text:
    Breen v. Pittsburg, Harmony, Butler & New Castle Railway Company, Appellant.

      Street railways — Boroughs—Borough consent — Location of tracks— Sidewalk — Right of abutting owner — Equity.
    An owner of property abutting on a street has a standing to maintain a bill in equity to restrain a street railway company from laying its tracks on a sidewalk in front of his premises where the borough ordinance merely gave to the railway company the right to use the street, together “with the right to construct such switches, curves, crossovers and turnouts as are necessary for the operation of its railway,” without any grant of a right to use the sidewalk and when there is an invasion of the property of an abutting owner by malting a cut of two or three feet in length below established grade and extending into complainants' property used as a sidewalk over eight feet.
    Argued March 24, 1908.
    Appeal, No. 28, Oct. T., 1908, by defendant, from decree of O. P. Lawrence Co., Dec. T., 1907, Ho. 2, In Equity continuing preliminary injunction in case of Richard Breen et al. v. Pittsburg, Harmony, Butler & New Castle Railway Company.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Bill.in equity for an injunction.
    William E. Porter, P. J., filed an opinion in which he stated the facts as follows:
    The plaintiffs own land forty feet wide fronting on Taylor street in the city of New Castle. The defendant has the right to construct a street railway upon said street. It appears that in constructing a street railway upon the street the defendant has made an excavation beginning at a point on the curb line about thirty feet east of the west line of the plaintiffs’ property and running thence westward diagonally across the space between the curb line and the property line until at the west line of plaintiffs’ property the excavation extends toward the property line a distance of about eight and a half feet from the curb line and to within about eighteen inches of the property line.
    Taylor street is fifty feet wide and by ordinance Ho. 997 the width of all sidewalks between the property line and the curb line is fixed at one-fifth of the width of the street. The width of the sidewalks on Taylor street are, therefore, ten feet.
    The sidewalk or space between the property line and the curb line has never been paved in front of the plaintiffs’ property. Just west of plaintiffs’ property is a forty foot lot upon which defendant has the right to construct its railway, and just west of this lot is Heal street upon which the defendant has the consent of the city to build its street railway.
    Crossing Heal street at its intersection with Taylor street and running thence westward diagonally across Taylor street in front of the forty foot lot above-mentioned as well as that of the plaintiffs, are the tracks of a steam railroad. The angle at which the steam railroad tracks cross Taylor street appear to be such that the defendant company cannot construct its line onto the lot next to Neal street and give a proper clearance without building upon the ground between the curb line and the property line in front of the plaintiffs’ property.
    A municipality may consent to the construction of a street railway upon the sidewalk as well as any other part of the street or, as held in McDevitt et al. v. Gas Co., 160 Pa. 367, and Provost v. Water Co., 162 Pa. 275. A municipality has the same control over the sidewalk that it has over the carriage way of the street.
    But has the city of New Castle ever consented, authorized or directed the construction of a street railway by the defendant company between the curb line and the property line in front of plaintiffs’ property ? It is true that by ordinance No. 1973, the city granted the right to the P., II., B. & N. C. street railway company to construct its line of street railway “along Taylor street to Neal street” and in the absence of any qualification or other ordinance the defendant would have the right to construct its line of tracks where the excavation has been made.
    But in the ordinance granting the right to the defendant company to construct its lines of railway upon Taylor street it is provided that the rights therein granted are “given subject to the conditions, provisions and stipulations contained in Ordinance No. 1364 of said City ” known as the general street railway ordinance.
    The general street railway ordinance provides, inter alia, “ Sec. 3. Single lines of track shall be laid in the center of the street unless otherwise directed or authorized by Councils. Where double lines of track are laid, they shall be placed as close together as practicable, and each shall be equally distant from the center of the street, reserving, however, to Councils, the right to make any modification of these provisions which they may deem proper ” etc. *
    “ Section 4. The said Company shall have the right to construct such switches, curves, cross overs and turnouts as are necessary for the operation of its railway, subject, however, to the control of the councils as to the location of switches and turnouts.”

      There does not appear in this case any direction or authority of councils to lay the tracks other than as provided in the general street railway ordinance, and until councils shall have given such direction or authority we must sustain the contention of the plaintiffs to the extent at least of directing that the case shall proceed to final hearing.
    It is true that where an ordinance requires that a street railway shall be constructed in the center of a street such a provision should not be construed strictly, but means that the middle of the street rather than the sides thereof is to be occupied : 3 W eimer’s Railroad Law, 473.
    Now, October 15, 1907, the motion to dissolve the preliminary injunction is overruled and case directed to be proceeded in to final hearing.

      Error assigned was the decree of the court.

      J: Norman Martin, with him Walter Lyon, for appellant.
    The separation of the sidewalk from the cartway by a line of curbing is for the security of that part of the public that passes along the street on foot and for no other purpose. “The municipality has the same control over the sidewalks that it has over the cartways: ” Livingston v. Wolf, 136 Pa. 519 ; McDevitt v. Gas Co., 160 Pa. 367 ; Provost v. Water Co., 162 Pa. 275 ; Rafferty v. Central Traction Co., 147 Pa. 579.

      Robert K. Aiken, with him James J. Igoe, for appellees.
    A street car is a vehicle or carriage and its proper place is in the cartway with other vehicles and carriages and not on the sidewalk ; the cartway being for vehicles and the sidewalk for footmen and it is with this understanding and meaning that the word “ street ” is used in the ordinances : Shady Avenue, 34 Pa. Superior Ct. 327 ; Com. v. Forrest, 170 Pa. 40 ; Refiner's App., 100 Pa. 182 ; Bridgewater Borough v. Traction Co., 214 Pa. 343.
    The plaintiffs have and will sustain special injury and damage by the construction and operation of the railway on the sidewalk and, therefore, they are entitled to the remedy by injunction : Thomas v. Inter-County St. Ry. Co., 167 Pa. 120 ; Edwards v. Pittsburg Junction R. R. Co., 215 Pa. 597.

      April 20, 1908 :
   Opinion by

Mr. Justice Elkin,

If the only question involved in this case was the compliance of the street railway company with the ordinance under which it was constructing its lines on certain streets in the city of New Oastle, it is clear complainants would have no standing to ask the intervention of a court of equity. Under the powers of its charter, and with the consent of the municipality, the appellant company enjoyed the right to construct its lines upon the designated streets without compensation to abutting property owners, and such construction, not being an additional servitude on land already dedicated to street purposes, is not the taking of private property within the meaning of the rule which entitles a person who has sustained a special injury to seek redress in equity. If the tracks of the respondent company had been laid in the street proper, that is to say, in the cartway between the curb lines, as clearly intended by the ordinance, the city alone could raise the question of compliance with its provisions: Rafferty v. Traction Co., 147 Pa. 579 ; Provost v. Water Co., 162 Pa. 575. It is earnestly contended that the ordinance did authorize what was attempted to be done in the present case by giving the right to construct such switches, curves, crossovers and turnouts as are necessary for the operation of the railway. These words must be read and understood in connection with the subject-matter of the grant, which was to construct the railway upon the street, and not upon the sidewalk, and the switches, curves, crossovers and turnouts authorized to be constructed are such as may be necessary to the operation of the rail way in the street proper between the curb lines. We therefore hold that the ordinance did not give the right to construct the railway by a curved line over the sidewalk and through the property of the complainants, and that the attempt to do so by making a cut from two and one-half to three feet in depth, and extending into the property of the complainants set apart as a sidewalk at one point eight and one-half feet, is such an invasion of their property rights without lawful authority as equity will enjoin : Thomas v. Ry. Co., 167 Pa. 120.

Decree affirmed at cost of appellant.


source: Caselaw Access Project

author: Mr. Justice Elkin,

license: Public Domain

text:
    Stehle, Appellant, v. Jaeger Automatic Machine Company.

      Negligence — Master and servant — Employment of minors under fourteen — Evidence—Act of May 2, 1905, P. L. 352 — Constitutional law— Police power.

    It is within the power of the legislature to fix an age limit below which children shall not be employed in dangerous kinds of work, and an employer who violates the law by engaging a child under the statutory age does so at his own risk, and in an action of trespass for personal injuries sustained in such employment, the master cannot set up as a defense either the assumption of risk or the contributory negligence of the child servant.
    The fact that the act of May 2, 1905 is penal in chare cter, and that violations of its provision are punishable by fine or imprisonment, does not render such remedies exclusive, and does not supersede the right of action for damages in a civil proceeding.
    The employment of a boy under fourteen years of age to do any kind of work in an establishment prohibited by sec. 2 of the Act of May 2, 1905, P. L. 352, and his employment to clean or oil machinery while in motion, prohibited by sec. 4, are both questions of fact to be submitted to the jury as evidence of negligence, and if the injury results by reason of the employment prohibited by law, there can and should be a recovery in the case; and this is so although the master may have given the boy proper instructions as to his work.
    Argued March. 25, 1908.
    Appeal, No. 54, Jan. T., 1908, by plaintiffs, from judgment- of O. P. No. 4, Phila. Co., June T., 1906, No. 4,964, on verdict for defendant in case of George Stehle, a minor, by his father and next friend, George Stehle, and the said George Stehle in his own right v. Jaeger Automatic Machine Company.
    Before Mitchell, C. J., Bbowh, Mestbezat, Potteb and Elees, JJ.
    Reversed.
    Trespass to recover damages for personal injuries to a boy under fourteen years of age.
    Before Cabe, J.
    The opinion of the Supreme Court states the case.
    Yerdict and judgment for defendant. Plaintiffs appealed.

      Error assigned among others was (15) as follows :
    The trial judge erred in refusing the plaintiffs’ request, at the close of the charge and before the jury retired, to further charge the jury upon the provisions of the Act of May 2,1905, P. L. 852, inasmuch as the trial judge did not refer in his general charge to said act, and therein said charge was inadequate, and said request and said answer were as follows :
    Counsel for plaintiffs requests the learned trial judge to charge the jury upon the provisions of the Act of May 2, 1905, P. L. 352, referring particularly to sections 2, 4, 5, 11 and 28.
    The Court: That request is refused, because it was not presented at the proper time, under the rule of court.

      William F. Brennan, for appellants.
    The Act of May 2, 1905, P. L. 252, has not been passed upon by the appellate courts. A similar Act, that of June 2, 1891, P. L. 176, relating to employment of children in coal mines, was lately considered by this court: Lenahan v. Pittston Coal Mining Co., 218 Pa. 311.
    Acts of assembly similar to this Act' of May 2, 1905, P. L. 352, have been passed by other states, and have been applied by courts of those states to facts similar to those now under consideration : Narramore v. Cleveland, etc., Ry. Co., 96 Fed. Repr. 298 ; Brower v. Locke, 67 N. E. Repr. 1015 ; Perry v. Tozer, 97 N. W. Repr. 137 ; Marino v. Lehmaier, 66 N. E. Repr. 572 ; Gallenkamp v. Garvin Machine Co., 86 N. Y. Supp. 378 ; Sterling v. Union Carbide Co., 105 N. W. Repr. 755 ; American Car & Foundry Co. v. Armentraut, 214 Ill. 509 (73 N. E. Repr. 766); Woolf v. Nauman Co., 18 Am. Reg. Rep. 405.
    As to the fifteenth specification, it is submitted that the plaintiffs’ request to the trial judge to charge the jury upon the provisions referred to in the act of May 2, 1905, was presented at the proper time; because the act was offered and admitted in evidence, and the trial judge failed to refer to the act in his general charge. Counsel for appellants, believing that the trial judge had overlooked the act and feeling that the charge was incomplete without reference to it, called his attention thereto at the end of his chkrge. Counsel has not found a rule of court bearing upon this point, as indicated by the trial judge. This court has said, however, that where counsel desires the trial judge to charge the jury on matters which he has failed to mention, counsel should call his attention thereto before the jury leave the box. This was done in this case: Com. v. Zappe, 153 Pa. 498 ; Kehoe v. Traction Co., 187 Pa. 474.

      Francis Shu-rik Brown, with him Ira Jewell Williams and Alex. Simpson, Jr., for appellee.
    April 20, 1908 :
   Opinion by

Mr. Justice Elkin,

The error which ran through the whole trial in the court below was failure to give effect to the Act of May 2, 1905, P. L. 352. The case was tried under the rules of law applicable to cases of negligence where master and servant, both being competent to enter into a contract of employment and each presumably capable of appreciating the dangers thereof, are charged with the duty of exercising due care, the master in providing reasonably safe appliances and machinen'-, and the servant of using ordinary care to avoid open and obvious dangers. These rules have no application to the facts of the present case. The boy appellant was born June 6, 1892; was first employed by appellee company in April, 1905 ; and was injured January 27, 1906, being at the time of the injury under fourteen years of age. Section 2 of the act of 1905, provides that no child under fourteen years of age shall be employed in any establishment to which the provisions of the statute apply, and section 1 requires that “ no minor under sixteen years of age shall be permitted to clean or oil machinery while in motion or to operate, or otherwise have the care or custody of, any elevator or lift.” It seems to be conceded that the place where the boy worked was an establishment within the meaning of the act, and hence the case must be considered in the light of the statute regulations and requirements. That the legislature, under its police power, has the authority to enact such legislation is not an open question in this state. In the recent case of Lenahan v. Pittston Coal Mining Company, 218 Pa. 311, we held that it was within the power of the legislature to fix an age limit below which children should not be employed in dangerous kinds of work, and that an employer who violated the law by engaging a child under the stautory age did so at his own risk, and in an action of trespass for personal injuries sustained in such employment the master cannot set up as a defense either the assumption of risk or the contributory negligence of the child servant. This seems to be the rule adopted by the courts of other jurisdictions as well as our own: Sipes v. Michigan Starch Company, 100 N. W. Repr. 441. The suggestion made by the learned counsel for appellee that a violation of section 2, which prohibits the employment of children under fourteen years of age, can only be punished as a misdemeanor as provided in section 23, cannot be accepted as a sound rule of law. It is true the statute is penal, and violations of its provisions, upon conviction, are punishable by fine or imprisonment, but these remedies are not exclusive and do not supersede the right of action for damages in a civil proceeding: Narramore v. Railway Company, 96 Fed. Repr. 298 ; Railroad Company v. Lambright (Ohio), 29 W. Law Bulletin, 359. Whether the employment of a child in a haz-' ardous occupation, when such employment is prohibited by law, is negligence per se, or only evidence of negligence to be considered in connection with other facts tending to show negligence, the authorities are not entirely agreed, but for the purpose of the present case we hold that the employment of the boy under fourteen years of age to do any kind of work in the establishment, prohibited by section 2, and of his having been employed to clean or oil machinery while in motion, prohibited by section 4, were both questions of fact to be submitted to the jury as evidence of negligence, and if the injury resulted by reason of the employment prohibited by law there can and should be a recovery in the case. In the view thus taken of the act of 1905, it is not important to consider the assignments of error relating to the duty of an employer to properly instruct a young and inexperienced employee in the use of dangerous machinery. As to the prohibited employment the master is not relieved by giving instructions.

We do not consider it necessary to consider in detail the numerous assignments of error, because they nearly all relate wholly or in part to the force and effect to be given the act of 1905, and with this fundamental and controlling question now settled, no difficulty will be experienced in the proper application of the rules of law applicable thereto when the case is again tried.

Judgment reversed and a venire facias de novo awarded.


text:
    Ballantine, Appellant, v. Cummings.

      Conspiracy — Fraud—Evidence—Burden of proof.

    Conspiracy is a combination or agreement between two or more persons to do an unlawful thing, or to do a lawful thing in an unlawful manner.
    In an action of trespass for damages claimed to have been suffered by reason of an alleged conspiracy fraudulently and maliciously entered into by defendants to cheat and defraud the public in general, and the plaintiff in particular, in order to sustain a recovery, the burden is on the plaintiff to prove by sufficient testimony that such a conspiracy was entered into in the first place, and that as a result of the fraudulent acts done and false statements made for the purpose of furthering the schemes to defraud, he was injured.
    A conspiracy to defraud on the part of two or more persons means a common purpose supported by a concerted action to defraud, that each has the intent to do it, and that it is common to each of them, and that each understands that the other has that purpose.
    A conspiracy may be proven either by direct and positive testimony showing that a collusive agreement had been entered into to do an unlawful thing, or by acts and circumstances sufficient to warrant an inference that the unlawful combination had been in point of fact formed for the fraudulent purpose charged, and when circumstantial evidence is relied on to prove the conspiracy its sufficiency must first be determined by the court.
    In a suit alleging conspiracy between two or more persons the foundation of the action is the unlawful combination. Failure to prove the unlawful combination defeats the right to recover. The unlawful combination, like any other substantive fact, must be established by sufficient relevant testimony.
    When testimony is not direct and positive, but where subsequent acts and circumstances are relied on to establish the conspiracy, the first duty rests with the court to say whether the proven acts and circumstances, even if believed, are sufficient in law to establish in point of fact that the unlawful combination had been entered into by the parties charged or two or more of them at some prior date. If the subsequent acts do not show, or tend to show, the prior unlawful combination and purpose, the plaintiff has failed to make out his case and it is the duty of the court to say so.
    When conspiracy is alleged it must be proven by full, clear and satisfactory evidence.
    While it is permissible to prove subsequent acts from which the conspiracy itself may be inferred, when such acts are relied on to establish the conspiracy they must be such as to clearly indicate the prior collusive combination and fraudulent purpose, not slight circumstances of suspicion upon which a jury might guess or conjecture as to the fact of such unlawful combination ever having been entered into, but they must be such as to warrant the belief and justify the conclusion that the subsequent acts were done in furtherance of the unlawful combination and in pursuance of the scheme to defraud. The subsequent acts must negative the idea of a lawful undertaking or purpose, and must tend to show the prior unlawful combination.
    A conspiracy must be proven by substantive facts, not by disconnected circumstances, any one of which, or all of which are more consistent, or just as consistent, with a lawful purpose as with an unlawful undertaking.
    Where the conspiracy charged was a fraudulent combination by which the plaintiff was induced to invest in the preferred stock of a corporation at a price in excess of its real value, evidence as to the sale of the common stock of the corporation by the defendants on the stock exchange is inadmissible where there is no offer to show that the sales of common stock affected the value of the preferred stock, or that it was part of a conspiracy to cheat and defraud, or that when the preferred stock was purchased the price paid for the same did not represent its then market value, or that the plaintiff relied on the quotation of the common stock when he purchased the preferred shares at private sale.
    Argued April 2, 1908.
    Appeal, No. 31, Jan. T., 1908, by plaintiff, from judgment of C. P. Ho. 1, Phila. Co., Deo. T., 1900, Ho. 130, on verdict for defendants in case of Charles M. Ballantine v. George K. Cummings et al.
    Before Mitchell, C. J., Mestbezat, Potteb, Elkin and Stewabt, JJ.
    Affirmed.
    Trespass for conspiracy.
    Before Magill, J.
    At the trial when plaintiff was on the stand he was asked this question:
    Mr. Bracken : “ Q. Had you any knowledge, prior to your purchase in March, 1899, of the listing of the common stock of the company upon the Philadelphia Stock Exchange ? ”
    Mr. Graham: The only stock involved here is preferred stock. I object'to any' evidence of the listing of the common stock. It is not in issue, and the preferred stock was not a listed stock at the time of the purchase of this stock, nor for six months afterwards.
    The Court: I will sustain the objection at this stage of the case. Exception. [1]
    J. Bell Austin was examined as follows : ,
    “ Q. What is your business ? A. Secretary and treasurer of the Philadelphia Stock Exchange. Q. Did you hold that position in January, 1899? A. Yes, sir. Q. What is the Philadelphia Stock Exchange ? A. A place where stocks and bonds are bought and sold. Q. I mean in respect to its membership. It is an organization, isn’t it, of brokers for the sale and purchase of stocks and bonds? A. Yes, sir. Q. Have you with you any papers that were filed with the Philadelphia Stock Exchange by the Daylight Prism Company ? A. I think so, yes. Q. Will you please produce them. (Witness produces papers.) Q. One of the papers you produced is entitled at the head, Philadelphia Stock Exchange, stock application for the listing of stock dated August 1,1899 ? A. Yes, sir. Q. Have you an application of an earlier date ? A. That is preferred stock, isn’t it ? ”
    Mr. Graham: Yes.
    “A. Yes, that is for the common stock. Q. You also produce an application dated January 13, 1899, for the listing of the common stock ? A. The common stock ? Q. On the Philadelphia Stock Exchange. Was that delivered to you on or about that date ? ”
    Mr. Graham : I object to all inquiries relating to the listing and sale of common stock.
    The Court: I cannot view this offer of the listing of this common stock as material to this issue. I sustain Mr. Graham’s objection. Exception. [2]
    Mr. Bracken : I offer to prove from the record made by the witness of the daily sales in the Stock Exchange of common stock made during the period from the listing, January, 1899, down to the date of purchase of the plaintiff’s stock, to be followed by evidence that those sales correspond with sales made by brokers for G. K. and J. E. Cummings, the defendants, one to the other.

      Objected to as irrelevant and immaterial, and not pertinent to the issue.
    Objection sustained. Exception. [3]
    Patrick Henry was examined as follows :
    Mr. Bracken : “ Q. Are the books you have produced here kept under your supervision? A. Yes, sir. Q. And have you several bookkeepers who make the entries from time to time ? A. Yes, sir. Q. Have you an account in one of these books with either J. E. or G. 3L Cummings ? ”
    Objected to.
    The Court: As to the entries in these books which the witness produces, he is not competent to testify, but the real question I suppose is that which will follow, namely, were there transactions between DeHaven and Townsend as brokers, and G. K. Cummings and J. E. Cummings in common stock of this company during a certain period ; is that right ?
    Mr. Bracken : That is undoubtedly what I propose to do, to prove just what the dealings were in common stock during the period in question on the part of one or the other of the defendants through DeHaven and Townsend as their broker or as his broker.
    The Court: Then any technical question to the books themselves is not pressed at this time.
    Mr. Graham: I feel that it is impossible for this witness to prove anything of that nature. In the first place your honor would not admit evidence of dealings coming from books of other people as against us, against the defendants in this case, and if he wants to prove transactions he would have to go and prove the identity of the man and the transaction, too, before it would be admissible in evidence here, but I will not press the technical objection, which I am sure is one that could not be surmounted, but meet the evidence on its merits, the question of whether this is admissible testimony, even if he had established proof of these sales.
    Mr. Bracken: I don’t know any better proof under the law than entries made in books of brokers, made in the due course of business, where you prove the entries. Probably you must call the people who made the entries, but having done that the books are competent evidence in any controversy of this sort. They are not evidence in favor of the person who made the entries as against the defendant, but in a controversy as between third persons, books made up in due course of business and properly proved and authenticated have always been held to be good evidence of the facts that they show.
    The Court: The objection to the offer of the sales of common stock during this period with which the defendants had to do is sustained. Exception. [4]
    Hugo H. Ditman was examined as follows :
    Mr. Bracken : I offer to prove by this witness, who was the bookkeeper and connected with Gillmán and Finninger, brokers on the Stock Exchange in 1899, that between the dates of the listing of the common stock of the Daylight Prism Company and the date of the purchase of the preferred stock by the plaintiff, Gillman and Finninger both bought and sold large amounts of common stock on behalf of Mr. George K. Cummings and Mr. J. E. Cummings, and that sales were made on certain dates by one to the other.
    Objected to on the ground formerly stated.
    Objection sustained. Exception. [5]
    J. E. Cummings, called for cross-examination, was asked this question:
    Mr. Bracken : “ Q. Will you state whether or not, prior to March 19, 1899, after the date of the organization of the company, you made any sales or purchases of the common stock of the Daylight Prism Company of America ? ”
    Objected to.
    Objection sustained. Exception. [6]
    Joseph H. Straub was examined as follows :
    Mr. Bracken: I offer to prove by the witness that, as a stock broker, his firm represented G. K. and J. E. Cummings, during the period from the listing of the stock and prior' to April 20, 1899, and that during that period he purchased and sold common stock of the Daylight Prism Company on behalf of both of the defendants, and that the sales thus made were duly advertised in the sales made from day to day on the Philadelphia Stock Exchange, and that it will be followed by proof that these advertisements came to the notice of the-plaintiff.
    Mr. Graham : “ Q. Had G. IL Cummings any account with your firm ? A. I don’t know that he had ; I never traded for him ; the only account I had was with Mr. J. E. Cummings. I did not keep the books ; I only executed the orders on the Exchange, and I only knew Mr. Cummings there (indicating); I did not know the other brother in a business way; I never got an order from him, I don’t know that we did. I did not know him in any business transaction.”
    Mr. Graham : The offer is objected to.
    Objection sustained for the reasons stated in answer to former objections to the same offer as to other witnesses. Exception. [7]
    C. E. Schmidt, a witness called on behalf of the plaintiff, was asked this question :
    “ Q. "Will you state whether or not, in January of 1899, you had any conversation with either G. K. or J. E. Cummings with reference to the purchase or sale of common stock on the Philadelphia Stock Exchange ? ”

    Mr. Graham : You may answer, yes or no. “ A. Yes.”
    Mr. Bracken : “ Q. With which one had you any conversation ? A. G. K. Cummings. Q. State what the conversation was.”
    Objected to.
    The Court: “ Q. This is with 'relation to common stock ? A. Common stock.”
    Objection sustained. Exception to plaintiff. [8]
    The court charged in part as follows :
    The allegation of the plaintiff is that the defendants, while officers, directors and stockholders of the Daylight Prism Company of Pennsylvania, a corporation under the laws of West Virginia, fraudulently and maliciously conspired together to cheat and defraud the public, by inducing members thereof to purchase stock of the company:
    1. By making and publishing false statements that dividends had been declared out of earnings of the corporation, when, in fact, no dividends had been earned, and by paying out of the capital stock, sums of money purporting to be dividends declared out of profits.
    2. By making, through various brokers, fictitious sales and purchases to and from one another of the stock of the corporation, for the purpose of creating a fictitious market value for the stock, so as to deceive the public into the belief that the stock had a value which, in fact, it did not possess.
    3. By falsely and fraudulently representing to the public that the preferred stock had been so issued, that upon dissolution of the corporation, the preferred stock would participate in the distribution of assets in priority, to the common stock,— that is to say, that the preferred stock was entitled to preference in payment of principal as well as dividend out of the assets of the corporation, before the common stock would be entitled to participate at all in the assets.
    The plaintiff avers that these alleged false statements were brought to his knowledge and that he believed them to be true. And that in this belief, he purchased on March 23, 1899, 100 shares of preferred stock of the company at $65.00 per share, and on April 20,1899, 200 shares of preferred stock of the company at $70.00 per share, for which he paid in all $20,500, all of which stock he alleges to have been worthless, both at the time of the purchase and at the present time, or, rather, at the time of bringing this suit, whereby he sustained a loss of the full sum paid by him for the stock.
    Counsel for the plaintiff, in his, behalf, at the trial has disclaimed any right to recover from the four defendants, Carr, Binggold, Schmidt and Holden, all of whom he absolves from any part in the alleged conspiracy. These four men were directors of the company at the time of the declaration of the alleged unlawful dividends, and appear to have voted in favor thereof. The four directors named being eliminated from the case, the question to be determined is, — did the three remaining defendants, George K. Cummings, Henry M. Cummings and John E. Cummings, or any two of them, commit the offense complained of, and, if so, was the plaintiff deceived and misled by their combined act to his loss and damage ? Of the three defendants last named, Henry M. Cummings only was an officer and director of the company. John E. Cummings was the general manager, and George K. Cummings was a stockholder only.
    The charge or allegation, then, is that they, the three Cummings, were guilty of a conspiracy to cheat and defraud in the manner before referred to, and that the plaintiff was thereby deceived to his injury and loss.

      With relation to the second and third points, there is no evidence of a substantial character. With relation to the first point, there is evidence in the testimony of Mr. Butler, an expert accountant, that at the time the dividends of January 7, 1899, and April 19, 1899, were declared, certain items in the books were improperly considered and carried as assets; and certain other items should have been considered as liabilities which were not so considered; and that by making these necessary additions to the one side and deductions from the other side of the accounts, it is shown that at the time of the declaration of the dividends, the corporation did not properly have net earnings or profits on its business, out of which it could lawfully pay dividends without depleting its capital.
    On the other hand, and as against this testimony of the expert accountant, the plaintiff has offered in evidence the financial report of the condition of the company, made by expert accountants, Francis & Sterrett, just prior to the meeting of directors of January, 1899, in which it is shown that the net profits of the company were something over $16,000; which, if true, placed the company in a financial condition, entitling its directors to declare the dividend which was declared. And this report of the experts appears to have been procured for the guidance of the directors, or, at least, was used and relied upon by them apparently for that purpose, namely, for the declaration of the dividends.
    In addition to this fact, the plaintiff has called Messrs. Holden, Schmidt, Einggold and Carr, four of the defendants, constituting four of the five directors of the company, in office at the time of the declaration of the alleged fraudulent dividends, all of whom have testified that they acted solely upon their own judgment and responsibility in the declaration of the dividends and because they believed it to be proper to do so; and no one of them has been shown to have been materially influenced in his action or in his judgment by any of the three Oummings, the other defendants. It is difficult, therefore, and indeed impossible to find from the evidence that the declaration of dividends referred to, even though they may have been improperly declared and paid, was the result of any preconcerted action or conspiracy on the part of the three Cummings or any two of them.
    In addition to these facts, it is the alleged wrong done the plaintiff and not the conspiracy, if there was one, which is the substance of this case. That is to say, even though there were a conspiracy among the defendants for the purpose of deceiving the public, yet that fact in itself would not entitle the plaintiff to recover in this cause. For, in addition to proving a conspiracy on the part of the defendants as alleged, he must also prove that he, the plaintiff, was thereby deceived and misled and that he purchased the stock as a result of what the defendants did in pursuance of their preconcerted intention to practice a fraud upon either the public in general or upon the plaintiff, and that the purchase of the stock under such circumstances resulted in a loss to him. Of the fact of such deception or that any act or misstatements of the defendants by preconcerted action with intent to defraud was the inducing cause of the plaintiff purchasing the stock in question, there is not sufficient evidence to entitle him to recover.
    In cases of this nature, the substance of the plaintiff’s allegations must be proved by evidence of a satisfactory character; and if there is no such evidence, it becomes the duty of the court to so instruct the jury.
    After a careful consideration of the evidence in this case, I am of the opinion that it is not of such a character as to entitle the plaintiff to a verdict.
    Verdict and judgment for defendants. Plaintiff appealed.

      Errors assigned were (1-8) rulings on evidence, quoting the bill of exceptions; (21) in giving binding instructions for defendants.

      F. B. Bracken, for appellant.
    The learned court below erred in rejecting testimony offered by the plaintiff to prove collusive sales by defendants, one to the other, on the Philadelphia Stock Exchange, of the common stock of the company, in order to create a fictitious market value therefor: McElroy v. Harnack, 213 Pa. 444.
    The deceit practiced by the defendants is the gist of the action ; that is, the plaintiff was bound to prove not -only that one or more of the defendants caused the company to declare and publish dividends not earned, but, in addition, that they were actuated therein by the fraudulent purpose to deceive the public as to the condition of the company and thereby induce the purchase of their worthless stock: Laverty v. Varnarsdale, 65 Pa. 507 ; Rundell v. Kalbfus, 125 Pa. 123 ; Fillman v. Ryon, 168 Pa. 484 ; McElroy v. Harnack, 213 Pa. 444 ; White v. Rosenthal, 173 Pa. 175.

      George S. Graham, for appellees.
    April 20, 1908 :
   Opinion by

Mr. Justice Elkin,

This is an action of trespass for damages claimed to have been suffered by reason of an alleged conspiracy fraudulently and maliciously entered into by defendants to cheat and defraud the public in general and the appellant in particular. In order to sustain a recovery the burden is on appellant to prove by sufficient testimony that such a conspiracy was entered into in the first place, and that as a result of the fraudulent acts done and false statements made for the purpose of furthering the scheme to defraud, he was induced to invest in the preferred stock purchased by him at a price in excess of its real value. Conspiracy is a combination or agreement between two or more persons to do an unlawful thing, or to do a lawful thing in an unlawful manner. A conspiracy to defraud on the part of two or more persons means a common purpose supported by a concerted action to defraud, that each has the intent to do it, and that it is common to each of them, and that each understands that the other has that purpose: United States v. Frisbie, 28 Fed. Repr. 808. In the case at bar seven defendants are charged with conspiracy, but it is conceded there is no evidence against four of them, and certainly as to the other three the evidence is not sufficient to show concerted action or common intent or collusive understanding or unlawful combination to cheat and defraud appellant.

A conspiracy may be proven either by direct and positive testimony showing that a collusive agreement had been entered into to do an unlawful thing, or by acts and circumstances sufficient to warrant an inference that the unlawful combination had been in point of fact formed for the fraudulent purpose charged, and when circumstantial evidence is relied on to prove the conspiracy its sufficiency must first be determined by the court. It must not be overlooked that in a suit alleging conspiracy between two or more persons, the foundation of the action is the unlawful combination. Failure to prove the unlawful combination defeats the right to recover, and the unlawful combination, like any other substantive fact, must be established by sufficient relevant testimony. If the testimony is direct and positive as a rule the question of sufficiency cannot arise, and in such cases it is for the jury to pass upon the credibility of witnesses and determine the fact by the weight of the evidence. When the testimony is not direct and positive, but where subsequent acts and circumstances are relied on to establish the conspiracy, a very different situation is presented. In such a case the first duty rests with the court to say whether the proven acts and circumstances, even if believed, are sufficient in law to establish in point of fact that the unlawful combination had been entered into by the parties charged, or two or more of them at some prior date. If the subsequent acts do not show, or tend to show, the prior unlawful combination and purpose, the very foundation of the action, it is clear the plaintiff has failed to make out his case and it is the duty of the court to say so. It may be, and no doubt is, often difficult to determine when the subsequent acts relied on are sufficient to establish the conspiracy and when they should be deemed insufficient. These, however, are difficulties with which courts are frequently confronted and which must be met and determined with an eye single to the legal rights of the parties. When conspiracy is alleged it must be proven by full, clear and satisfactory evidence. This measure of proof is recognized in all our cases as the correct rule, and while it is permissible to prove subsequent acts from which the conspiracy itself may be inferred, when such acts are relied on to establish the conspiracy they must be such as to clearly indicate the prior collusive combination and fraudulent purpose, not slight circumstances of suspicion upon which a jury might guess or conjecture as to the fact of such unlawful combination ever having been entered into, but they must be such as to warrant the belief and justify the conclusion that the subsequent acts were done in furtherance of the unlawful combination and in pursuance of the scheme to defraud. The subsequent acts must negative the idea of a lawful undertaking or purpose, and must tend to show the prior unlawful combination. If the subsequent acts show an honest purpose or a lawful transaction, it would do violence to the settled rules of evidence and to the legal rights of parties to hold that testimony which shows subsequent lawful acts is sufficient to establish a prior unlawful combination. The burden is on him who alleges a conspiracy as the foundation of his suit to prove it by sufficient testimony, and, failing to do so, his action falls. A. conspiracy must be proven by substantive facts, not by disconnected circumstances, any one of which, or all of which are more consistent, or just as consistent, with a lawful purpose as with an unlawful undertaking.

In the present case there is no direct or positive testimony showing or tending to show that an unlawful combination had ever been formed by the defendants, or by two or more of them, to cheat and defraud appellant, and the subsequent acts of some of the defendants proven at the trial, and the rejected offers of testimony relating to the sales of common stock on the stock exchange, in no way connected with the purchase of preferred stock at private sale, or with any dealings between appellant and appellees concerning the purchase and sale of the particular stock upon which this suit is based, fall far short of being sufficient to establish an unlawful combination. Under such circumstances it was the duty of the court to take the responsibility by directing the jury to return a verdict for defendants, which the learned trial judge did, and in so doing he followed the rule of our own cases: Newall v. Jenkins, 26 Pa. 159 ; Gaunce v. Backhouse, 37 Pa. 350 ; Benford v. Sanner, 10 Pa. 9 ; Mead v. Conroe, 113 Pa. 220 ; Collins v. Cronin, 117 Pa. 35 ; Nat. Bank v. Tinker, 158 Pa. 17.

The first eight assignments of error relate to the refusal of the court to allow appellant to show the listing of the common stock of the Daylight Prism Company on the Philadelphia Stock Exchange and the sales of said stock by the defendants and others through brokers. The transaction about which appellant complains was the purchase by him of preferred stock, not listed nor sold on the stock exchange at the time, and in the rejected offers of testimony, it was not proposed to show that the sales of common stock affected the value of the preferred stock, or that it was part of a conspiracy to cheat and defraud, or that when the preferred stock was purchased the price paid for same did not represent its then market value, or that he relied on the quotation of the common stock when he purchased the preferred shares at private sale. The rejected offers of testimony were too indefinite, vague and remote to sustain the allegation of conspiracy and were properly excluded. Nor is McElroy v. Harnack, 213 Pa. 444, authority for a different rule. It is true in that case the plaintiffs were permitted to show that the brokers by what is known as wash or fictitious sales on the stock exchange gave the bonds a high market value, more than their real worth, which enabled the other defendants to borrow money in excess of their value by using the bonds as collateral. It is clear, however, that the whole transaction in that case from the incorporation of the company, the purchase of incumbered real estate, the execution of a mortgage greatly in excess of the value of the property, the issuance of bonds on the same, and the sale of these bonds fictitiously on the stock exchange, was part of a collusive scheme to defraud the public or individuals who had anything to do with the bonds as a purchaser or as a lender of money with them as collateral. Then, again, the brokers in that case who manipulated the fictitious sales were two of the defendants and they had been connected with the collusive scheme from its inception. None of these facts appear in the present case.

The remaining assignments of error, relating to the declaration of dividends and the exclusion of testimony tending to show control of the company by defendants, are without merit under the facts of this case. The excluded testimony, if admitted and believed, was not sufficient to establish a conspiracy to cheat and defraud appellant in the purchase of his preferred stock, and since this is the foundation upon which the right to recover depends, the suit must fall.

Judgment affirmed.


author: Mr. Justice Stewart,

text:
    Excelsior Saving Fund v. Cochran, Appellant.

      Mortgage — Service on owner — Defenses of owner — Scope of the Act of July 9,1901, P. L. 614, amended by the Act of April 23,1903, P. L. 261— Title to real estate.

    The Act of July 9, 1901, P. L. 614, is without reference to the jurisdiction of the 'courts, and is a regulation of service only.
    The Act of July 9, 1901, P. L. 614, amended by the Act of April 23, 1903, P. L. 261, does not so widen the scope of the statutory proceedings by a scire facias for the enforcement of a mortgage debt that it may now be applie.d to determine questions of title to real estate. The proceeding remains just what it was before the act of 1901, a remedy for the collection of a debt; the judgment which follows, is not and cannot be made a lien upon any land not owned by the mortgagor. The reason which prevailed, before the act was passed, to give the terretenant the right to intervene and denied it to the owner, obtains as much now as then, notwithstanding both are made parties — the one may be prejudiced by the verdict, the other cannot.
    On the trial of a scire facias sur mortgage where the case proceeds against the owner alone, the latter will not be permitted to prove title in himself to the premises described in the mortgage superior to, and wholly independent of, any that could be asserted for the mortgagor, and that in point of, fact the mortgagor was without any interest in the land that could be made the subject of lien.
    Argued Feb. 11, 1908.
    Appeal, No. 358, Jan. T., 1908, by-defendant, from judgment of O. P. Delaware Co., March T., 1905, No. 70, on verdict for plaintiff in case of Excelsior Saving Fund v. I. Engle Cochran, Jr., Mortgagor, and Lydia Gibbons, use owner.
    Before Mitchell, C. J., Bbown, Mestbezat, Elkin and Stewabt, JJ.
    Affirmed.
    Scire facias sur mortgage.
    Before Johnson, P. J.
    At the trial Lydia Gibbons made various offers of evidence to prove title in herself superior to that of the mortgagor. These offers were objected to and the objections were sustained, and exceptions allowed. [3-14]
    The court gave binding instructions for plaintiff.
    Yerdict and judgment for plaintiff for $8,335.19. Defendant appealed.

      Errors assigned were (1, 2) in giving binding, instructions for plaintiff; (3-14) rulings on evidence, quoting the bill of exceptions.

      Jos. R. Hinkson, for appellant.
    There is a clear distinction between a terre-tenant and an owner.
    A terre-tenant is one who has purchased the land mediately or immediately from the debtor while it was bound by the mortgage, while an owner is anyone who claims to own the land upon which an alleged mortgage was given : Mitchell v. Hamilton, 8 Pa. 486 ; Dengler v. Kiehner, 13 Pa. 38 ; Tyrone, etc., Ry. Co. v. Jones, 79 Pa. 60 ; Hulett v. Life Ins. Co., 114 Pa. 142 ; Buckby v. Sturtevant, 28 Pa. Superior Ct. 552 ; Cassel v. Menge, 14 Lanc. 73.
    No one is a terre-tenant who is not a subsequent grantee in fee simple of the debtor in the mortgage : Mitchell v. Hamilton, 8 Pa. 486 ; Dengler v. Kiehner, 13 Pa. 38 ; Tyrone, etc., Ry. Co. v. Jones, 79 Pa. 60.
    Appellant’s position was that inasmuch as the act of 1901 made an “ owner ” a party to the sci. fa. sur mortgage proceedings and made him defend thereto, and that inasmuch as a sci. fa. sur mortgage is a proceeding in rem, the “ owner” must make any defense he has at the trial of the sci. fa. or be forever barred from making a defense to the mortgage, or, in other words, he is in the same position as the “ terre-tenant ” was before the act of 1901 — when made a party to the sci. fa. proceedings must make whatever defence he had upon the trial of the sci. fa. or be forever thereafter barred.
    One will hardly doubt that if a terre-tenant has been served in the sci. fa. proceeding he is bound by the judgment and precluded from ever setting up his defense, but if authorities are needed the following are given : Nace v. Hollenback, 1 S. & R. 540 ; Blythe v. McClintic, 7 S. & R. 341 ; Himes v. Jacobs, 1 P. & W. 152 ; Stevens v. North Penna. Coal Co., 35 Pa. 265 ; Schnepf’s Appeal, 47 Pa. 37 ; Hulett v. Mutual Life Ins. Co., 114 Pa. 142.
    Since the act of 1901 it is certain that if the owner has been served in the sci. fa. proceeding he must make his defense at the trial of the sci. fa. or be forever barred : Buckby v. Sturtevant, 28 Pa. Superior Ct. 552 ; Kay v. Gray, 6 Lacka. Jurist. 202 ; Chase v. Brown, 22 Pa. C. C. Rep. 598.

      O. B. Dickinson, with him W. B. Harvey, for appellee.
    It is no defense to a mortgage that the mortgagor had no mortgageable interest in the title to the land.
    The purchaser at sheriff’s sale in foreclosure proceedings will take whatever interest, if any, the mortgagor had in the land and no more : Penna. Co. v. Beaumont, 190 Pa. 101 ; Faucett v. Harris, 185 Pa. 164.
    April 20, 1908 :
   Opinion by

Mr. Justice Stewart,

This was an action of scire facias sur mortgage. The writ was directed not only against the mortgagor, but against Lydia Gibbons, the appellant here, as owner, and those occupying the premises under her, as terre-tenants, in conformity with the requirements of the Act of July 9, 1901, P. L. 614, amended by the Act of April 23, 1903, P. L. 261. Judgment by default having been taken against the mortgagor on two returns of nihil, the case was proceeded with to trial against the owner who, after filing an affidavit of defense, had pleaded regularly to the action. On the trial she sought to introduce by way of defense the several matters set out in her affidavit; that is to say, she offered to prove title in herself to the premises described in the mortgage superior to and wholly independent of any that could be asserted for the mortgagor; and that in point of fact the mortgagor was without any interest in the land that could be made the subject of lien. The several offers of evidence in support of this attempted defense were excluded, and the jury was instructed to return a verdict for the plaintiff. It is this action of the court that is here called in question. The contention on part of appellant is, that having been made a party to the action as owner in accordance with the requirements of the act of July 9, 1901, she not only had the right to set up her superior title as a defense to the action, but that she was bound to do so or be concluded with respect to it by the verdict. If correct in this, then concededly the effect of the act0of July 9, 1901, is to make what was before a statutory proceeding, intended exclusively for the collection of a mortgage debt, a partial substitute at least for the common-law action of ejectment for the determination of questions of title.

We might very well rest our conclusion with respect to the question here involved, on the case of Park Bros. & Co. v. Oil City Boiler Works, 204 Pa. 453 — a case which seems to have been overlooked upon the argument — where, speaking by the present chief justice, we held that the act of July 9,1901, was without reference to the jurisdiction of the courts, and ivas a regulation of service only. Since, however, the present controversy arises over a different clause in the act than that there considered, a further expression of view seems to be called for.

Just what the legislative purpose was in requiring that the owner of the mortgaged premises be made a party defendant in a proceeding of this kind, may not be readily apparent; nor is it necessary to inquire, since we are all of one mind that whatever that purpose was, what is here contended for by the appellant does not fall within it. One sufficient reason for this view is, that the statutory proceeding for the foreclosure of a mortgage is wholly inappropriate to and inadequate for the determination of questions of title, except as we import into it those provisions which relate exclusively to the action of ejectment ; and for this no warrant can be found in the act. Had it been the purpose to enlarge the scope and effect of the proceeding by scire facias, so as to make it accomplish what before could only be reached through an action of ejectment, certainly provision would have been made for adapting it to the end proposed. Another entirely satisfactory reason, is to be found in the fact that the only purpose expressed in the act is “ to furnish a complete and exclusive system in itself relative to the service of all such writs.” This appears in the tenth section of the act. Whether this does or does not express the whole and only purpose, with this much expressed, and the reference being to a change in practice and procedure not nearly so radical and violent as Would be the change here contended for, it is only reasonable to conclude, from the fact that there is no expression of purpose to make the latter change, that no such change was intended. Other reasons might readily be suggested, but we deem these quite sufficient for the determination of the question presented. All that we here decide is that the act of July 9,1901, as amended, does not so widen the scope of the statutory proceeding by scire facias for the enforcement of a mortgage debt that it may now be applied to determine questions of title to real estate. As the law stood before the passage of the act in question, no prejudice could result to an owner with respect to his title, from a verdict for the plaintiff in such proceeding. No more can it now. The proceeding remains just what it was, a remedy for the collection of a debt; the judgment which follows is not and cannot be made a lien upon any land not owned by the mortgagor. The reason which prevailed, before the act was passed, to give the terre-tenant the right to intervene and denied it to the owner, obtains as much now as then, notwithstanding both are made parties — the one may be prejudiced by the verdict, the other cannot.

Our conclusions with respect to this, the main question in the case, necessarily disposes of all the assignments of error.

The judgment is affirmed.


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

      Negligence — Railroads—Passenger—Station.
    The relation of carrier and passenger begins as soon as one intending in good faith to become a passenger enters in a lawful manner upon the carrier’s premises to engage passage, and that relation continues to exist until the passenger has been made aware of his arrival at the place of destination and has had a reasonable time to alight from the car and to leave the premises of the carrier.
    Where a passenger after alighting from a train crosses the tracks from a station on one side of the line to a station on the other- side where she intends to meet a friend waiting for her, and in so doing she is compelled to go over a crossing of a highway, she does not cease to be a passenger merely because she has passed over such highway.
    Where a passenger after alighting from a train enters the station for the purpose of waiting for a friend who was to meet her, and not for the purpose of using the station as a waiting room for a street railway company, she is entitled to use the station as a passenger for a reasonable time, and what is a reasonable time is a question of fact to be determined by the jury; and if after leaving the station she is compelled to walk along an insufficiently lighted path, torn up and obstructed, and very close to the tracks, and she is injured by a passing express train, she may recover for the injuries which she sustained if she used reasonable care to avoid danger. In such a case the company’s negligence, and the plaintiff’s contributory negligence are questions for the jury.
    Argued Feb. 11, 1908.
    Appeal, No. 381, Jan. T., 1907, by defendant, from judgment of O. P. Bucks Co., May T., 1906, No. 14, on verdict for plaintiff in case of Elizabeth H. Powell v. Philadelphia & Reading Railway Company.
    Before Mitchell, C. J., Brown, Mestrezat, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries.
    Before Stout, P. J.
    At the trial the jury rendered a verdict for the plaintiff for $2,730.10.
    On a rule for a new trial and judgment non obstante veredicto the court filed an opinion in which the facts were stated to be as follows :
    At about 6:40 o’clock on the evening of November 29,1905, the plaintiff, Elizabeth PI. Powell, accompanied by her friend, Miss Gaunt (now Mrs. Engle), arrived at Langhorne station on a train from Philadelphia. They both alighted in safety on the temporary cinder walk or platform on the south side of the railroad, then operated as a double track road, running at that point from west to east from Philadelphia to New York city. They were on their way to visit at the house of Edward Palmer, who lived at Langhorne, north of the railroad, and who was to meet them at the station with a carriage. The passenger station house was on the north side of the railroad. It had been located for many years at the foot of Station avenue, a street running in a northerly direction to Langhorne borough. About three weeks prior to this date the station had been moved about 125 feet to the east towards Bellevue avenue, the main street crossing the railroad at about right angles, and running in a northerly direction into Langhorne borough. On the north side of the railroad the Langhorne and Bristol street railway ran from Bellevue avenue in a westerly direction along or near the defendant’s land, and parallel with its tracks, for several squares to the west of the passenger station, where it crosses the railroad tracks to the south by an overhead bridge. The street railway stopped its cars at the foot of Station avenue, opposite the railroad station, to let off and take on passengers. The street railway maintained a small platform at this place for the accommodation of its passengers, but no waiting room. Street car passengers intending to take the railroad trains used the railroad’s waiting rooms until the departure of their trains, and railroad passengers who desired to reach their destination by means of the street railway, likewise used and remained in the defendant company’s waiting rooms until the arrival of the next street car. There was no agreement between the defendant company and the street railway as to such use. The waiting rooms were so used by the passengers of both companies for the purposes aforesaid by the permission of the defendant company, at least it does not appear that any objection was made by the defendant company to such use since the street railway was in operation, about ten years. As said before, Miss Powell and her friend, Miss Gaunt, alighted on the platform in safety. It was a dark, rainy, stormy night. There was no shelter for passengers on the south platform except a small open shed. Miss Powell had been at Langhorne several times before and had used the waiting rooms, but she had not been at Langhorne since the passenger station had been moved. Miss Gaunt had been a frequent visitor at Langhorne and was well acquainted with the use of the waiting rooms, but had not been there since the station had been removed. They could not reach Mr. Palmer, who lived north of the railroad, without crossing the tracks. They could not cross from the point where they were on the platform to the waiting rooms on the north side because of an iron picket fence between the east and westbound tracks, extending from a point west of the station to the line of Bellevue avenue, a public street crossing, the gates in front of the station being closed. They walked on the cinder walk to Bellevue avenue over the public street crossing to the north side of the railroad, at the end of the cinder walk, which led to the station and waiting rooms, about 190 feet west of Bellevue avenue. At this point they were as near to the street car line as they were at the station waiting rooms. They could have proceeded directly to Mr. Palmer’s by the public streets, or they could have gone to the public licensed hotel opposite the street to wait for a car. They, however, did not do so. They took the newly laid cinder walk or platform to the railroad station. .They entered the waiting room and at once passed through it to the back door to see whether Mr. Palmer was there with a carriage. It was through the back door that passengers usually took their carriages before the station was moved. They found the door was locked. They looked through the windows and found Mr. Palmer was not there. They then went to the booth and telephoned to Mr. Palmer to know what to do. He told them to sit down and wait. In a short time Mr. Palmer arrived to take them home in the street car. Their purpose of using the waiting room was to meet Mr. Palmer in the first place, and afterwards to await his arrival to take them home, and to secure shelter from the storm in the meantime. They then waited for the arrival of the next car which was due at 7:40. On the arrival of the street car Mr. Palmer, the plaintiff, and Miss Gaunt, with a number of others were waiting there for the same purpose. They all passed down a little bridge from the elevated temporary platform in front of the waiting room to the temporary cinder walk laid along the tracks where the old platform had been taken up the day before. It was while they were passing along this walk to meet the street car that Miss Powell was struck by a passing express train from the east and was injured. During this period the waiting rooms were open for the use of the defendant’s passengers. Miss Powell held a return ticket to Philadelphia.
    The court discharged the rule for a new trial and judgment non obstante veredicto, and entered judgment on the verdict.

      Errors assigned were (1) in instructing the jury that plaintiff’s “ rights as a passenger had not ceased,” and (6) in discharging rule for judgment for defendant non obstante veredicto.

      Wm. O. Ryan, with him Henry D. Paxson, for appellant.
    The defendant was not guilty of negligence: Graham v. Penna. Co., 139 Pa. 149.
    The plaintiff, at the time of the accident, had ceased to be a passenger and became a mere licensee, to whom the defendant company owed only the duty of not inflicting willful injury upon her or being so grossly negligent toward her as would amount to willful injury: Gillis v. Penna. R. R. Co., 59 Pa. 129 ; Heinlein v. R. R. Co., 147 Mass. 136 (16 N. E. Repr. 698).
    The plaintiff was guilty of contributory negligence : Delaware, etc., R. R. Co. v. Cadow, 120 Pa. 559 ; Carroll v. Penna. R. R. Co., 12 W. N. C. 348 ; B. & O. R. R. Co. v. Schwindling, 101 Pa. 258 ; Penna. R. R. Co. v. Bell, 122 Pa. 58 ; Matthews v. Penna. R. R. Co., 148 Pa. 491.

      Henry A. James, with him Howard Cooper Johnson, for appellee.
    The evidence proved conclusively that the negligence of the defendant was the cause of the accident: Langan v. Ry. Co., 72 Mo. 392 ; Dobiecki v. Sharp, 88 N. Y. 203.
    The plaintiff at the time of the accident had not ceased to be a passenger and the defendant company still owed to her all the duties which it owed to a passenger: Girton v. R. R. Co., 199 Pa. 147 ; Girton v. Lehigh Valley R. R. Co., 17 Pa. Superior Ct. 143 ; Louisville, etc., R. R. Co. v. Keller, 47 S. W. Repr. 1072 ; Keefe v. R. R. Co., 142 Mass. 251 (7 N. E. Repr. 874).
    There was no contributory negligence on the part of the plaintiff : Louisville, etc., R. R. Co. v. Keller, 47 S. W. Repr. 1072 ; Betts v. R. R. Co., 191 Pa. 575 ; Flanagan v. Philadelphia, etc., R. R. Co., 181 Pa. 237 ; Penna. R. R. Co. v. White, 88 Pa. 327 ; Kohler v. Penna. R. R. Co., 135 Pa. 346 ; Girton v. R. R. Co., 17 Pa. Superior Ct. 143 ; Penna. R. R. Co. v. Green, 140 U. S. 49 (11 Sup. Ct. Repr. 650); Texas, etc., Ry. Co. v. Brown, 78 Texas, 397 (14 S. W. Repr. 1034); Ill. Cent. R. R. Co. v. Foley, 53 Fed. Repr. 459 ; Penna. R. R. Co. v. White, 88 Pa. 327.
    April 20, 1908 :
   Opinion by

Mr. Justice Elkin,

Aftercareful consideration we have concluded that the first assignment of error must be sustained. Whether the plaintiff remained in the waiting room for an unreasonable length of time so as to become a loiterer or mere licensee, was, under the circumstances of this case, a question of fact to be determined by the jury. The learned trial judge in his opinion overruling the motion for a new trial and for judgment non obstante veredicto states that this was a question for the jury and that it was so submitted, but upon an examination of the charge it is clear that this question was not submitted to the jury with instructions for them to determine this fact. On the other hand, the jury were instructed that “ according to the view which the court takes of that situation, the court will instruct you that her rights as a passenger had not ceased.” This had reference to the exact question whether she had remained at the station an unreasonable length of time, and it can only be construed as a binding instruction to the jury. This binding instruction was followed by a general discussion of the facts relating to this particular question, but nowhere does it appear that any direction was given to the jury to determine this exact question. The effect of the charge in this respect can only be considered as binding instructions upon the question of reasonable length of time, and therefore the jury were not left to determine whether, under the circumstances, she had remained an unreasonable time'at the station. We do not agree with the contention of the learned counsel for appellant that the relation of carrier and passenger had ceased as soon as plaintiff had been discharged from the train on the south side and had proceeded from that point to the station house on the north side of the railroad tracks, being the point nearest her destination. This position is predicated on the thought that in passing from the station house on one side to the station house on the other, the passenger passed over the tracks at a public crossing. If the railroad company had chosen to make a public crossing a convenience for its passengers in going from the station on one side of its tracks to that on the other, it cannot be excused for an act of negligence on the ground that the relation of' carrier and passenger had ceased the moment the passenger placed his foot upon the public highway. The general rule is that the relation of carrier and passenger begins as soon as one intending in good faith to become a passenger enters in a lawful manner upon the carrier’s premises to engage passage, ahd that relation continues to exist until the passenger has been made aware of his arrival at the place of destination and has had a reasonable time to alight from the car and to leave the premises of the carrier. The duty of the defendant company under this general rule in the present case did not cease the moment plaintiff alighted from the train on the south side of the tracks, nor when she proceeded in the direction ordinarily taken by passengers to reach the station on the north side of the tracks, nor did it cease then until she had a reasonable opportunity to make her arrangements to depart. And right here is the pinch of the case on the question raised by the first assignment of error. Clearly the plaintiff had the right after alighting from the train to proceed to the station on the opposite side of the tracks to await the arrival of a friend who was to meet her there. She was delayed a considerable length of time, and for the reason stated in the testimony she remained in the waiting room until the friend whom she intended to visit called for her. In this connection we quite agree with the suggestion made by the learned counsel for appellant that it was no part of the duty of the railroad company to furnish a waiting room for the intending passengers of a street railway company with which the railroad company had no connection, and if it clearly appeared that the only purpose of the plaintiff after alighting from the train at the south side of the tracks was to go to the station on the north side, for the purpose of awaiting the arrival of a street railway car on which she intended to become a passenger, there could be no recovery because the relation of carrier and passenger would, under these circumstances, have ceased to exist before the injury occurred. But we do not so understand the testimony on this branch of the case. The plaintiff went to the station by the ordinary route, either to meet her friend or await his arrival in order to accompany her to her place of destination. The friend who was to meet her at the station might have walked, or even driven in a carriage, or come as a passenger on the street railway, and the manner of his coming would in no way affect her rights as a passenger of the railroad company. Under these circumstances the plaintiff had a right to make use of the waiting room of the defendant company for a reasonable length of time, and what was a reasonable length of time was a question of fact to be determined by the jury. It was the duty of the court to instruct the jury to first determine this question before proceeding to inquire into the alleged negligence of the defendant company, because the right to recover at all depended upon the determination of this question by the jury. If it should be determined that plaintiff had remained at the station an unreasonable length of time before her departure, it would necessarily follow that the relation of carrier and passenger had ceased, and there could be no recovery for an injury subsequently sustained. As we view the testimony the question of negligence was too broadly submitted to the jury. It was not negligence on the part of the defendant company to run the train which caused the injury on its own tracks and at the usual rate of speed for that train. The question of signals, headlights and other incidental matters connected with the running of the train, about which some testimony was furnished at the trial, has no connection with this case. The negligence, if any, of the defendant company is in no manner connected with the running of the train which caused the injury. It was the duty of the defendant company to provide safe means of access to and departure from its station for the use of passengers, and the plaintiff in the present case had a right to assume that the means of ingress and egress were reasonably safe. It was the duty of the defendant company to make and maintain the walk in a reasonably safe condition, and if, on the night of the accident, the walk was torn up or covered with obstructions which interfered with its proper use, or which caused the plaintiff to walk too close to the railroad tracks in order to avoid the obstructions, and if this condition of the walk was the proximate cause of the injury, there can be a recovery of damages for the injuries thus sustained. Again, it was the duty of the defendant company to keep the walks and approaches to the station properly lighted at night or when required. This duty was more imperatively demanded of the defendant company in the present case because of the close proximity of the walk to the railroad tracks, which necessarily made it somewhat dangerous. As we view it, there are only two questions of negligence to be submitted to the jury, that is, was the walk reasonably safe for the use intended and was it sufficiently lighted, and if not, was failure to perform these duties the proximate cause of the accident ?

It was the duty of plaintiff to use reasonable care in order to avoid danger. She was charged with notice that the defendant company had a right to run its trains on its own tracks at any time it suited its purpose to do so, and that a train might pass along while she was on the walk, and the duty rested on her to use reasonable care in order to avoid danger to her person. If she walked too close to the railroad tracks without looking ahead and without exercising such reasonable care as a prudent person should exercise under the circumstances and was injured by reason of her own neglect, clearly there could be no recovery. Under the circumstances, however, we have concluded that this question was also for the jury.

Judgment reversed and a venire facias de novo awarded.


text:
    Chester City v. White.

      Municipalities — Smallpox hospital — Equity—Consent decree — Intervening taxpayers — Vacating decree.

    Where on a bill in equity by a city to prevent the removal through the public streets, of buildings, which had been used as a smallpox hospital, the parties agree upon a decree directing that the buildings shall be destroyed, and the owners compensated by an amount mentioned, intervening taxpayers cannot, after the entry of the decree and the destruction of the buildings without payment having been made to the owners, object to the validity of the decree on the ground that the city authorities had not expressed their assent to the entering of the decree by a municipal ordinance. The vacation of the decree under such circumstances would be an unjust and inequitable exercise of judicial authority which the city itself could not demand, and the intervenors having no higher rights than the city, are subject to the same limitations and restrictions.
    Argued Feb. 11, 1908.
    Appeal, No. 393, Jan. T., 1907, by Harry S. Riley, C. B. .Mould and S. E. E. Kay, taxpayers of the city of Chester, from decree of C. P. Delaware Co., March T., 1905, Ho. 48, dismissing petition to set aside decree on bill in equity in case of City of Chester and the Board of Health thereof v. Eugene F. White and Robert S. Maison, M. D., trading as hospital for contagious diseases in Delaware Co., Pa.
    Before Mitchell, O. J., Bbown, Mestbezat, Elkin and Stewabt, JJ.
    Affirmed.
    Petition to revoke decree.
    The court below, in an opinion by Johnson, P. J., and Bboomall, J., stated the facts to be as follows :
    On March 27, 1905, the plaintiffs filed their bill in this court, setting forth that on July 11,1902, Eugene F. White and Robert S. Maison, M. D., had entered into a contract with the city of Chester. This contract stipulated for the construction of a smallpox hospital within the city, or within three miles therefrom, for the reception and treatment of persons afflicted with smallpox in said city under the rules and regulations of the board of health, and upon certain compensation therein prescribed. This agreement provided for a term of two years. The hospital was erected by White and Maison, and the term of the contract had expired, and the necessity for its continuance had ceased. The hospital buildings were about to be removed by White and Maison from their present location to some other locality in the city of Chester, and that the effect thereof would be to endanger public health. The prayer in this bill was for an injunction to prevent the removal of the said buildings and their contents along any of the public highways of the city. The locality where the buildings were erected is within the corporate limits of the city of Chester. After this bill was filed, to wit: on March 31, 1905, an injunction preventing the removal of the said buildings along said public highways was issued. On May 18, 1905, the defendants filed an answer substantially setting forth that the buildings had been erected upon ground which they had leased for the purpose. The lease had expired. The buildings and contents had cost them about $12,000. They could not be removed from the demised property except over a public highway or highways of the city. They could be removed without endangering public health, and that if they were enjoined from removing them such prohibition would amount to a confiscation of their property.
    A replication joining issue upon all of the averments of the answer having been filed, the case was proceeded with until September 12, 1906, when a decree nisi was entered adjudging the injunction to be permanent. Exceptions were filed by the defendants to this decree, which were dismissed on March 26, 1907, and at the same time a decree was entered under an agreement of the attorneys for the plaintiffs and defendants. This decree is the subject of the present contention and is here given in ipsissimis verbis.
    “ And now, March 26, 1907, it is ordered and decreed that the City of Chester, plaintiff above-named, pay to the defendants the sum of five thousand dollars, the same to be accepted by a stipulation to be filed by them as a full settlement of all claims and demands between the parties for or by reason of the agreement entered into between the parties for the conduct of the hospital for contagious diseases ; for or by reason of the issuance and continuance of the injunction issued herein; for or by reason of the entry of this decree; or for or by reason of the destruction by fire of all buildings, beds, bedding, furniture, dishes and all other property of every kind and description on the premises, the destruction of which is hereby ordered to be done within thirty days hereafter.
    “ It is further ordered and decreed that the injunction issued shall be and remain perpetual and that the payment of five thousand dollars by the plaintiff city and acceptance of it by the defendants relieves the parties respectively of the payment of costs one to the other.
    “ The payment of said sum of five thousand dollars is not to be due and payable until the buildings and property has been destroyed by fire as aforesaid.
    “ It is further ordered and decreed that if the said sum of five thousand dollars should not be paid by the said City of Chester within three months after demand made and after the buildings and other propert}- having been destroyed it is stipulated that upon motion a decree shall be entered dismissing said bill with costs to the defendants.”
    On May 18, 1907, the petition of taxpayers was presented praying for permission to intervene in this suit for the purpose of inquiring into the validity of this decree. On this petition a rule to show cause was granted. An answer was filed by White and Maison denying the right of the taxpayers to intervene and further denying the right to inquire into the validity of the decree for the reason that on the twenty-ninth day after the date of the decree they had burned the buildings in pursuance of the direction of the decree.
    On May 29, 1907, the taxpayers presented their further petition to have the said decree revoked and set aside.
    The court entered the following decree :
    The prayer to revoke the decree of March 26, 1907, is, therefore, refused.

      Errors assigned were (1) in entering the decree of March. 26, 1907, quoting the decree; and (2) in not revoking the decree of March 26, 1907.

      A. E. Geary, for appellants.
    A compromise of an illegal claim imposes no liability upon a municipal corporation: Smith on Mun. Corps., sec. 739, citing Village of Fort Edward v. Fish, 33 N. Y. Supp. 784.
    Property taken and destroyed or impaired in value by operation of law, by virtue of overruling necessity, and for the public welfare, has not been construed as taken for a public use, but under a penalty and hence to require no compensation : State v. Snow, 3 R. I. 64; Mills on Eminent Domain, secs. 4, 5, 6 ; Beer Co. v. Mass., 97 U. S. 25 ; Mugler v. Kansas, 123 U. S. 623 (8 Sup. Ct. Repr. 273); People v. Hawley, 3 Mich. 330 ; Guillotte v. New Orleans, 12 La. Ann. 432 ; Phelps v. Racey, 60 N. Y. 10 ; Blazier v. Miller, 10 Hun, 435 ; Met. Bd. of Excise v. Barrie, 34 N. Y. 657; Green v. Swift, 47 Cal. 536 ; Green v. State, 73 Cal. 29 (11 Pac. Repr.) 602 ; Mills on Em. Dom., sec. 7; Baker v. Boston, 29 Mass. 184 ; Com. v. Alger, 61 Mass. 53 ; St. Louis v. Stern, 3 Mo. App. 48 ; Moses v. Sanford, 79 Tenn. 731.
    A nuisance detrimental to public health may be abated by the public or by a private citizen by destroying private property, if necessary, and in either case the owner is not entitled to compensation : 2 Wood on Nuisances (3d ed.), p. 948, secs. 735 and 736.

      O. B. Dickinson, with him J. E. McDonough, for appellees.
    April 20, 1908 :
   Opinion by

Mr. Justice Stewart,

However much the decree in this case may have been open to attack on appeal for irregularity, or for reasons still more serious, it may not now be assailed in the way here attempted. This is not an appeal from the decree itself — if it were, it comes too late to avail — but an appeal from the order of the court below refusing to vacate and strike off the decree. Admitting the right of the appellants to be heard as interveners, since it was allowed by the court below, such right allows them to do only that which the original party in whose shoes they stand might do ; they are subject to the same limitations and restrictions. Can it be pretended that the city of Chester, having received the benefit of so much of the decree as required the destruction of the defendant’s property, could now come in and attack the validity of the decree, in order to escape the liability imposed on it by the decree, to make compensation for the property destroyed at its instance? If it would be inequitable to allow such demand on the part of the city, it would be none the less so to allow it at the instance of these intervening taxpayers. The decree was moulded to express what at the time was supposed to be the agreement of the parties. The effort in the court below on part of the appellants, was to show that the city authorities had not expressed their assent to the entering of the decree by municipal ordinance, and that therefore the decree, in so far as it charged liability upon the city, and embraced other things than the relief prayed for in the original bill, was invalid and should be vacated. The time to set up such defense was before anything was done under the decree to the advantage of one side or the prejudice of the other. The decree directed defendant’s property to be destroyed for sanitary considerations within thirty days. On the last day of this period the property was destroyed in obedience to the decree. The appellants did not seek to intervene until afterwards. In refusing to vacate the decree the learned judge said: “ It would be manifestly an illegal, unjust and inequitable exercise of judicial authority to decide that the decree of March 26, 1907, should be revoked after the defendants have incurred the loss of their property, and thus deprive them of the advantage of the other parts of the decree.” In this expression of view we fully concur.

The decree is affirmed, and the appeal is dismissed at the costs of the appellants.


author: Per Curiam,

text:
    Hershey v. New York & Cleveland Gas Coal Company, Appellant.

      Will — Devise—Life estate — Fee simple estate.

    Testator by his will directed as follows: “I give, devise and bequeath to my beloved wife the use and control of all our house, situate on the old homestead farm all the contents such as household goods of all kinds, also the orchard and vineyard and garden; also privilege to keep one or two cows and a horse on said farm, my son to furnish pasture, hay and feed for the same on said farm to have all the above described so long as she remains my -widow, also to have ten sheep with the above. I give, devise and bequeath to my son, the farm known as the old homestead farm and all that appertains thereto his heirs and assigns forever (excepting what is devised to his mother during her life as above specified, at her death, to the same to be sold and money divided— equally five shares. . . .” Held, (1) that the clause in the -will relating to a sale was meaningless and should be disregarded; and (2) that the son took an estate in fee simple in the land subject to the life estate or interest of the widow.
    Argued Feb. 19, 1908.
    Appeal, No. 40, Oet. T., 1908, by-defendant, from judgment of.C. P. No. 2, Allegheny Co., Jan. T., 1908, No. 658, for plaintiff on case stated in suit of Harry W. Hershey v. The New York & Cleveland Gas Coal Company.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Case stated to determine marketable title-to real estate.
    Sharer, J., filed the following opinion;
    The action is for the purchase money of coal which the plaintiff agreed to sell to the defendant and which defendant declines to pay for, because, it says, that the title of plaintiff to the coal is not a fee simple free of incumbrances. It is admitted that the coal and the land under which it lies belonged to John Hershey, deceased ; that the title of the plaintiff depends upon a devise by John Hershey to him, the will of John Hershey being made a part of the case stated. The provisions of the will which relate to the land in question are ■ as follows:

      First, a provision for the wife of the testator in these words:
    “ I give, devise and bequeath to my beloved wife, Elizabeth Hershey, the use and control of all our house situate on the old homestead farm all the contents such as household goods of all kinds also the old orchard and vineyard garden ; also privilege to keep one or two cows and a horse on said farm my son Harry to furnish pasture, hay and feed for the same on said farm to have all the above described as long as she remains my widow.”
    A later clause of the will is as follows :
    “ I give, devise and bequeath to my son Harry Hershey the farm known as the Old Homestead Farm and all that pertains thereto his heirs and assigns forever (excepting what is devised to his mother during her life as above specified, at her death, to the same to be sold and money divided — equally 5 shares.”
    The original will, being made a part of the case stated, as we understand it, was exhibited to the court by counsel, and by an inspection of it, it appears that the word, “ to,” before the words, “ the same,” is written over the line, the words, “ to have,” being crossed out under it, and the words, “ to be,” after the word, “ same,-” were inserted after the succeeding words were written, and the words, “ equally 5 shares,” are also inserted above the line.
    The coal in question is part of the homestead farm. It does not appear from the case stated whether the widow of John Hershey is living or not, but it is agreed that the matter shall be decided without reference to her life estate, if she has any, in the garden, orchard and vineyard, which puts the case, as we understand it, as if the widow were now dead.
    It is claimed by defendant that the words, “ at her death to the same to be sold and money divided,” may apply to the farm itself, and amount to a devise of the farm to the plaintiff in fee as a trust to sell it and divide it into five shares. We are unable to see that the clause can have any such meaning. It seems to us that the clause as it stands is entirely meaningless, although we have no doubt that the scrivener, after properly enough excepting from the devise to Harry what had already been given to the widow, tried to insert a direction as to what was to be done with the property so excepted, which could only refer to the household furniture which she had been given for life, and which the scrivener no doubt meant by the words, “ all that pertains,” to the old homestead. The will having by express words given a fee to Harry in the farm, subject to the life estate or interest of the widow, and no other disposition of the farm being made, and the will containing no residuary clause, we are clearly of opinion that there is nothing in the clause in question to cut down the estate in fee in any way, or to impress it with any trust. Being of opinion, therefore, that so far as appears by the case stated the plaintiff has a good title in fee simple, it is ordered that judgment be entered for plaintiff according to the agreement of the parties for $1,505, with interest from February 21, 1907.
    The court entered judgment for plaintiff for $1,505 on case stated.

      Error assigned was in entering judgment for plaintiff on case stated.

      Wm. E. Sehoyer, with him Lyon, Hunter áe BurTte, for appellant.

      Alfred M. Lee, for appellee.
    April 20, 1908 :
   Per Curiam,

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