appeared that the safety gates at the crossing were under the control of the defendant. The train which caused the injuries belonged to another railroad company, but came upon the tracks of the defendant only after orders so to do had been given by the employees of the latter company, the rules and regulations of which the employees of the former company were subject to at the time of the accident. Held, that an action was properly brought against the defendant.
    4. In an action against a railroad company it appeared that the. plaintiff was riding in an automobile, operated by his son-in-law. There was evidence that the safety gates at the crossing where the accident occurred were raised, that there was no watchman on duty, that no warning was given, that the automobile stopped at a proper place and was immediately started again when a train man of the defendant motioned them to proceed, and that it was struck before it got across the tracks. Held, that the case was for the jury.
    Argued April 13, 1909.
    Appeal, No. 22, Jan. T., 1909, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1905, No. 1,323, on verdict for plaintiff in case of J. S. Sanders v. Pennsylvania Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Potter and Elicin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Lynch, P. J.
    At the trial it appeared that the plaintiff was riding on the evening of July 16, 1905, in an automobile operated by his son-in-law. As the machine approached a grade crossing at the intersection of Barney street and the defendant’s track in the city .of Wilkes-Barre it was seen that the safety gates were raised, and that no watchman was in attendance. The evidence for the plaintiff tended to show that as the machine approached the crossing it was stopped, or came nearly to a dead stop, but on a signal from a trainman it started over the crossing, and was struck by coal cars which were being backed on one of the tracks. There was also evidence that no warning of the approach of the cars was given. Other facts appear by the opinion of the Supreme Court.

      The court refused binding instructions for defendant.
    Verdict and judgment for plaintiff for $3,500. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      F. W. Wheaton, with him John McGahren and Henry W. Palmer, for appellant.
    Plaintiff’s burden was, not merely to prove the happening of an accident on the defendant’s property, but to prove that defendant’s negligence was the proximate cause of his injury: Pennsylvania R. R. Co. v. Sellers, 127 Pa. 406; Huey v. Gahlenbeck, 22 W. N. C. 190.
    The right of the Pennsylvania Railroad to permit the Delaware & Hudson Company to use its tracks is expressly conferred by the statute, and the effect of the arrangement was to create, as between the parties to it, the relation of lessor and lessee: Scziwak v.P. & R. R. R. Co., 4 Pa. Dist. Rep. 339.
    While the contributory negligence of the owner and driver of the automobile cannot be imputed to the plaintiff, the plaintiff is fully responsible for his own acts of negligence: Dean v. Penna. R. R. Co., 129 Pa. 514.

      John M. Garman, with him W. Alfred Valentine, for appellee.
    As against the appellee the Pennsylvania Railroad Company is liable although a Delaware and Hudson train may have caused the accident: Hanlon v. Turnpike Road Co., 182 Pa. 115; Pinkerton v. Traction Co., 193 Pa. 229; Atwood v. Ry. Co., 72 Fed. Repr. 447; Smith v. Ry. Co., 85 Mo. 418; Penna. R. R. Co. v. Sellers, 127 Pa. 406; Macon, etc., R. R. Co. v. Mayes, 49 Ga. 355; Toledo, etc., Ry. Co. v. Rumbold, 40 Ill. 143; Muntz v. Algiers, etc., Ry. Co., 64 L. R. A. (La.) 222; Davis v. Wabash, etc., Ry. Co., 26 Am. & Eng. R. R. Cases, 315; Keeney v. Campbell, 215 Pa. 530; Camblin v. W. & B. R. R. Co., 218 Pa. 54.
    The question of plaintiff’s contributory negligence was under the evidence properly submitted to the jury: Pyle v. Clark, 75 Fed. Repr. 644; Coleman v. R. R. Co., 195 Pa. 485; Robinson v. R. R. Co., 66 N. Y. 11; Jones v. R. R. Co., 202 Pa. 81; McCarthy v. R. R. Co., 211 Pa. 193; Fennell v. Harris, 184 Pa. 578; Bickel v. R. R. Co., 217 Pa. 456; Penna. R. R. Co. v. Horst, 110 Pa. 226; Ayers v. Ry. Co., 201 Pa. 124.
    May 24, 1909:
   Opinion by

Mr. Justice Elkin,

The first assignment seeks to convict the learned court below of error in not giving binding instructions for the defendant at the trial; and the second challenges the correctness of the ruling in refusing to enter judgment non obstante veredicto. The appellant contends that this case presents a question of law for the court and not of fact for the jury. This contention is predicated upon two grounds: first, that the injuries complained of resulted from collision with a train of cars moved by and belonging to another railroad company whose employees were in charge of the train, and that if there was any negligence in the case the company owning the train of cars and employing the servants in charge of the same is alone responsible; and second, that under the facts proven at the trial appellee was so clearly guilty of contributory negligence as to warrant the court in holding as a matter of law that there can be no recovery of damages. As to the first proposition the testimony is meager and unsatisfactory. It does not clearly show what the traffic arrangement between the two companies was. The letter of the superintendent of the appellant company dated September 10, 1902, refers to a former letter dated July 9, 1902, which contained the terms and conditions upon which trackage rights would be given, but this letter is not in evidence, and therefore the court is not in position to determine what the contractual trackage rights of the other company are. The testimony does show that the right of way, roadbed and railroad tracks belong to and are under the control and management of the appellant company. The accident occurred at a grade crossing on the tracks of the Pennsylvania Railroad Company, and this makes out a case of primary responsibility if negligence be shown. If for any sufficient reason this primary responsibility may be avoided, the burden is upon the company denying it to estabfish the facts necessary to shift it. In the present case the evidence is not sufficient to shift the burden. The statement in the letter of September 10,1902, relating to the assumption of and indemnity against all claims for personal injuries may very properly be considered in determining the ultimate responsibility between the contracting railroad companies, but cannot be used to defeat the right of the appellee to recover for injuries against the company primarily liable for the same.

Again, the general rule is, that where a railroad company simply permits another railroad company to run cars upon its tracks it is liable for damages caused by the negligence of the company enjoying the permissive use. Under such circumstances the arrangement for trackage rights is in the nature of a license, and the company enjoying the same, is a licensee. Of course, the application of the rule depends largely upon the nature of the contract between the companies. The lessor company may, and often does, transfer to the lessee company for a term of years, all of its property under a contract which gives the lessee exclusive control and management of the whole system. In such a case, depending upon the facts and circumstances, it may be that an action for personal injuries should be brought against the operating company. Then, too, there may be such a joint construction and use of tracks, under joint rules and regulations, as to make each company enjoying the joint use, liable for its own negligence. These are exceptional cases and depend upon their own peculiar facts. No such question arises under the facts of the case at bar. The safety gates at the crossing were under the control of the appellant company. While the train which caused the injuries belonged to another railroad company, it came upon the tracks of the appellant company only after orders so to do had been given by the employees of the latter company, the rules and regulations of which the employees of the former company were subject to at the time of the accident. We therefore hold under these facts that the action can be maintained against the appellant company. It may be that the plaintiff might have elected to have brought his suit against the Delaware and Hudson Company, but we are not dealing with that question now and it is not necessary to pass upon it.

As to the second proposition, we do not agree with the contention of the learned counsel for appellant, that the evidence showed such a clear failure on the part of the appellee to perform his duty on approaching the crossing as to justify the court in holding as a matter of law that there could be no recovery on the ground of contributory negligence. No useful purpose can be served by reviewing the testimony on this branch of the case. We are all of opinion that it was sufficient to go to the jury and that the learned trial judge committed no error in its submission.

Judgment affirmed.


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

      Negligence — Railroads—Crossing—Sudden emission of steam — Fright of horse — Evidence—Case for jury.

    Where a railroad company permits an engine to stand at a grade crossing in such a position as to cover the whole of the sidewalk and extend into the street several feet, and while in this position causes steam to be blown off from the engine without any warning or notice, and thus frightens a horse attached to a carriage passing in front of the engine at the time, and as a result the driver of the horse is injured, a verdict and judgment against the company for the injuries sustained is proper.
    Argued April 13, 1909.
    Appeal, No. 41, Jan. T., 1909, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1904, No. 486, on verdict for plaintiff in case of Morgan Weller v. Lehigh Valley Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover -damages for personal injuries. Before Fuller, J.
    The facts are stated in the opinion of the Supreme Court.

      May 24, 1909:
    A^erdict and judgment for plaintiff for $5,000. Defendant appealed.

      Error assigned was in submitting the case to the jury.

      Wheaton, Darling & Woodward, for appellant.
    In cases of fright of horse by blowing off steam the burden is on the plaintiff to show that the emission was unnecessary: Hanlon v. Turnpike Road Co., 182 Pa. 115; Drayton v. R. R. Co., 10 W. N. C. 55; Farley v. Harris, 186 Pa. 440; Steiner v. Traction Co., 134 Pa. 199; Webb v. Ry. Co., 202 Pa. 511; Abbot v. Kalbus, 74 Wis. 504 (43 N. W. Repr. 367); Kepner v. Traction Co., 183 Pa. 24.

      John M. Garman, with him W. Alfred Valentine, for appellee.
    It is negligence to permit an engine to let off steam at an improper place: Borst v. Ry. Co., 4 Hun (N. Y.), 346; Penna. R. R. Co. v. Horst, 110 Pa. 226; Williams v. Ry. Co., 48 Am. & Eng. R. R. Cases (N. S.), 343; Geveke v. R. R. Co., 57 Mich. 589 (24 N. W. Repr. 675); Webb v. Ry. Co., 202 Pa. 511; Foster v. Lumber Co., 43 Am. & Eng. R. R. Cases (N. S.), 282; Manchester, etc., Ry. Co. v. Fullarton, 14 C. B. (N. S.) 53; Texas Midland R. R. Co. v. Cardwell, 24 Am. & Eng. R. R. Cases (N. S.), 892; Fay v. Ry. Co., 131 Wis. 639 (111 N. W. Repr. 683); Boothby v. R. R. Co., 90 Me. 313 (38 Atl. Repr. 155); Presby v. G. T. Ry. Co., 66 N. H. 615 (22 Atl. Repr. 554); Keech v. Rome, 59 Hun (N. Y.), 617; Andrews v. Ry. Co., 77 Iowa, 669 (42 N. W. Repr. 513); Devlin v. Beacon Light Co., 198 Pa. 583.
   Opinion by

Mr. Justice Elkin,

The single question raised by this appeal is whether the facts established at the trial show such a failure of duty on the part of appellant as to make it liable in damages on the ground of negligence. An engine belonging to defendant was left standing at a grade crossing in the city of Wilkes-Barre so to as cover the entire sidewalk and to extend out into the street several feet. How long the engine had stood there is not definitely fixed, because the offer to prove this fact was refused on the ground that it was immaterial. The exclusion of this testimony has not been assigned for error, and since the plaintiff recovered a judgment in the court below it is not important to now consider whether or not it was properly excluded. It is an answer, however, to the argument made for appellant that there was no evidence to show how long the engine stood upon the crossing. There is no such evidence, because the offer was refused on the objection of counsel for appellant. While the engine was standing in this position appellee in a one horse carriage approached the crossing. Just as his horse was passing in front of the engine, steam was suddenly blown off, which caused the horse to become frightened and run away. The plaintiff was thrown from his carriage and seriously and perhaps permanently injured. The evidence shows that the train to which the engine was attached was not being moved at the time of the accident and that there was other space on the track some distance from the crossing where it could have stood. Under these circumstances it must be determined whether there can be a recovery. The learned counsel for appellant rely upon a line of cases in which it has been held that the emission of steam and smoke are the necessary accompaniment of the use of locomotive engines, and that it is only in exceptional cases where negligence can be imputed to railroad companies because horses on the highway are frightened by escaping steam. As a general proposition this may be accepted as a correct statement of the rule. It' has been frequently held that the running of locomotives in the usual method or of blowing off steam for proper purposes, is not negligence. This is a sound rule and there is no disposition to disturb it. An examination of the cases cited by appellant will show that this rule has been followed and each case properly decided under its particular facts. We are not convinced, however, that the case at bar is ruled by any of the cases cited, or that anything said in those cases was intended to announce a principle which would deny the right to recover under the facts here presented. The rule is want of care under the circumstances. It is true that a railroad company has ordinarily the right to the exclusive use of its tracks and right of way, and that it enjoys the privilege of running its trains and operating its engines according to its rules and regulations for every proper purpose. At grade crossings the situation is somewhat different. The railroad company does' not have the exclusive use, and the rights of the public must be considered. The railroad company on one hand and a traveler on the highway on the other each has a duty to perform respecting the rights of the other. In the present case the appellee was driving on a street where he had a right to be. He had a right to drive his team over the crossing, and it is not contended that he was negligent in the performance of any duty imposed upon him. He saw an engine standing at rest without showing any signs of moving. It extended out into the street. It was necessary for him to pass it. He attempted to do so and just as he got in front of the engine the steam was suddenly and without warning blown off with such force as to frighten his horse and cause the injuries complained of. We think under these circumstances it was for the jury to determine whether the railroad company in the exercise of its rights and privileges had due regard for the rights of the appellee by permitting the steam to be blown off without any warning or notice just as his horse passed in front of the engine.

Judgment affirmed.