author: Me. Justice Stewaet,

text:
    Scranton Gas & Water Company, Appellant, v. Delaware, Lackawanna & Western Railroad Company.

      Railroads — Straightening line — Eminent domain — Water company— Act of March 17,1869, P. L. 12.
    1. Under the Act of March 17, 1869, P. L. 12, a railroad company may condemn land to straighten its line, although there may be a departure from the old line at one point of 2,500 feet, if it appear that the improvement will shorten the line by half a mile and reduce a curvature by 323°. In such a case it is of no consequence that the railroad company had in mind other advantages, or that these were the controlling considerations, without which the improvement would not have been entered upon.
    2. The inquiry in all such cases must be not into the conduct of the company, but into the rights conferred upon the company by law. If authorized by its charter to do the things complained of, the authority of the court is at an end, no matter what latent design may be developed.
    3. Where the minute of the executive committee of the railroad company shows that the effect of a condemnation of particular land, and the relaying of tracks thereon, will result in a substantial reduction of curvature, and a substantial shortening of the line, it is immaterial that the minute may have described the change as a “relocation.” If the minute is subsequently ratified and adopted by the board of directors, the proceeding is regular.
    4. The law commits to the board of directors of a railroad company the determination of the question of the necessity of condemning additional land under the Act of March 17,1869, P. L. 12, for straightening and widening the road. A determination by the board that the proposed change is necessary for the purposes indicated in the act is conclusive, and if such determination is reached in good faith, the court has no supervisory power over it.

      Railroads — Eminent domain — Condemning land of another public service company.

    5. Property devoted to public use including a franchise, is subject to eminent domain, and may be taken for other public uses, but it cannot be taken without legislative authority expressed in clear terms, or by necessary implication. There must, however, exist a necessity for the taking, and such necessity must be one that arises from the nature of things, over which the corporation has no control; it must not be a necessity created by the corporation itself for its own convenience, or for the sake of economy.
    6. Where a railroad company seeks to condemn land owned by a water company for the purpose of widening and straightening the line of the railroad, the mere possibility that the land may at some future time become necessary to the exercise of the water company’s franchise, will not operate to exempt the land from condemnation; nor will the fact that the property is at present employed, if the use is not necessary to the exercise of the company’s franchise.
    7. In such a ease an order permitting the condemnation will be sustained by the appellate court, where it appears that the order is based upon facts properly found, to the effect that the lands sought to be condemned are not now employed by the water company in the exercise of its franchise; that there are other available sites for reservoirs adequate for the future of the company; and that the improvement will not result in increasing water pollution when once established.
    Argued Feb. 24, 1909.
    Appeal, No. 8, Jan. T., 1909, by plaintiff, from decree of C. P. Lackawanna Co., March T., 1907, No. 1, dismissing bill in equity in case of Scranton Gas & Water Company v. Delaware, Lackawanna & Western Railroad Company.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Newcomb, J.
    The opinion of the Supreme Court states the case.

      Error assigned was decree dismissing the bill.

      James H. Torrey and D. T. Watson, with them M. J. Martin, for appellant.
    The land was reasonably necessary for the corporate uses of the gas and water company: Keller v. Riverton Water Co., 34 Pa. Superior Ct. 301; In re Providence & Worcester R. R., 17 R. I. 324; Atlanta, Knoxville & Northern Ry. Co. v. Southern Ry. Co., 131 Fed. Repr. 657; Minneapolis, etc., R. R. Co. v. Chicago, Minneapolis & St. Paul R. R. Co., 116 Iowa, 681, 690 (88 N. W. Repr. 1082); Richmond, Frederick & Potomac R. R. Co. v. Johnson, 103 Va. 456 (49 S. E. Repr. 496); Minneapolis Ry. Co. v. Minneapolis & St. Louis Ry. Co., 61 Minn. 502; Contra Costa Ry. Co. v. Moss, 23 Cal. 324.
    The location of the additional line of the defendant company through the land in controversy was not necessary for the purposes of that railroad: Penna. R. R. Co.’s App., 93 Pa. 150; Lake Shore, etc., Ry. Co. v. New York, etc., Ry. Co., 8 Fed. Repr. 858; Pittsburg Junction R. R. Co., 122 Pa. 511; Groff’s Appeal, 128 Pa. 621; s. c., 144 Pa. 150; Scranton Gas & Water Co. v. Northern Coal & Iron Co., 192 Pa. 80-95.
    The proceedings of the defendant, the railroad company, for the condemnation of these lands were not a valid and proper exercise of the power of eminent domain particularly for the purpose covered by the widening and straightening act of 1869: Rocky Glen Water Company v. Scranton Northeastern R. R. Co., 7 Lacka. Legal News, 237; New Brighton & New Castle R. R. Co.’s App., 105 Pa. 13; Williamsport R. R. Co. v. Phila. Co., 141 Pa. 407; Dame’s App., 62 Pa. 417; Pittsburg City v. Kalchthaler, 114 Pa. 547; Penna. Tel. Co. v. Hoover, 209 Pa. 555; Lyon v. Jerome, 26 Wendell (N. Y.), 485; A. & F. R. R. Co. v. R. R. Co., 75 Va. 780.
    Statutes authorizing changes in, the location of railroads are to be construed strictly: Lake Shore, etc., Ry. Co. v. R. R. Co., 149 Ill. 272 (37 N. E. Repr. 91); Hagner v. Pa., etc., R. R. Co., 154 Pa. 475-178; Beale v. Railroad Co., 86 Pa. 509; Neal v. Railroad Co., 31 Pa. 19; O’Brien v. Railroad Co., 119 Pa. 184; Leverett v. Railroad Co., 96 Ga. 385; Chicago R. R. Co. v. Chicago, 149 Ill. 457; Stewart v. Railroad Co., 14 Ohio, 353.
    The minutes of the defendant company at the meeting held May 1, 1906, show that they provided for “the relocating of the present main track between Moscow and Gouldsboro .... and for the relocation and building of the line as recommended.” Strictly speaking to “locate” a road is to complete it because until it is completed it is not a road: Warner v. Callender, 20 Ohio St. 190, 197.
    “Locate” as used with reference to railroads means to put in place: Chicago, etc., R. R. Co. v. Dunbar, 100 Ill. 110.
    “Locate” as used in acts relating to bridges is synonymous with “built:” Everett v. Bailey, 150 Pa. 152.
    The word “locate” in an agreement with a landowner by a railroad company means a railroad as constructed and laid upon the ground: Hoffman v. Bloomsburg, etc., R. R. Co., 157 Pa. 174; Williams v. Odessa, etc., Railway Co., 7 Del. Ch. 303; Railroad Company v. Brewer, 67 Me. 295; Theberath v. Newark, 57 N. J. Law, 309.
    To widen does not import any change of location: Beck v. United Jersey R. R. Co., 39 N. J. L. 45; Leighton v. R. R. Co., 72 N. H. 224.

      John G. Johnson, with him Willard, Warren & Knapp, for appellee.
    The land of the Scranton Gas & Water Company here in controversy.is not held by it for a public use so that none of it can be used for the construction of a public highway over it: Roaring Creek Water Co. v. Girton, 142 Pa. 92; Spring Brook Water Co. v. Kelly, 17 Pa. Superior Ct. 347; R. R. Co. v. Water Co., 182 Pa. 418; Lord v. Water Co., 135 Pa. 122; Commonwealth v. Yost, 197 Pa. 171; Lord v. Meadville Water Co., 135 Pa. 122; Philadelphia & Reading R. R. Co. v. Pottsville Water Co., 182 Pa. 418; Standard Plate Glass Co. v. Butler Water Co., 41 W. N. C. 192.
    June 22, 1909:
    The question of the necessity is vested in the president and managers of the company: Lodge v. R. R. Co., 8 Phila. 345; Tissue v. R. R. Co., 12 Pa. Dist. Rep. 175; Dryden v. R. R. Co., 208 Pa. 316; Bigler v. Canal Co., 177 Pa. 28; Columbia & Port Deposit R. R. Co.'s Petition, 23 Lanc. Law Rev. 396.
    The proceedings were valid: Baker v. Johnson, 2 Hill, 342; State v. Proprietors of Morris Aqueduct, 58 N. J. L. 303; Los Angeles v. Pomeroy, 124 Cal. 597 (57 Pac. Repr. 585); Weidenfeld v. R. R. Co., 48 Fed. Repr. 615; R. R. Co. v. Clarion Land Co., 54 Pa. 28; Williamsport R. R. Co. v. Philadelphia R. R. Co., 141 Pa. 407; Johnston v. Callery, 184 Pa. 146.
   Opinion by

Me. Justice Stewaet,

The Delaware, Lackawanna & Western Railroad Company, a corporation of this state, owning and operating a double-track line of railroad, and invested with right of eminent domain, instituted proceedings in the court of Lackawanna county for the condemnation of certain lands owned by the Scranton Gas and Water Company in said county. The latter company, denying the right of the former to appropriate the lands in question, filed its bill for an injunction to restrain the railroad company from entering upon and taking possession of said lands, or laying tracks, or obstructing the gas and water company in any way in their use and occupancy of the same. No preliminary injunction was issued, inasmuch as the railroad company consented to proceed no further with its work until final hearing. Upon final hearing the bill was dismissed without prejudice. From this decree the gas and water company has appealed. The railroad company claims the right to appropriate these lands under and by virtue of the provisions of the Act of March 17, 1869, P. L. 12, which, among other things, authorizes railroad companies “to straighten, widen, deepen, enlarge and otherwise improve the whole or portion of their lines of railroad .... when in the opinion of the board of directors of any such company, the same may be necessary for the better security or safety of persons and property, and increasing the facilities and capacity for the transportation of traffic thereon, and for such purposes to purchase, hold and use or enter upon, take and appropriate lands and material.” Except as authority can be derived from this act, it does not exist. The change here proposed involves a departure from the line originally adopted and used since 1854 for a longitudinal distance of about four miles, the greatest departure from the old line at any one point being about 2,500 feet, with the result that the line, of railroad will be shortened by a half mile and the total curvature reduced some 323°, with no individual curve exceeding 2°. We do not understand that it is any part of appellant’s contention that the railroad company in making so wide a departure from its original location is exceeding its authority under the act, if in point of fact it is being done for the purpose of straightening the tracks, and if the action taken by the company in so ordering the improvement meets the requirements of the law. The contention is that the change attempted by the railroad company was projected and entered upon, not for the purpose of straightening or widening the company’s tracks, but with a view to relocate its line; that the action taken by the company contemplated nothing beyond this; and that the fact that a reduced curvature and shortened line will result is but an incident which did not enter into the purpose. The assignments of error are twenty-six in number. These have been resolved in appellant’s brief into three distinct questions, clearly and concisely stated, and to them we shall confine the discussion, observing, however, an inverse order.

1. The question first to be considered is thus stated in appellant’s brief: “Were the proceedings of the defendant, the Railroad Company, for a condemnation of this land a valid and proper exercise of the power of eminent domain, particularly for the purposes covered by the widening and straightening act of 1869?” One manifest result of the proposed change, unchallenged, will be the straightening of the railroad tracks, and that too to a most marked degree. As we have seen the reduction of total curvature will be from 473° on the present line to 150° on the new. The mere statement of such fact brings the improvement within the provisions of the act of 1869. It-is of no consequence that the railroad company had in mind other advantages, or that these were the controlling considerations without which the improvement would not have been entered upon: Windsor Glass Company v. Carnegie Company, 204 Pa. 459; Rudolph v. Schuylkill Railroad Company, 166 Pa. 430; Gaw v. Bristol, etc., R. R. Co., 196 Pa. 442; Oliver v. Thompson’s Run Bridge Company, 197 Pa. 344. The inquiry in all such cases must be, not into the conduct of the company, but into the rights conferred upon the company by law. If authorized by its charter to do the thing complained of, the authority of the court' is at an end, no matter what latent design may be developed. The facts in regard to the proceeding taken by the railroad company as preliminary to the improvement are undisputed. In 1895 the president of the company caused various surveys to be made. A new alignment being made, the center line was marked on the ground by stakes. The map showing the location made-by the engineers was submitted by the president to the executive committee of the company on May 1, 1906. The following is the minute of the action taken by that committee: “The President presented plans and estimates of cost of building new third track and relocating present main track between Moscow and Gouldsboro. On motion it was resolved that the change of alignment proposed and recommended be hereby approved, and authority be given to let the necessary contracts for relocation and building of the line as recommended and the building of a third track from Moscow to Gouldsboro, the total estimated cost of which is about 1485,443. Said change will eliminate 320° curvature and shorten the main line 517-1000 of a mile.” On May 31 following, at a meeting of the board of directors, this minute of the executive committee was read, and the action of the committee approved. While the specific purpose in view is not declared in either resolution, and while the change in the line is described as a relocation, it is yet evident what the purpose was, and just as evident that what was intended was a change such as is provided for by the act of 1869, and by that act only. The minute of the executive committee’s action admits of no other construction than that the plans submitted were approved for the reason that the proposed change would accomplish a reduction in curvature and shorten the main line about a half mile. If it included as well the laying of an additional track, that too was within the provisions of the act, for it would be improving a portion of the line by furnishing increased facilities and capacity for the transportation of traffic thereon. Every apparent purpose the company could have had, could have been accomplished under the provisions of the act of 1869, and there is no reason to doubt the company’s good faith. We need not stop to inquire whether the action of the executive committee standing alone would be a sufficient expression of opinion as to the necessity of the proposed change, for it does not stand alone. Final action was taken at a'meeting of the board of directors of the company, before legal proceedings to condemn were begun, confirmatory of all that had been done by the executive committee. By their sanction the board of directors made the action of the committee their own. The court finds that the proceedings were entirely regular and adequate, and in this we concur.

2. “Was the location of the additional line of the defendant company through the land in controversy necessary for the purpose of that railroad, not merely convenient or economical or more desirable, but necessary?” Here is introduced an element that can have no place in the inquiry. The location of the line is not a matter to be considered in determining whether a necessity exists for the improvement. A change of line may be necessary to better secure the safety of persons and property and increase the facilities and capacity for the transportation of traffic, and yet there may be no practical way of accomplishing it; the necessity remains all the same. It is the necessity for the purposes indicated in the act that gives the right; the particular location is a matter to be determined wholly by the party exercising the right. The fact that the land required for the line adopted is corporate property is of no consequence in itself, for corporate property is no more exempt from condemnation than the property of the individual, except as it is impressed with a public use. How far the property here taken is impressed with such public use will be for consideration when we reach the next inquiry. The law commits to the board of directors the determination of the question of the necessity in connection with the proposed change. In this case the board determined that the proposed change is necessary for the purposes indicated in the act, and that is conclusive of the matter: Wilson v. Pittsburg, etc., Railroad Company, 222 Pa. 541. The fact that the board of directors has authorized an expenditure of $400,000 to accomplish the proposed change is substantial evidence that they are acting in good faith. A finding by the court that a necessity existed for the change was not a condition precedent on which the right to make it depended. The act does not intrust to the court any such supervisory power.

3. “Was the land in controversy necessary for the corporate uses, present or future, of the plaintiff, the water company?” If it was, then except as expressed or implied statutory authority for the appropriation of it by the railroad company can be asserted, it may not be taken on the ground of convenience or necessity. The appellant company is also a public service corporation, of no secondary importance whether measured by the character of the service it renders or the number of people it ministers to. It enjoys the right of eminent domain as well. It owns twelve parcels of land lying and adjacent to or close by Roaring Brook, a stream from which it derives the principal water supply for the city of Scranton both for domestic and manufacturing purposes. The railroad traverses the valley of the Roaring Brook and follows closely the line of the stream. The condemnation proceeding contemplates the appropriation of so much of these several parcels as may be necessary for the construction of the new line, consisting of three tracks. The bill filed in the case complains (1) that all of the lands to be condemned are necessary for the corporate use of the plaintiff, were acquired for such purposes, and are already devoted to public use; (2) that the portion of the land proposed to be taken is necessary and essential to the plaintiff for present and future use for reservoirs for the accumulation and storage of water; (3) that no necessity exists for changing the defendant’s line from the southwest side of Roaring Brook where now located to the northeast side so passing through the dam and reservoir sites of the plaintiff company; and that the change of defendant’s line if effected will cause pollution of the water in its construction and operation to the detriment of the health of the inhabitants of the city of Scranton. A large amount of testimony was taken in the case covering not only the present situation with respect to these lands, the uses to which they are now put and their importance in that connection, but the probability of future requirements of the water company in connection therewith. There can be no ground for controversy with respect to the six parcels. It is admitted that the appellant acquired ownership of these subsequent to the railroad company’s appropriation. When so acquired these parcels were already impressed with a public use — the defendant’s right of way having attached — which could not be interfered with by mere purchase of the property. The remaining parcels had long been the property of the appellant company, and, if devoted to public use and essential to the business of the water company, nothing short of express authority or one arising by necessary implication could justify their appropriation by another corporation. Property devoted to public use, including franchise, is subject to eminent domain, and may be taken for other uses; but it is equally settled that it cannot be taken without legislative authority expressed in clear terms, or by necessary implication: Groff’s Appeal, 128 Pa. 621. On the other hand, in the absence of some statutory provision expressly or by implication forbidding it, property devoted to one public use may under general statutory authority be taken for another public use, when the taking will not materially impair or interfere with or is not inconsistent with the use already existing, and is not detrimental to the public: In re Rochester Water Commissioners, 66 N. Y. 413. In either case there must exist a necessity for the taking, and this necessity, as was said in Penna. Railroad Company’s Appeal, 93 Pa. 150, must be one that arises from the nature of things, over which the corporation has no control; it must not be a necessity created by the corporation itself for its own convenience or for the sake of economy. It is to be observed that these principles apply only where a franchise or public use is attempted to be brought under condemnation; they have no application where the property which belongs to a corporation is not in actual use or essential to the exercise of the corporate franchise. The railroad company does not assert anything but general statutory authority to condemn; its right therefore depends in no sense upon its own necessity, but wholly upon what may be the necessities of the water company in connection with the lands which the former seeks to appropriate. The real question in the case is, were those parcels devoted to public use by the appellant, and are they essential to the exercise of its franchise? If not, they stand on the same footing as lands owned by a private individual, and the question of necessity, so far as regards the railroad company, is not in the case. In determining this main question liberal consideration must be paid to the future as well as the existing needs of the water company; but the mere possibility that the land may at some future time become necessary to the exercise of the company’s franchise will not operate to exempt them from condemnation; nor will the fact that the property is at present employed, if the use is not necessary to the exercise of the company’s franchise! It is not contended that when the proceedings in condemnation were begun the lands in question were devoted to public use in the sense that they were actually employed in such use. No established reservoirs or storage plants are within the condemnation. All that is asserted is that the lands were purchased and are being held with a view to their future employment in this way; that if not now essential they are sure to become so by reason of the rapidly increasing demands upon the water company. The learned judge who heard the case found adversely to the appellant’s contention. His twenty-third finding is as follows: “No action appears to have been taken by the Directors of the Water company devoting any of the lands in question to public use. Those on which parcels 1, 2, 3, 4, 5 and 6 are located are believed to have been bought by plaintiff for some purpose connected with the control of the water shed and with an indefinite view on part of Mr. Scranton to the possible location of reservoirs at some future time. Whether the intervening lands acquired last December were bought with the intention of ultimately locating reservoirs there is, under the circumstances, doubtful. The President, who is the owner of ninety per cent of the stock, disclaims definite intention at present but declares his purpose to locate one or more reservoirs there whenever the city shows that more storage is required.” His twenty-fifth finding is, “There appears to be no ground for the conclusion that the proposed railroad improvement will seriously interfere with the construction of all such reservoirs as the water supply will warrant .... hence the lands in question are not essential to the due performance of the water company’s function as required by its charter.” . So too with respect to the complaint that pollution of the water will result from the proposed change. The finding with respect to this is, “13th. The alleged danger of pollution during the period of construction is undisputed and is found to be a fact. But as between the new alignment and the addition of a new track along the old line, such danger is not found to differ appreciably in degree in the one case from the other.”

These were the controlling questions in the case. The court finds distinctly that the lands sought to be condemned are not now employed by the water company in the exercise of its franchise; that there are other available sites for reservoirs adequate for the future of the compány, and that the improvement by the railroad company will not result in increasing water pollution when once established. Were the findings sustained by the evidence? We may concede that the case is in some respects disputable on its facts; but we are far from convinced that the learned judge has erred in any of his conclusions. Indeed, a full and careful examination of the evidence in the light of the exceptions taken has not only satisfied us that his findings are well supported, but has inclined us strongly to a concurrence therein. This is more than enough, since it is our settled rule to disturb the findings of a chancellor only as manifest error-is shown. The law of the case was correctly applied by the learned judge, and the decree entered saves to the plaintiff the right to renew its application should pollution of the water by reason of the change of the railroad become a menace. In view of the findings and the law the appellant could ask for no more,

The assignments of error are overruled, and the appeal is dismissed at the costs of appellant.


source: Caselaw Access Project

author: Mr. Justice Stewart,

license: Public Domain

text:
    Golden, Appellant, v. Mt. Jessup Coal Company, Limited.

      Negligence — Mines and mining — Mine foreman — Act of June 2,1891, P. L. 176.
    1. Inasmuch as the Act of June 2, 1891, P. L. 176, requires the employment by the operator of mines of a certified foreman, and invests such foreman with the power to compel compliance with his directions so far as they relate to the safety of the employees in the mine, an employer cannot be held liable for the mistakes or incompetency of the state’s representative.
    2. If a mine owner has provided a safe place in which his employees may work, but such place is made unsafe by the negligent act of the mine foreman, he is not liable in damages for personal injuries sustained by one of his employees while working in such unsafe place.
    3. Where a mine foreman has negligently placed a prop so close to a mine track as not to allow a sufficient clearance for cars ordinarily employed, the owner is not liable to a workman for injuries caused by coming in contact with the prop; and this is the case although the car, safe for ordinary use, may have swayed somewhat and contributed to the accident.
    June 22, 1909:
    Argued Feb. 24, 1909.
    Appeal, No. 18, Jan. T., 1909, by plaintiff, from judgment of C. P. Lackawanna Co., Sept. T., 1907, No. 1,134, for defendant non obstante veredicto in case of Joseph Golden, minor child of Margaret Golden, by his mother and next friend, Margaret Golden, v. Mt. Jessup Coal Company, Limited.
    Before Fell, Brown, Potter, Elkin- and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Edwards, P. J.
    The facts.are stated in the opinion of the Supreme Court.
    Verdict for plaintiff for $7,500. The court subsequently entered judgment for defendant non obstante veredicto.

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

      John P. Kelly, with him James J. O’Malley, for appellant,
    cited: Ross v. Walker, 139 Pa. 42; Smith v. Coal & Iron Co., 186 Pa. 28; Gulla v. Coal Co., 28 Pa. Superior Ct. 11; Vanesse v. Coal Co., 159 Pa. 403.

      Albert L. Watson, with him W. W. Watson and W. S. Diehl, for appellee,
    cited: Durkin v. Kingston Coal Co., 171 Pa. 193; Lehigh Valley Coal Company v. Jones, 86 Pa. 432; Delaware & Hudson Canal Co. v. Carroll, 89 Pa. 374; Waddell et al. v. Simoson, 112 Pa. 567.
   Opinion by

Mr. Justice Stewart,

This case differs from Durkin v. Kingston Coal Company, 171 Pa. 193, in minor and immaterial circumstances only. The controlling feature in the case is that the plaintiff’s injury resulted from the car on which he was riding, while engaged in work, coming in contact with a prop which had been erected to support the roof of the mine. This prop had been put in place some 'two or three weeks before the accident by a mine foreman who was duly certified as such under the law. The evidence shows that the body of the cars ordinarily used extended beyond the track at either side some twelve or fourteen inches, while the distance of the prop from the nearest rail was at most not more than eighteen inches. This evidence might well warrant the inference of negligence in maintaining the prop where it allowed a clearance of no more than three or four inches. Here we have the proximate cause of the accident; but where did the responsibility rest? The accident occurred before the passage of the employers’ liability Act of June 10, 1907, P. L. 523. In Durkin v. Coal Company, 171 Pa. 193, a ease which has never been questioned, but has repeatedly been recognized as sound in principle, it was held that, inasmuch as by the Act of June 2, 1891, P. L. 176, the state requires the employment by the operator of mines of a certified foreman, and invests such foreman with the power to compel compliance with his directions so far as they relate to the safety of the employees in the mine, an employer cannot be held liable for the mistakes or incompetency of the state’s representative. And further it is there held, following the doctrine of the earlier cases, notably Waddell v. Simoson, 112 Pa. 567, that a mine foreman is a fellow servant with the other mine employees of the same master, engaged in a common business, and that the employer is not liable for injuries caused by the negligence of the foreman. These principles apply here. There was evidence in the case that the car on which plaintiff was riding was an old car, and swayed somewhat from side to side, and it is argued that but for this circumstance the accident would not have happened. But it nowhere appears that the car was defective in any of its parts, that it was any different from those generally employed or that it was in any way unfit or insecure for the ordinary use to which it was put. However the fact that it swayed may have contributed to the accident, it was not the proximate cause; that is to be found in the placing of the prop so close to the track as not to allow sufficient clearance for cars ordinarily employed. A common-law duty rests upon the employer to provide a safe place for his employees in which to work; but if he has provided a safe place which has been made unsafe by the act of the mine foreman whose authority may not be questioned, and whose direction must be complied with under penalty, he has met the full measure of his duty, and he is not to be charged with civil responsibility for a condition which he did not bring about, and which he could not control.

The case called for judgment non obstante, and the judgment is affirmed.


text:
    Cutler’s Estate.

      Orphans’ court — Jurisdiction—Title to personal property — Gift— Mental capacity — Issue—Trial by jury.

    1. Where a daughter receives certain securities belonging to her father, and receipts for them as his agent, and after her father’s death omits from the inventory filed by her as sole executrix, certain of such securities on the ground that they had been given to her by her father, and at the audit exhibits deeds of gift for the securities,, the orphans’ court has no jurisdiction to take testimony and finally determine whether such deeds were invalid because of the mental incapacity of the grantor at the time they were executed. In such a case it is the duty of the court without the request of either party to direct an issue for trial in the common pleas as provided by the Act of March 29,1832, P. L. 190. There is no duty upon the executrix to ask for an issue.
    2. The orphans’ court is a court of limited jurisdiction exercising only such power as is given it by statute, expressly or by necessary implication. There is no authority conferred upon the orphans’ court by the Act of June 16,1836, P. L. 784, to take testimony and determine in limine whether personal property claimed by an executrix as her own, was or was not the property of the testator. The executrix is entitled to stand upon her constitutional privilege of having the question of her title to the property passed upon by a jury.
    Argued March 1, 1909.
    Appeal, No. 156, Jan. T., 1908, by Jennie M. Stroup, from decree of O. C. Berks Co., Nov. T., 1907, No. 11, dismissing exceptions to adjudication in Estate of James Cutler, deceased.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Keversed.
    Exceptions to adjudication. Before Bland, P. J.
    The opinion of the Supreme Court states the case.

      June 22, 1909:

      Error assigned amongst others was (7) the decree surcharging the accountant.

      Jeff. Snyder, of Snyder & Zieber, with him Ira P. Rothermel, for appellant.
    The appellant having shown that she held the moneys and securities in dispute adversely and as gifts bestowed upon her by the testator in his lifetime, the orphans’ court had no jurisdiction to go beyond the prima facie title shown by the appellant and surcharge her with the value of these gifts in adjudication of her account: Friedman’s Est., 7 Pa. Dist. Rep. 517; Straley’s Est., 10 York Leg. Rec. 204; Fretz’s App., 4 W. & S. 433; Curran’s Est., 9 Pa. C. C. Rep. 514; Webb’s Est., 32 Pa. C. C. Rep. 182; Eisenmann’s Est., 12 Pa. Dist. Rep. 322; Hirsh’s Est., 9 Del. Co. 593; Odd Fellows S. Bank’s App., 123 Pa. 356; Tyson’s Est., 191 Pa. 218; Wendt’s Est., 14 Pa. Superior Ct. 644; Coleman’s Est., 193 Pa. 605.

      Cyrus G. Derr, with him Stephen M. Meredith, for appellees,
    cited as to the jurisdiction of the court below: Brittain v. Kinnaird, 5 Eng. Com. Law, 725; United States v. Sanders, 27 Fed. Cases, 950.
   Opinion by

Mr. Justice Stewart,

For some years before his death the testator, James Cutler, by 'reason of the infirmities of age, was unequal to the active management of his estate. He intrusted the control of his business to his son, J. Howard Cutler, and committed to him the safe-keeping of his securities. Upon the death of the son, the latter’s executors turned over to the appellant the securities belonging to the testator, aggregating upwards of $6,000, taking & receipt therefor in which the securities were specifically enumerated and described. The appellant was then a married woman and the testator made his home with her, she being his- only surviving child. The will, executed before the death of the son, appointed son and daughter executors; but the former having died in the lifetime of his father appellant became sole executrix. A number of the items which she had receipted for to the executors of the son as property belonging to her father,, were omitted from the inventory she filed. A citation was issued at the instance of the children of J. Howard Cutler, deceased, calling upon the executrix to show cause why she should not be required to file an additional inventory. To this she made answer that the testator in his lifetime had parted with the securities omitted from the inventory, and prayed that the citation be dismissed. Issue being joined the matter was inquired into, but without definite result. Later on when appellant filed her account as executrix, exception was taken on the ground that she had not charged herself with these securities; and it was agreed that the evidence taken in the citation proceeding should be considered as taken under this exception. Appellant’s contention was that the omitted items were her own individual property; that the money and securities involved had been given her by the testator in his lifetime; and in support of her claim she presented several written and sealed instruments transferring the property to her by way of gift. The genuineness of the signature of James Cutler to these several papers was not questioned, but their sufficiency was denied on the ground that Mr. Cutler was not mentally competent to make a valid gift at the time. And this states the issue that was tried before the auditing judge. He sustained the exceptions and decreed a surcharge to the extent of the omitted items. The appeal is from this decree. There is but a single feature of the case that calls for present consideration' — had the orphans’ court jurisdiction to determine the issue thus raised? Its authority is challenged by the seventh assignment of error.

It is a familiar doctrine, too familiar to call for any citation of authorities, that the orphans’ court is a court of limited jurisdiction, exercising only such power as is given it by statute, expressly or by necessary implication. Except as the authority exercised by the court below in the present case can be derived from the Act of June 16, 1836, P. L. 784, it is safe to conclude that it nowhere exists; for while by subsequent legislation the jurisdiction of this court has perhaps been widened, as its power has certainly been enlarged, it is not pretended that with respect to such controversies as the present, any change has been effected. Our inquiry involves only a consideration of the act referred to, and only so much of that as is to be found in the eighth paragraph of sec. 19, wherein it is provided that the jurisdiction of the several orphans’ courts shall extend to “All cases within their respective counties wherein executors, administrators, guardians or trustees may be possessed of, or are in any way accountable for, any real or personal estate of a decedent;” with the further provision that “ such jurisdiction shall be exercised under the limitations and in the manner provided by law.” We need not stop to inquire into the distinction here made between property in possession of an executor and property for which the executor is accountable. The latter is the more general term and together they embrace all that was owned by the testator at the time of his death. In either case ownership by the testator at the time of his death is antecedently implied, and where such ownership can be affirmed with respect to any property, the executor is charged with accountability therefor, whether in or out of his possession, and the jurisdiction of the proper orphans’ court over both is complete. It is a doctrine equally familiar that once the jurisdiction attaches the court has full power to inquire into and determine all questions standing directly in the way of a conversion and distribution of the property, that is, the property of the decedent. Stated conversely, the jurisdiction of the orphans’ court is limited to the estate of which the testator died seized. With respect to such estate it has .full jurisdiction; but this marks its ultimate limit. Whether a specific article of property belongs to the estate, is a question standing in limine; if it does not, the executor is not accountable therefor, and it is beyond the power of the court to control it in any way or charge liability on anyone in connection therewith. Presumably every item of property an executor has included in his inventory belongs to the estate, and for all such he must account. The inventory is an admission on his part that the property embraced in it came into Ms possession as the legal representative of the testator. If it be claimed that testator owned other property which either came or should have come into the hands of the accountant, the burden is upon the party so claiming to show first of all that the omitted property was the property of the testator. Where this is denied and a claim of ownership in another is set up, may not the court inquire as to the fact in issue? Within certain limits unquestionably it may. If at testator’s death the property is shown to have been in his possession, or if for any other reason it was presumptively his, a mere denial of his ownership unsupported will not oust the court of its jurisdiction, but the court may proceed with the investigation so far as to inform itself whether the denial is made in good faith and a substantial dispute exists. If the dispute be a substantial one, and the title be really involved, may the court further proceed to settle and determine the matter in dispute? Certainly no authority to do so can be found within the terms of the statute, and we think it quite as clear that it cannot be implied from anything in the act. Suppose the property to be in possession of a third party who claims to have purchased it from the testator. Such person is not under the jurisdiction of the orphans’ court, and that court has no process by which his appearance before it can be compelled. Neither is the property under its jurisdiction, and it is without process to enforce its surrender. Until a common-law court, through a jury, shall have decided against the adverse claimant in an action to which he has been a party, the latter may set at defiance any order or decree of the orphans’ court affecting it. The mere fact that the orphans’ court would be powerless to reach any result in such case is sufficient to defeat a claim of jurisdiction by way of implication. But, it may be replied, here the executrix is in court, subject to its jurisdiction, and that this must be said as well of the property which is in her possession. True, as executrix she is in court; but as Jennie M. Stroup, individually, she is not. The orphans’ court has jurisdiction over her in her representative character and over the property which she holds as executrix; but with respect to her individual rights of property she stands as clear of the power of the court as any third party. One of these rights that ought not to be questioned at this late day is the right to have her Qase tried by a jury; a right not subject to be defeated or abridged by legislative enactment. “No power in our government,” says Mr. Justice Strong, in North Penna. Coal Co. v. Snowden, 42 Pa. 488, “ can take from the litigant the right to have his case tried by a jury substantially in the mode arid with the same effect as that which belonged to jury trials in similar cases when the constitution of 1776 was adopted.” That early constitution provided that “in controversies respecting properties, and in suits between man and man, the parties have a right to a trial by jury,” and the provision in all our later constitutions is that “trial by jury shall be as heretofore, and the right thereof remain inviolable.” Nor can this right be taken away by implication; nothing short of an express surrender of it will be allowed to defeat a demand for its exercise: Trimble’s Appeal, 6 Watts, 133. Now how stood this case? The exceptants showed that the securities for which a surcharge was asked, had been received by the accountant as the agent of the testator a year before the latter’s death. Presumably the relation of principal and agent had continued, and the burden was upon the accountant to show an accounting in the lifetime of the testator. She met and overcame the presumption against her by submitting written assignments of these securities to herself, sealed and executed by the testator. The genuineness of the assignments was conceded, and their sufficiency in law to accomplish a valid transfer of the property was not questioned, except on the ground that the testator at the time he executed them was not of sufficient understanding. Such muniments of title as those upon which this accountant here rested may be overcome, and oftentimes are, but the assault upon them cannot be carried on in the orphans’ court. All that court can do when a deed duly authenticated, regular upon its face, is impeached on the ground of fraud, or, as in this case, on the ground of incompetency in the maker, and the evidence in support makes out a prima facie case against the integrity of the instrument, is to send the question and the parties into that court which alone has jurisdiction to determine questions of title. We must assume that the evidence offered by the exceptants showed a substantial dispute as to the validity of the written assignments. The question thus presented was a preliminary one on the determination of which the jurisdiction of the orphans’ court depended. It was not a question standing in the way of distribution, for the property had not been recovered by the estate, and its ownership was in dispute. When it is said that the orphans’ court has jurisdiction to decide all questions standing in the way of distribution, the reference is to property which admittedly is the property of the estate, or has been so established. Having once determined that a substantial dispute existed as to the ownership of these securities because of the testator’s condition of mind when he executed the assignments produced, the court should have at once directed an issue to the common pleas as it is empowered to do by the Act of March 29, 1832, P. L. 190. A verdict upon the issue would have.been more than advisory; unreversed, it would have been conclusive. “ When in the progress of an investigation like this, it becomes material to settle a doubtful fact, and an issue is made up for that purpose and tried, the verdict of the jury ought to be taken as conclusive, unless it was produced by the admission of illegal or the rejection of legal evidence : ” Wills’s Appeal, 22 Pa. 325. Again, it is said in Craig’s Appeal, 77 Pa. 448, a case where an issue had been directed, “The order for the issue was most discreetly made. The case was one which peculiarly required the intervention of a jury of plain business men, and an investigation of the questions in dispute by them under the legal guidance of an experienced judge. There is no other form of inquiry so thorough, so unprejudiced, so accurate and so safe. The verdict was allowed to stand, and it should have controlled the decree of the orphans’ court.” It is quite true that a verdict in the issue adverse to this appellant would not have brought within the jurisdiction of the orphans’ court the specific property which was the subject of the contention; but that court having jurisdiction over the accounts of the executor, and accepting such verdict as conclusive of the question, could have decreed a surcharge against the accountant to the extent of its value, just as in the case where property of the estate is shown to have been lost through the neglect of an accountant. Instead, however, of directing an issue into the common pleas the judge of the orphans’ court proceeded to hear and adjudge finally the rights of the parties with respect to the property in dispute. In this he was exercising a jurisdiction which did not belong to the court over which he presided. It comes to nothing that the appellant did not ask for an issue. Her title to the property was not endangered except as an issue was granted. It was not for her to ask an issue, but it was the duty of the court, once convinced that the dispute was substantial, independently of both to direct it. It may be said with much confidence that not a case is to be found in our books recognizing any contrary doctrine to that we have here asserted; certainly not one has been called to our notice that is even equivocal on the point here raised. It has never been regarded as an open question so far as concerns real estate; and no reason can be suggested why anything different should have been contemplated with respect to personal property. Both as we have seen are placed on the same footing in the act conferring jurisdiction upon the orphans’ court.

The seventh assignment of error is sustained. A consideration of the other assignments is unnecessary. The decree is reversed and the record is remitted, the case to be proceeded with in the manner indicated in this opinion.


author: Mr. Justice Fell,

text:
    Kauffman v. Nelson, Appellant.

      Negligence — Automobiles—Alighting from street car — Duty to look.

    1. Where a passenger alights from a street car, it is his duty to look where he is going, and not to rush blindly into danger. Such a person is not relieved from the charge of contributory negligence if without looking he takes two steps from the car and then suddenly seeing an automobile, stops and is run down and injured.
    2. It is the duty of a person operating an automobile who sees a street car standing at a regular stopping place, to exercise very great care in passing it, to avoid injury to persons going to or from it.
    Argued March 8, 1909.
    Appeal, No. 267, Jan. T., 1908, by defendant, from judgment of C. P. Franklin Co., Dec. T., 1907, No. 38, on verdict for plaintiff in case of Marie Kauffman v. Thomas M. Nelson.
    Before Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Gillan, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Defendant presented the following points:
    3. If the jury believe from the evidence that when the plaintiff stepped from the car she failed to look whether a vehicle was approaching, and that, with the automobile coming toward her plainly in her view, if she chose to look, she took the risk of getting across the street in front of it, she was guilty of such contributory negligence as will defeat her recovery in this case. Answer: That point is not affirmed as written. If, however, the plaintiff saw the vehicle coming and by standing still could have avoided it, but chose to cross the street immediately in front of it, she was guilty of contributory negligence and cannot recover. [1]
    4. If the jury believe from the evidence that when the plaintiff alighted from the car the automobile of the defendant was approaching her at a distance from her of twenty to thirty feet, or thereabout, and in her plain and unobstructed view, if she chose to look, it was negligence in her under such circumstances to attempt to cross the street in front of the automobile, if the jury further believe that by standing at the foot of the car steps the automobile would have passed her in safety. Answer: That point is affirmed. If you believe that she saw the automobile coming, and by standing still when she saw it, it would have passed her without striking her, she was guilty of contributory negligence; but you will remember the testimony; what she says about it, and what the others say about it. [2]
    Verdict and judgment for plaintiff for $4,666.95. Defendant appealed.

      Errors assigned among others were (1, 2) above instructions, quoting them.

      June 22, 1909:
    O. C. Bowers, with him J. R. Ruthrauff and W. O. Nicklas, for appellant.
    Plaintiff having voluntarily placed herself in a position of danger, and having taken the risk, after seeing the automobile comparatively close upon her, of crossing the street in front of it, and there being no conflict of testimony as to this, we submit that the question of her contributory negligence was one of law for the court and not one of fact for the jury, and that the court should have given binding instructions in favor of the defendant: Gray v. Traction Co., 198 Pa. 184; Tyson v. Union Traction Co., 199 Pa. 264; Flanagan v. Railway Co., 163 Pa. 102; Greer v. Tyson, 185 Pa. 356; Baker v. Fehr, 97 Pa. 70.
    It was the duty of the plaintiff to look out for approaching vehicles when she stepped from the car into the street: Harris v. Commercial Ice Co., 153 Pa. 278; Baker v. Fehr, 97 Pa. 70; Schmidt v. McGill, 120 Pa. 405; Hennessey v. Taylor, 189 Mass. 583.

      William S. Hoerner, with him Sharpe & Elder, for appellee.
    The case was properly submitted to the jury: McCracken v. Traction Co., 201 Pa. 378; Baker v. Fehr, 97 Pa. 70; Schmidt v. McGill, 120 Pa. 405; Hennessey v. Taylor, 189 Mass. 583; O’Brien v. Lavin; 11 Pa. Dist. Rep. 729; Christian v. Commercial Ice Co., 3 Pa. Superior Ct. 320; Railway Co. v. Hudgins, 7 L. R. A. (n. s.) 152; Shaffer v. Coleman, 35 Pa. Superior Ct. 386; Bodge v. Philadelphia, 167 Pa. 492; Gregory v. Slaughter, 8 L. R. A. (n. s.) 1228; Simeone v. Lindsay, 65 Atl. Repr. 778.
   Opinion by

Mr. Justice Fell,

This action was to recover for injuries alleged to have been caused by the negligence of the defendant in driving his automobile. The plaintiff got off the rear platform of a trolley car that was standing at a regular stopping place, but not at a street crossing, in Chambersburg. The distance between the car steps and the curb was fifteen feet. What the plaintiff did after she had stepped from the car is left by the testimony in her behalf in some doubt. She testified that she left the car with a “swinging step” and walked directly towards the foot pavement; that she first saw the automobile after she had taken two steps in the street and was five or six feet from the car, and it was then fifty or sixty feet away and approaching the front of the car; that she would have reached the pavement in safety if the automobile had been kept in a straight course, but that it was turned towards the curb, and it struck her as she was stepping on the pavement. At one time she said that she did not look at all to see whether anything was coming on the street until she had taken two steps after alighting from the car; and at another time she said that she looked at the automobile and at the curb as she was taking these two steps to see whether she could get across. Her witnesses testified that the automobile was within twenty or thirty feet of her as she stepped from the car and that after taking two steps she halted or hesitated and looked back over her shoulder. They confirmed the defendant’s account of the matter, which was that, when the plaintiff stepped from the car and advanced directly in front of his automobile, he turned towards the car in order to pass behind her and that, when she hesitated and indicated by her movements that she was going back towards the car, he turned in the opposite direction towards the curb.

Under all the testimony the case was for the jury, and the only question to be considered is whether there was error in the instruction under which it was submitted. The points for charge, recited in the first and second assignments of error, raise the question of the duty of the plaintiff to look for an approaching vehicle when she stepped from the car to the street. The answers to the points relieved her from all duty to look and made her chargeable with contributory negligence only if she saw the automobile and by standing still could have avoided injury. The answers of the court do not correctly state the law. It was the duty of the defendant, who knew the car was at a regular stopping place, to exercise very great care in passing it to avoid injury to persons going to or from it. A high degree of care is required of the driver of a vehicle in passing a car which has stopped to receive or discharge passengers, but others are not relieved from the obligation of attention and care. There rested also upon the plaintiff the duty to look where she was going and not to rush blindly into danger. The duty to look and to exercise care and vigilance rests at all times upon everyone in the use of streets. In Harris v. Commercial Ice Co., 153 Pa. 278, it was said by the present chief justice: “People are not entitled to walk the streets with closed eyes and inattentive minds. There is no situation in life, involving danger whether much or little, in which the law does not require a due and proportionate amount of care and attention. Even on a city street a man must heed what he is doing and where he is going, or he cannot complain of the consequences. This is the rule even on the sidewalk, Robb v. Connellsville Borough, 137 Pa. 42, and when he steps into the cartway he is equally bound to remember that horses and vehicles have also a right of way there, to which he must give due attention or he will be barred of complaint as to the consequences.” An instruction that relieves the plaintiff from the duty of looking and holds him responsible only in case he saw cannot be approved.

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


text:
    Pennsylvania Stave Company’s Appeal.

      Judgments — Setting aside judgments — Expiration of term — Equitable relief — -Ignorance of the law.

    1. Judgments by confession or upon default remain indefinitely within the control of the court, and upon proper cause shown may be opened up or vacated at any time; but not so with respect to judgments obtained adversely. The power committed to the discretion of the court with respect to the latter ends with the expiration of the term at which the judgment was entered, unless there are equitable grounds for interference. Ignorance of the law, however, is not a ground for equitable relief.
    2. Where an appeal is taken to the common pleas from a tax assessment by the county commissioners acting as a board of revision, and before the appeal is heard the parties agree to an adjustment, and the court enters a judgment pursuant to the agreement, such judgment is adverse, and cannot be set aside after the expiration of the term at which it was entered, in the absence of any ground for equitable relief. The fact that a petition had been presented on the last day of the term in which the order had been 'made asking for its vacation, and that a rule had issued thereon, does not in any way change the situation.
    Argued March 15, 1909.
    Appeal, No. 196, Jan. T., 1908, by The Pennsylvania Stave Company, from order of C. P. Bradford Co., Sept. T., 1907, No. 97, setting aside judgment In re Appeal of the Pennsylvania Stave Company from assessment of its property in Barclay Township.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Appeal from tax assessment. Before Fanning, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was order setting aside the judgment.

      Chas. M. Culver, with him John C. Ingham, for appellant.
    The court had no authority to open, vacate and set aside the decree which was not entered by default or confession, after the term ended: Com. v. Mayloy, 57 Pa. 291; Kensington & Oxford Turnpike Co., 97 Pa. 260; Sheppard’s Contested Election, 77 Pa. 295; King v. Brooks, 72 Pa. 363; Mather v. Patterson, 33 Pa. 485; Fisher v. Ry. Co., 185 Pa. 602; Abeles, etc., Co. v. Powell, 6 Pa. Superior Ct. 123; Lance v. Bonnell, 105 Pa. 46.
    In no case is ignorance or mistake of the law with the full knowledge of the facts, per se a ground for equitable relief: Norris v. Crowe, 206 Pa. 438.

      M. E. Lilley, of Lilley & Wilson, with him William Maxwell and W. E. Lane, for appellee.
    The court had authority to vacate the decree during the term or afterward and especially when promptly moved to do so and when rule was obtained during the term: Knobcouch to use of Burkert v. Heffron, 15 Pa. C. C. Rep. 636; Pantall v. Dickey, 123 Pa. 431; Nescopeck Bridge, 120 Pa. 288; King v. Brooks, 72 Pa. 363; Earnest v. Hoskins, 100 Pa. 551; Lingenfelter v. Coal & Iron Co., 84 Pa. 328; Ferguson v. Pittsburg, 159 Pa. 435; Penna. Coal Co. v. School Dist., 9 Lackawanna Jurist, 118.
    June 22, 1909:
   Opinion by

Me. Justice Stewaet,

The appeal of the Pennsylvania Stave Company from the decision of the county commissioners acting as a board of revision, in the matter of the assessment of the company’s property for taxation to the court of common pleas, was unquestionably an adverse proceeding; and the order of the court therein in the nature of a final judgment, though reached through agreement of the parties, was in its character adversary, quite as much as would be a judgment on a verdict. With respect to their conclusiveness such judgments differ essentially from judgments entered by confession or upon default. The distinction between them is very clearly pointed out in a number of our cases, notably in Castle v. Reynolds, 10 Watts, 51, and King v. Brooks, 72 Pa. 363. Judgments by confession or upon default remain indefinitely within the control of the court, and upon proper cause shown may be opened up or vacated at any time; but not so with respect to judgments obtained adversely. The power committed to the discretion of the court with respect to the latter has a fixed limitation. The cases cited, and to these may be added, Stephens v. Cowan, 6 Watts, 511, and Fisher v. Railway Co., 185 Pa. 602, hold, in the most conclusive way, that at the expiration of the term at which it was entered the common-law power of the court to set aside a judgment regular on its face, ends. In the present case we are concerned only with the common-law power of the court. The order setting aside the final adjudication in the matter of the assessment of appellant’s land is not based on considerations of fraud in its procurement, or any other matter which could call into exercise the equitable power of the court. Therefore it can have no other warrant than can be found in the common law, and by this it must be judged. It was not made until after a whole term had intervened. The fact that a petition had been presented on the last day of the term in which the original order had been made asking for its vacation, and that a rule had issued thereon, does not in any way change the situation. The authorities above cited are to the effect that the power of the court ends with the term. It would be strangely inconsistent to hold that the power of the court ended with the term, and yet hold that the court could by its own act prolong its power, and that too indefinitely by the issuing of successive rules.

We have said that there was nothing in the case calling for equitable interference. If there had been'the ending of the term would not necessarily preclude relief. The learned judge very properly accompanied his order of vacation with a statement of his reasons, and we are left in no doubt as to the considerations which influenced the mind of the court. The whole controversy before the commissioners, and the only question raised on the appeal to the court, was whether certain property assessed against the stave company was real or personal. If the latter, it was agreed that it was not taxable. When the case came on to be heard in the common pleas an adjustment was reached by agreement between the commissioners and the stave company involving a reduction from the assessment, and the court was asked to decree in accordance with the agreément. The only averment in the petition for vacation of the decree was that at the time the agreement of adjustment was made the commissioners and their counsel were of opinion that the stave company's assessment was upon property which the law regarded as personal, and that in a recent decision, unknown to them then, property of like character has been held to be real estate. The learned judge in the statement of his reasons assumes nothing with respect to the character of the property assessed, or as to the application of the decision relied upon to the facts here, but concludes that inasmuch as the decree was made without hearing the evidence and finding the facts, pursuant to an agreement which he holds to have been improvidently made, the decree should be set aside. Whether or not the agreement on the part of the commissioners was improvident was a matter that could not be inquired into; it is enough to know that the commissioners had the power to adjust the matter in dispute, and the court was within its power in deciding according to the terms agreed upon. The result reached was nothing more than the commissioners could have accomplished by their own action at any time without the court’s intervention. Admitting that the agreement was entered into in ignorance of the law — on no other ground can it be said to be improvident — this fact would not call for equitable interference. “In no case is ignorance or mistake of law with a full knowledge of the facts per se a ground for equitable relief:” Norris v. Crowe, 206 Pa. 438. The facts with respect to the nature and location of appellant’s property were just as well known to the commissioners when the agreement was made as at any time after, and they had the same opportunity to acquaint themselves with the law as the appellant. The case calls for no further discussion. The final order when set aside had ceased to be within the breast of the court, the term in which it was made having expired. Nor was there anything in the case calling for equitable interference by the court.

The order making absolute the rule for the opening, vacating and setting aside the final decree entered in the appeal from the board of revision and appeal is reversed, at the cost’ of the appellee, and the original decree is reinstated.


text:
    Bierly, Appellant, v. Philadelphia & Erie Railroad Company.

      Railroads — Widening and straightening road — Dwelling home— Eminent domain — Act of March 17, 1869, P. L. 12.
    Under the Act of March 17, 1869, P. L. 12, a railroad company may take by condemnation proceedings ground occupied by a dwelling house, not only for the purpose of widening, but also for straightening its line. Dryden v. Ry. Co., 202 Pa. 316, followed and explained.

      June 22, 1909:
    Argued March 15, 1909.
    Appeal, No. 6, Jan. T., 1909, by plaintiffs, from decree of C. P. Clinton Co., Jan. T., 1907, No. 1, dismissing bill in equity in case of Jonathan B. Bierly et al. v. Philadelphia & Erie Railroad Company.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Hall, P. J.
    The opinion of the Supreme Court states the facts.
    Error assigned was in dismissing the bill.

      Max L. Mitchell, with him W. C. Kress, for appellants.

      T. C. Hippie, for appellee.
   Opinion by

Mr. Justice Stewart,

It has passed beyond controversy that a railroad company in widening its line under the provisions of the Act of March 17, 1869, P. L. 12, may appropriate by condemnation proceedings ground occupied by a dwelling house standing in the way of the improvement. This much is settled in Dryden v. Ry. Company, 208 Pa. 316. It would be a strange reasoning that would restrict this legislative grant of power to cases of widening the road, when the act of assembly which allows it for that purpose, by equally express terms, gives it where the purpose is either to straighten, deepen, enlarge or otherwise improve the whole or portions of the railroad. And yet that is the contention of the appellant here. In the present case the purpose of the railroad company is to straighten its line of road in order to meet the necessity that is upon it, and it seeks to appropriate to that end the appellant’s dwelling house which stands upon the proposed new line. The argument makes no attempt to derive from the language of the act, even by implication, an intention to confer larger power in connection with the widening of the road than in straightening it. The same considerations were relied upon in the Dryden case as making against the claim of right on the part of the railroad company, as are here again pressed upon our attention. Since they suggest nothing by way of distinguishing between the right to appropriate for widening purposes and the right to appropriate for straightening, they need not be considered. In the Dryden case we distinctly held that these could not be allowed to defeat the manifest purpose of the act, and the end of that controversy was there reached. Nothing additional is here urged, except-that a single sentence in the opinion in the Dryden case is referred to as a judicial construction of the act of 1869 limiting the right to condemn dwelling houses to cases of widening. It occurs in that part of the opinion which is an answer to the argument that because the extent of the right to take for purposes of widening was undefined and unlimited in the act, a legislative intent that the restrictions of the earlier acts were to remain was to be inferred. This is the sentence: “The power to take for purposes of widening is confined to a taking for that purpose alone.” It is only by eliminating its most pregnant terms that the sentence can be made to serve the purpose of the appellant. Where the avowed purpose in taking is a widening of the line, more may not be taken than is necessary to accomplish this one thing. The whole effect and purpose of the expression is to make clear that any attempt to appropriate in excess of what was necessary for that particular purpose would not be within the act. The same could be said with respect to a taking for purposes of straightening the road. The restriction in either case is upon the quantity of land taken; it must be confined to what is necessary for the avowed purpose, whichever of those allowed by the act may be.

The appeal is dismissed at costs of appellant.


author: Mr.- Justice Elkin,

text:
    Broad Street Widening.

      Road law — Widening streets — Damages—Benefits—Act of May 20, 1891, P. L. 101.
    In a proceeding to assess damages for land taken by á city to widen a street, the benefits and special advantages which may accrue to the part or tract of land not taken or injured by the improvement, must be taken into consideration in determining the difference in value before and after the appropriation. Where land has been so appropriated and used, there is no reason why the damages to the property may not be reduced or entirely overcome by the benefits which may have accrued to it.
    Argued March 22, 1909.
    Appeal, No. 350, Jan. T., 1908, by the City of Philadelphia, from order of C. P. No. 1, Phila. Co., Dec. T., 1905, No. 4,735, dismissing exceptions to report of referee In re Widening of Broad Street from Moyamensing Avenue to Government Avenue.
    Before Mitchell, C. J., Fell, Mbstrezat, Potter and Elkin, JJ.
    Reversed.
    Exceptions to report of Henry F. Walton, Esq., referee. Before Brégy, J.
    The exceptions amongst other's were as follows:
    29. Because the referee erred in not considering the difference between the owner’s participation in the general public benefit and his enjoyment of such particular and local benefit as abutting property receives, in addition to the par-' ticipation in the general public benefit. [6]
    6. Because the referee erred in not finding that the benefits arising from a frontage on a wider street should be considered in mitigation of any depreciation in value due to loss of ground taken for the widening. [10]
    28. Because the referee erred in not considering the effect upon the value of the property after the change, due to the proximity of the general public improvement, as approved in Bond v. Phila., 218 Pa. 475. [13]

      Errors assigned among others were (6, 10, 13) in dismissing exceptions as above.

      James Alcorn, assistant city solicitor, with him Henry J. Gibbons and J. Howard Gendell, city solicitor, for appellant.
    Many cases could be cited in which a different view is held than that declared by the referee. We will refer to some of them: Mahaffey v. Railroad Co., 163 Pa. 158; Aswell v. Scranton, 175 Pa. 173; Ry. Co. v. Reed, 44 Legal Int. 92; Phila. v. Linnard, 97 Pa. 242; Allegheny v. Black, 99 Pa. 152: Cox v. R. R. Co.. 215 Pa. 506.

      June 22, 1909:

      John H. Maurer, for appellee.
    It is not questioned that the municipality in the exercise of its right of eminent domain may elevate the grade of streets to install sewers, but if in so doing injury is inflicted upon the owner of property the city must make due compensation. No matter how laudable the city’s intention may be it must make compensation for damage occasioned: McHale v. Transit Co., 169 Pa. 416.
    ”A referee’s findings of fact have the same conclusiveness as the verdict of a jury, and when based upon sufficient evidence and confirmed by the court below, will not be reversed in the absence of manifest error: Whiteside v. Whiteside, 35 Pa. Superior Ct. 481; Hotchkiss v. Roehm, 181 Pa. 65; Gas Co. v. Gas Co., 186. Pa. 443; Snyder v. Rainey, 198 Pa. 356; Speer v. Huidekoper, 221 Pa. 448.
   Opinion by

Mr.- Justice Elkin,

The appellee is the owner of a tract of what is known as meadow land located in the southern section of the city near the Delaware river containing a little over nine acres. In order to provide for the growth, development and improvement of that section the city by ordinance provided for the widening and elevation of Broad street, for the laying out of a public park, and for the construction of a sewer system to drain the territory. The property involved in this proceeding is three feet below city datum which means three feet lower than extreme high tide and one foot below mean high tide. In carrying out this plan of city improvement Broad street was widened and elevated, and in so doing a strip of appellee’s land twenty-three and one-half feet wide and 460 feet long was appropriated and made part of the widened street. The amount of land actually taken is about one-quarter of an acre, and the damages awarded were $39,875. It is difficult to understand upon what theory of assessing damages such a result could be obtained. Ordinarily, the construction of a boulevard, the laying out of a public park, and the installation of a sewer system through and upon lands of this character add to their value instead of depreciating it. It is true Broad street was elevated several feet above the surface of the land in question, and this to some extent damaged the property. On the other hand, the widening of the street, the construction of the boulevard, and the other added improvements, should and no doubt did add value to the property. An examination of this record forces the conviction that these things could not have been taken into consideration by the witnesses in estimating and by the learned referee in determining the difference in market value before and after the taking. In a recent case it was said that whatever affects the value of the land in the estimation of the general buyer, whether to raise or depress, may be shown, and should be considered in ascertaining the damages: Bond v. Philadelphia, 218 Pa. 475. The benefits and special advantages which may accrue to the part or tract of land not taken or injured by the improvement should be taken into consideration in determining the difference in value before and after the appropriation: Cox v. Railroad Co., 215 Pa. 506. Again, it was held in Edsall v. Jersey Shore Boro., 220 Pa. 591, that the benefits accruing to a particular property by reason of improving and paving the street may be shown and should be considered in estimating the amount of damages claimed by the abutting owner. While the earlier cases did indicate a different rule, it is clear that in street opening, widening and grading cases, the act of 1891 provides not only for the ascertainment of damages for land taken but for the assessment of benefits upon that part of the property or properties not taken. If benefits resulting from the whole street improvement may be proportionately assessed against an abutting owner, we can see no reason why the damages to a particular property may not be reduced or entirely overcome by the benefits which may have accrued to it. Clearly, the act of 1891 contemplates that in street improvement cases there should be taken into consideration not only the question of damages for land taken or injured but the benefits if any resulting to such abutting owner. In our opinion this view of the law did not prevail in the disposition of the present case by the learned referee,, and in this there was error.

The sixth, tenth and thirteenth assignments of error are sustained. It may be that some of the other assignments should also be sustained, but the principal error lies in not giving due consideration to the benefits accruing to that part of the tract not taken by reason of the improvements made or in course of construction.

Judgment reversed and record remitted with instructions to hear and determine the amount of damages to be awarded upon the basis hereinabove indicated.


author: Mr. Chief Justice Mitchell,

text:
    Swire’s Estate.

      Will — Signature—“At the end thereof.”

    1. The statute requires that a will shall be in writing, and signed by the testator “ at the end thereof.” The end meant by this provision is the logical end of the language used, which shows that the testamentary purpose has been fully expressed. The position oí the signature with regard to the bottom or end of the page is only evidence on the question whether the testator has completed the expression of his intention. Prima facie that is the natural place for the signature to be placed to show the full expression of the testator’s wishes and therefore is presumptively the right place for it, but it is only evidence and must give way to evidence of a different intent.
    2. Where the full substance of the testator’s intent is expressed, and his signature is at what he intends and regards as the end of his will, the continuity of the sense and not the mere position on the page must determine the statutory “end thereof,” as the place for the signature.
    3. Parol testimony as to marginal writing on a will is admissible, but it must be received with caution.
    Argued March 22, 1909.
    Appeal, No. 351, Jan. T., 1908, by Samuel T. McGinley, from decree of O. C. Phila. Co., Oct. T., 1906, No. 293, refusing an issue devisavit vel non in Estate of Hetty W. Swire, deceased.
    Before Mitchell, C. J., Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Appeal from register of wills. Before Dallett, J.
    The case turned upon whether the testatrix had signed the codicil to her will at the end thereof.

      The codicil was as follows:
    SECOND CODICIL TO WILL.
    “I, Hetty Wharton Swire, do hereby make and publish this Second Codicil to my last will and testament' as follows:
    “1. I give and bequeath unto Lily Mc-Ginley my seal skin coat.

      “2. I give and bequeath unto Edna Pennock my black and white check silk dress.
    “3. I give and bequeath unto Mrs. William McGinley (Fortieth Street) my cut glass ware.
    “4. I give and bequeath unto Lizzie Gibbs my cloth coat.
    “5. I give and bequeath unto James P. Cairns the large pictures of my husband, David Owen Swire, and myself.
    “6. I give and bequeath unto Lewis E. Herring the ornaments on the mantel in the parlor of my residence No. 5000 Walton Avenue, Philadelphia.
    “7. I give and bequeath unto the Misses Bradley and to Mrs. Clara Mitchell, my other dresses.
    “8. I give and bequeath unto my Cousin Benjamin Bradley my Knit Slumber Robe.
    .s +» 02 tí c3 tí tí © O ^ ^ a o j-t £ o O 05 73 o3 E-I P3 SuO •3 tí ft d H ® 73 § © > •bJO . G7> -

      S. 02 ° 53 P=H 1-3 S a 3 kt; ^ O +5 £ 2 & g ^05 3 3d M 2 'tí c3 1 © & © c3 . © .tí "Ti bjoPQ • — l O .tí t-H - O
    02 a S O Ph 02 © a ^ © 73 02 £ © rtí rtí H © tí cr © rQ 75 3 bJO l 3
    02 02 © ?H Id •a^ « p OCQ d d d 5 05 ■§° •e.'S 05 p >>£ a° »H 75 ° 3 -S'” *tí ^ ^75 © 02 ® ¡» a Sa «h ® o 03 -d © 02 h © M rtí 2 g* tí =5'75 o3 tí rtí H © tí a rQ © rtí 73 a "p c3 0 o3 , 02 bJD <M P< 3 T3 '
    “ In Witness Whereof I have hereunto set my hand and seal this,Twentieth day of April, A. D. One thousand nine hundred and six (1906).
    “ Hetty W. Swire. [Seal]
    “ Signed, sealed, published and declared by the above named Hetty W. Swire as and for a Second Codicil to her last will and testament in the presence of us who at her request in her presence and in the presence of each other have hereunto subscribed our names as witnesses.
    “Edna Pennock,
    “Alfred Moore.”

      Error assigned was the refusal of the court to award an issue devisavit vel non.

      Clinton A. Sowers and John B. Rutherford, for appellant.
    The codicil was not signed at the end thereof: Hayes v. Harden, 6 Pa. 409; Wikoff’s App., 15 Pa. 281; Baker’s App., 107 Pa. 381; Fosselman v. Elder, 98 Pa. 159; Irwin v. Jacques, 71 Ohio, 395; Glancy v. Glancy, 17 Ohio, 134; In re Walker, 110 California, 387 (42 Pac. Repr. 815); O’Neil’s Will, 91 N. Y. 516; Sisters of Charity v. Kelly, 67 N. Y. 409; Conway’s Will, 124 N. Y. 455 (26 N. E. Repr. 1028); Wineland’s App., 118 Pa. 37; Andrews’s Will, 162 N. Y. 1 (56 N. E. Repr. 529).

      Henry Spalding, with him David N. Fell, Jr., for appellees.
    In Pennsylvania a review of the authorities will show that a will has never been declared invalid as not in compliance with the act of 1833 except where a testamentary provision was physically beneath the signature at the time the will was executed and not referred to in the body of the will: Hays v. Harden, 6 Pa. 409; Wikoff’s App., 15 Pa. 281; Heise v. Heise, 31 Pa. 246; Fosselman v. Elder, 98 Pa. 159; Baker’s App., 107 Pa. 381; Morrow’s Estate, 204 Pa. 479; Saunders v. Samarreg Co., 205 Pa. 632.
    The purpose of the legislature in enacting the requirement of the act of 1833 that wills should be signed at the end, was not to prevent fraudulent alterations and additions, but to- require the authentication of wills as complete and finished instruments: Hays v. Harden, 6 Pa. 409; Heise v. Heise, 31 Pa. 246; Knox’s Est., 131 Pa. 220.
    The Ohio and New York cases relied upon by the appellant are based upon the erroneous assumption that acts requiring wills to be signed at the end were passed to prevent fraudulent-additions and alterations thereto. They have led to a narrow and technical view of the law at variance with our own and the English decisions.
    June 22, 1909:
    The English courts have adopted a liberal construction of the requirement that wills be signed at the end: Goods of Kempton, 3 Swabey & Tristam, 427; Goods of Woodley, 3 Swabey & Tristam, 429; Goods of Archer, L. R. 2 Pro. & Div. 252; Goods of Ainsworth, 23 L. T. Reps. 324.
   Opinion by

Mr. Chief Justice Mitchell,

The statute requires that a will shall be in writing, and signed by the testator “at the end thereof.” The end meant by this provision is the logical end of the language used, which shows that the testamentary purpose has been fully expressed. The position of the signature with regard to the bottom or end of the page is only evidence on the question whether the testator has completed the expression of his intention. Prima facie that is the natural place for the signature to be placed to show the full expression of the testator’s wishes and therefore is presumptively the right place for it, but it is only evidence and must give way to evidence of a different intent.

In Hays v. Harden, 6 Pa. 409, Chief Justice Gibson says: “Signing at the end of a will was required by the statute to prevent the evasion of its provisions that followed the English statute of frauds, which the judges held to be satisfied wherever the testator’s name, in his own handwriting, was found in the introductory or any other part of the instrument.” In Heise v. Heise, 31 Pa. 246, Strong, J., says: “Nor should we lose sight of the mischiefs which existed at the time when it (the statute) was enacted; mischiefs which it was designed to remedy. Among these, none was more serious than the facility with which unfinished papers, mere inchoate expressions of intention, were admitted to probate as valid wills of decedents. Letters, memoranda, mere notes unsigned, which were entirely consistent with a half formed purpose, and which may have been thrown aside, and never intended to be operative, were rescued from their abandonment, proven 'as wills, and allowed to prevail as dispositions of property which there was much reason to believe the decedent never intended. It was to remedy this mischief that the act of 1833 provided, that every will should be signed at the “end thereof,” that thus, by his signature in that place, the testator should show that his testamentary purpose was consummated, and that the instrument was complete.” And in Knox’s Estate, 131 Pa. 220, it was said: “The purposes of the act of 1833 were accuracy in the transmission of the testator’s wishes, the authentication of the instrument transmitting them, the identification of the testator, and certainty as to his completed testamentary purpose. The first was attained by requiring writing instead of mere memory of witnesses, the second and third by the signature of testator, and the last by placing the signature at the end of the instrument. The first two requirements were derived from the English statute; the third was new (since followed by the act of 1 Vict., c. 26), and was the result of experience of the dangers of having mere memoranda or incomplete directions taken for the expression of final intention: Baker’s App., 107 Pa. 381; Vernon v. Kirk, 30 Pa. 218.”

In the present case the connected sense of the text is entirely clear, though it does not follow the usual order of arrangement. But it does not deviate from it more than many letters written in the style of the present day where the writing jumps from the first to the third page and then back to the second. The "full substance of the testatrix’s intent and its expression are there, and the signature is at what she intended and regarded as the end of her will. Where that is manifest the continuity of sense and not the mere position on the page must determine the statutory “end thereof” as the place for the signature. The unusual, and as it might be called irregular arrangement of the several parts of the will is not so great as in Wikoff’s Appeal, 15 Pa. 281. There is' no Pennsylvania case which conflicts with this view, though care must be taken to distinguish cases like Hays v. Harden, 6 Pa. 409, where an addition after the signature was held to be testamentary and therefore to invalidate the will; Wikoff’s Appeal, 15 Pa. 281, where the converse was held, that a mere memorandum not testamentary in character did not have that effect; Heise v. Heise, 31 Pa. 246, where a testamentary clause after the signature but not signed, and shown not to have been on the will when the latter was executed, was held not to affect its validity. This was, however, a fully executed will and plainly within the protection of the clause of the statute that no will shall be repealed otherwise than by some other will or codicil duly executed and proved, or by burning, canceling, obliterating or destroying the same, by the testator or by someone in his presence and by his express directions.

We are not unmindful of possible danger in allowing marginal writing to be counted as part of the text of the will. Certainly parol testimony to that effect where there is no reference in the will, to identify and incorporate it, must be received' with caution. But to some extent parol testimony must always be admissible, as to prove signatures, show identity, etc. The exact point at which it must stop cannot be laid down in any hard and fast terms, but must depend on the necessity of the case. It will be observed that in Wikoff’s Appeal, 15 Pa. 281, and Heise v. Heise, 31 Pa. 246, the testimony was admitted apparently without objection. In the present case the question is purely theoretical as the good faith of the entire transaction is admitted.

Decree affirmed.


text:
    Hopkins, Appellant, v. West Jersey & Seashore Railroad Company.

      Negligence — Carriers — Ferryboat — Contributory negligence — Non-suit — Passengers.
    1. Where a passenger in going upon a ferryboat in the daytime enters immediately upon the gangway intended for wagons, and instead of then going into one of the apartments on either side intended for passengers, pursues his way over the gangway and in his hurry falls into an open coal hole, which he could have seen if he had looked, he is guilty of contributory negligence, and cannot recover damages from the ferry company.
    2. Unless a passenger shows some valid reason to excuse, he is bound to put himself in the appointed place for passengers, and if he does not he takes the risk of his location elsewhere.
    Argued March 26, 1909.
    Appeal, No. 35, Jan. T., 1909, by plaintiff, from order of C. P. No. 5, Phila. Co., Dec. T., 1906, No. 4,824, refusing to take off nonsuit in case of George S. Hopkins v. West Jersey & Seashore Railroad Company and Pennsylvania Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Ralston, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit.

      Francis M. McAdams, with him William H. Wilson and Joseph P. Rogers, for appellant.
    A ferry company is a common carrier and owes the same duties to its passengers as any other public service corporation: Bauer v. Ferry Company, 33 Pa. Superior Ct. 607; Howett v. R. R. Co., 166 Pa. 607; Girton v. R. R. Co., 17 Pa. Superior Ct. 143.
    Where the public is invited to use a passageway, it is the duty of those having control of such passageway to see that it is kept in a reasonably safe condition and the passenger so using has a right to assume that it is safe: Gilmore v. Railroad Co., 154 Pa. 375; Sutliff v. R. R. Co., 206 Pa. 267; Johnson v. Bruner, 61 Pa. 58; McHugh v. Kerr, 208 Pa. 225; White v. Navigation Co., 17 Amer. Neg. Rep. 724; Barker v. R. R. Co., 12 Amer. Neg. Rep. 580; Glase v. Philadelphia, 169 Pa. 488; Strader v. Monroe, 202 Pa. 626; Rathgebe v. R. R. Co., 179 Pa. 31; Miller v. Electric Light, etc., Co., 212 Pa. 593.

      John Hampton Barnes, for appellee.
    There was no evidence of negligence on the part of the defendant, but even if there were, the plaintiff’s contributory negligence is so clear that the court could not have submitted the case to the jury: Graham v. Penna. Co., 139 Pa. 149; Matthews v. R. R. Co., 148 Pa. 491; Seddon v. Bickley, 153 Pa. 271; Flanagan v. P., W. & B. R. R. Co., 181 Pa. 237; Plant Inv. Co. v. Cook, 85 Fed. Repr. 611; Hoboken Ferry Co. v. Feiszt, 58 N. J. L. 198 (35 Atl. Repr. 299).
    June 22, 1909:
   Opinion by

Me. Justice Stewaet,

The accident out of which this case arises occurred in that part of a ferryboat specially designed and appointed for the accommodation of horses and wagons in transport. It is located between the passenger apartments at either side of the boat, and is here called the horse or wagon gangway. The plaintiff entered the boat directly upon this gangway. Instead of going into one of the passenger apartments which were open to him as soon as he had boarded the boat, he attempted to reach the front of the boat by passing between the teams which were standing in the gangway. When he had reached about the middle of the boat he encountered a coal cart which had been discharging coal into a hole immediately in rear of the engine house. He passed to the right of the cart, and because of other obstructions in his way he concluded to return to the point where he boarded the boat and there enter the left-hand passenger apartment. He pursued his way to the rear of the cart with a view of passing across to the left side of the boat through the narrow place between the cart and the engine room. While attempting this the driver of the cart started toward the shore, leaving the coal hole exposed, and into this the plaintiff fell and was injured. The court below directed a nonsuit on the ground of plaintiff’s contributory negligence. In this we see no error. However the defendant company may have tolerated the use of this gangway by passengers impatient to reach the front of the boat, it is so manifest to ordinary observation that such gangway is intended for a use which makes it dangerous for passengers, that, except as safe and suitable accommodations for passengers are shown to have been lacking, the passenger who voluntarily takes his place in it must be held to have assumed the risk of injury. We have said with respect to street cars, that the proper and assigned place for passengers is inside the car; that unless he shows some valid reason .to excuse, a passenger is bound to put himself in the appointed place, and if he does not, he takes the risk of his location elsewhere: Thane v. Traction Company, 191 Pa. 249. There is no reason why this rule should be limited in its application to railroads or street railways; it applies generally. The plaintiff attempted no excuse for pushing his way between the teams occupying the gangway to reach the front part of the boat, except that others were doing the same thing. He admits that when he boarded the boat he could at once have entered either passenger way to the right or left. Through either he could have reached the front, not as soon perhaps as by adopting the gangway, but by a way which would have insured to him protection of the highest care possible. By adopting the other, under no necessity for so doing, he took the chances. The case has another aspect quite as unfavorable to plaintiff's claim. The evidence affords no explanation of how he fell into the hole consistent with ordinary care on his part. The occurrence was in daytime; the plaintiff says nothing obscured or concealed the hole from his view but the cart, and that but for the cart he would have seen it. He was passing directly, he says, across the boat at the tail end of the cart, and immediately upon the moving of the cart he fell into the hole. The cart at the time was not over the hole, but at the side, and if the plaintiff did not see it, it must have been because in his haste he did not look. The occurrence admits of no other explanation. The case calls for no inquiry as to defendant's negligence in leaving the hole unguarded. The court rested the nonsuit on plaintiff's contributory negligence, and for this there was sufficient warrant.

Judgment affirmed.