author: Mr. Justice Thompson, Mb. Chibe Justice Mitchell,

text:
    Duffy v. Sable Iron Works, Appellant.

      Negligence—Infants—Fall into hole on defendant’s lot—Case for jury.

    In an action to recover damages for the death of a boy between five and six years of age, caused by a fall into a vat of hot grease, constructed on defendant’s premises, the case is for the jury where the evidence shows that the vat was located about eleven feet distant from the line of a street, was eleven feet in length, nearly eight feet in width, twelve inches in depth, and with a top only a few inches above the surface of the ground.
    Hydraulic Works Co. v. Orr, 83 Pa. 332, discussed and explained in opinion of the court, and criticised in the dissenting opinion.

      Negligence—Infants—Contributory negligence of parents.

    In an action to recover damages for the death of an infant of tender years killed by a fall into a vat on defendant’s premises, the mother cannot be charged with negligence where it appears that she never allowed her children on the street, that at the time of the accident she permitted them to go into a yard around which was a fence, and that she cautioned them not to go through a gate in the fence, and that the child went through the gate without her knowledge.
    Mitchell, C. J., and Fell, J., dissent.
    Argued. Oct. 27, 1904.
    Appeal, No. 134, Oct. T., 1904, by defendant, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1902, No. 633, on verdict for plaintiff in case of James Duffy and Catherine Duffy his wife v. Sable Iron Works, Zug & Co., Limited.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Trespass for death of plaintiff’s son. Before Brown, J.
    The opinion of the Supreme Court states the facts.
    Verdict and judgment for plaintiff for $2,000. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      William A. Challener, with him Clarence Burleigh, and James C. Gray, for appellant.
    The law is well settled that a child of tender years may be a trespasser and subject to the rules of law relating to trespassers: Gillespie v. McGowan, 100 Pa. 144; Phila., etc., R. R. Co. v. Hummell, 44 Pa. 375; Hestonville Pass. Ry. Co. v. Connell, 88 Pa. 520; Balt. & O. R. R. Co. v. Schwindling, 101 Pa. 258; Oil City, etc., Bridge Co. v. Jackson, 114 Pa. 321; McMullen v. Penna. R. R. Co., 132 Pa. 107; Feehan v. Dobson, 10 Pa. Superior Ct. 6; Rodgers v. Lees, 140 Pa. 475.
    Where the owner of land, in the exercise of lawful dominion over it, makers an excavation thereon which is such a distance from the public highway that the person falling into it would be a trespasser upon the land before reaching it, the owner is not liable for an injury thus sustained: Gramlich v. Wurst, 86 Pa. 74.
    That waá the case of injury to an adult. The rule is the same as regards children: B. & O. R. R. Co. v. Schwindling, 101 Pa. 258; Hargreaves v. Deacon, 25 Mich. 1; Rodgers v. Lees, 140 Pa. 475.

      Joseph Howley, with him W. A. Hudson, for appellee.
    There was no evidence of contributory negligence or want of care on the part of the parents which justified the taking of the case from the jury. It is apparent from the testimony that they exercised more care than the ordinary parents in their condition in life bestow upon their children: Del Rossi v. Cooney, 208 Pa. 233.
    The vat constituted a dangerous trap for the maintenance of which the defendants would have been liable even if it had been entirely on their own premises, though the child had therefore been technically a trespasser: Schilling v. Abernethy, 112 Pa. 437.
    Whether the owner of these premises, under the circumstances made apparent by the evidence, was or was not justified in maintaining such a construction so near the streets, was a question, for the jury, and one that could not lawfully have been withdrawn from the consideration of that body: Rachmel v. Clark, 205 Pa. 314; Tomle v. Hampton, 129 Ill. 379 (21 N. E. Repr. 800); Crogan v. Schiele, 53 Conn. 186 (1 Atl. Repr. 899); Holmes v. Drew, 151 Mass. 578 (25 N. E. Repr. 22); Beck v. Carter, 68 N. Y. 283; Hydraulic Works Co. v. Orr, 83 Pa. 332; Corbin v. Philadelphia, 195 Pa. 461; Enright V. Pittsburg Junction R. R. Co., 198 Pa. 166 ; Gramlich v. Wurst, 86 Pa. 74; Schmidt v. Cook, 12 Misc. Rep. 449 (33 N. Y. Supp, 624) ; Dunn v. Ballantyne, 5 App. Div. 483 (38 N. Y. Supp. 1102); Kopplekon v. Colo. Cement-Pipe Co., 64 Pac. Repr. 1047; Birge v. Gardner, 19 Conn. 507; Bransom v. Labrot, 81 Ky. 638; Harrold v. Watney L. R. (1898), 2 Q. B. 320.
    The infant plaintiff cannot be charged with contributory negligence: Schilling v. Abernethy, 112 Pa. 437; Crissey v. H. M. & F. Pass. Ry. Co., 75 Pa. 83; Phila. City Pass. Ry. Co. v. Hassard, 75 Pa. 367; Nagle v. Allegheny Valley R. R. Co., 88 Pa. 35; West Phila. Pass. Ry. Co. v. Gallagher, 108 Pa. 524; Strawbridge v. Bradford, 128 Pa. 200; Sandford v. H. M. & F. Pass. Ry. Co., 136 Pa. 84; Kehler v. Schwenk, 144 Pa. 348; Greenway v. Conroy, 160 Pa. 185; Nelson v. Hillside Coal & Iron Co., 168 Pa. 256 ; Holtzinger v. Penna. R. R. Co., 6 Pa. Dist. Rep. 430.
    December 31, 1904 :
   Opinion by

Mr. Justice Thompson,

The accident which occasioned the present action for damages for the death of appellees’ son, some five or six years of age, was caused by the' child falling into a vat constructed by the appellant in proximity to Thirteenth street in the city of Pittsburg and used by it in connection with its iron mill. It was located about eleven feet distant from the line of the street in question and was eleven feet in length and nearly eight feet in width and was sunk into the ground about twelve inches. The kettle annexed to it was used to melt tar and grease which ran into it and when cold this material was cut into pieces and used in the mill of appellant. Its top was a few inches above the surface of the ground surrounding it and was not protected. The kettle was near the line of the street and the vat beyond it making its distance from the street as above stated.

Appellant’s negligence it was contended by appellees arose from placing a dangerous and unprotected vat in such close proximity to the street, that their son fell into it and met with the accident which resulted in his death. The determination of such negligence depends upon the resolution of the questions whether the vat as constructed, filled with boiling materials and unprotected, with but three or four inches above the level of the surface of the ground surrounding it and located in close proximity to the street made it dangerous, and whether the space between it and the street was such that a child would be likely to stroll there and become exposed to peril. These questions were for the jury and were properly left to it by the learned trial judge, and the jury by its verdict resolved them against the appellant.

The measure of duty under such circumstances is clearly defined in Rachmel v. Clark, 205 Pa. 314, by Mr. Justice IMestrezat:

“ If it be conceded, however, that the ground between the factory and the building line was not paved yet it was open and practically a part of the foot walk of the street. The defendants, therefore, having regard to these circumstances, owed a duty to the public to exercise reasonable care to keep it safe so that those using the adjacent highway would not be exposed to danger. As said by Chief Justice Agnew in Hydraulic Works Company v. Orr, 83 Pa. 332: ‘Duties arise out of circumstances. Hence, where the owner has reason to apprehend danger, owing to the peculiar situation of his property and its openness to accident, the rule will vary. The question then becomes one for a jury, to be determined upon all its facts of the probability of danger and the grossness of the act of imputed negligence.’ The owners of the premises are required in such cases to anticipate that children as well as adults may use the highway and thereby be exposed to any unsafe objects placed upon the premises.”

The appellant’s principal contention was that the child was a trespasser and that appellees therefore were not entitled to recover. • A similar question was involved in Hydraulic Works Company v. Orr, 83 Pa. 332, and in the opinion there, Mr. Chief Justice Agnew, said : “ The gate and passage way opened out upon a public and much frequented street, where persons were passing and children playing. Unlike an ordinary private alley, this passage was often open, and therefore liable to the incursions of children and even grown persons, from thoughtlessness, accident or curiosity. Now the inclined way which did the injury was a dangerous trap. It was a heavy platform weighing ' 800 or 900 pounds, attached by hinges within eighteen or twenty inches of the wall, and when lowered it fell across the cartway. When not lowered it stood upright against the wall, leaning so little beyond the center of gravity that a jar or a slight pull would cause it to fall forward. It fell in this instance, caught four children beneath it, one had his neck broken, another his hands mashed and two escaped under the cavity. It was held up by no hook or other fastening, but merely rested by its own slight weight beyond the equipoise, ready therefore to catch children, like mice, beneath a dead fall. When wagons passed it was often held up by hand, and a witness saw it fall against the wheels. Now can it be righteously said that the owner of such a dangerous trap, held by no fastening, so liable to drop, so near a public thoroughfare, so often open and exposed to the entries of persons on business, by accident or from curiosity, owes no duty to those who will be probably there ? ”

It is difficult to understand why this case has become like a shuttlecock in battledore to be pitched up and down. The boy in that case was six years old and while playing in the street strolled into the alley, when the gates were open, and while there the platform fell upon him. The facts were submitted to the jury and the verdict was in favor of the plaintiff below.

Mr. Justice Gordon, in discussing that case in Schilling v. Abernethy, 112 Pa. 437, said :

“We there held, that circumstances may beget duties which under ordinary circumstances cannot be implied, and that when such circumstances are shown to exist, the questions arising there are not for the court but for the jury. In that case the child entered the defendant’s premises without even an implied permission, and through a gate which had been but casually left open, nevertheless we said that, as tho company maintained so dangerous a trap in a place near to a highway where children were wont to congregate for their own amusement the jury must determine, in view of all the circumstances, whether it was bound to provide against a contingency such as that which happened.”

A dictum occurs in Gillespie v. McGowan, 100 Pa. 144, that Hydraulic Works Company v. Orr, 83 Pa. 332, was in direct conflict with Gramlich v. Wurst, 86 Pa. 74, but an examination of that case will show that the deductions leading to such dictum are not warranted and that the case rested upon well-defined and settled principles, for Mr. Justice Woodward there says:

“Reliance has been placed upon tbe case of Hydraulic Works Co. v. Orr, 83 Pa. 332, to support this judgment. The distinction between that case and this is marked and obvious. There the accident happened in a private passage or cartway adjoining a factory, where several kinds of business were carried on in different stories, and was caused by a heavy platform employed as an inclined plane to move heavy articles into and out of the building. When used it was lowered so as to cover jbhe pavement of the cartway. When not in use it was raised on hinges that connected one side of it within eighteen inches 'of the wall, was not fastened at the upper side and was so nearly at equipoise that slight force was required to draw it down. The cartway opened from a public street, where people were constantly passing and children were often at play. There was a gate at the street end, and this was frequently left open. It was so left at the time of the accident, when four children intruded into the cartway, and their thoughtless tampering with the platform resulted in drawing it down upon themselves, and in producing injury to the child of the plaintiff’s from which he died. This court affirmed a verdict and judgment for damages in common pleas. No cause was ever more justly decided.” Again it is said : “ The children were trespassers; certainly, but they were children and the defendants were bound to have regard to the reckless and thoughtless tastes and traits of childhood.”

In view of the facts in this case, under the authorities, the learned trial judge was not guilty of error in refusing to give binding instructions for the defendant below, the appellant, upon the ground that appellee’s son was a trespasser.

Appellant’s subordinate contention was that appellees were guilty of negligence in allowing the child to be on the street unprotected. The mother of the child testified that she never allowed her children upon the street, but that upon the day of the accident she told them to go into the yard' around which was a fence. That there was a gate in it through which people came to get water and she cautioned the children not to go into the street. The test of negligence under such circumstances is stated in the opinion of Mr. Justice Mestrezat in Del Rossi v. Cooney, 208 Pa. 233:

“ Parents! owe the duty of protection to their child of tender years, and : they must exercise care to prevent it being exposed to danger in order to relieve themselves from the charge of contributory negligence if the child is injured through the fault of another. When, therefore, the parent seeks to charge a negligent defendant with the injury to his child, it must appear that he has used the care toward it demanded of him by the circumstances. The care thus required, however, is only such as persons of reasonable prudence of the same class and with the same means, ordinarily exercise and deem adequate to protect their children from danger. ”

The learned trial judge in his instructions submitted the question of appellees’ negligence to the jury for its determination, and there was no error in his instructions in this regard.

The judgment is affirmed.

Mb. Chibe Justice Mitchell,

dissenting.

On the facts of this case I would reach a different conclusion from that of the court below and the majority here. But the dangerous construction here was not far from the public street and appears to have been easily accessible from it. The case is therefore a close one and the submission of it to the jury might be sustained on its facts without great stretch of principle. But I most earnestly dissent from the effort to recognize the case of Hydraulic Works Co. v. Orr, 83 Pa. 332. The opinion of the majority refers to it as having “ become like a shuttlecock in battledore to be pitched up and down.” The reason is not far to seek. The case was a departure from settled principles, was wrongly decided, and has never commanded the general approval of professional opinion either at the bar or on the bench. In the very next subsequent case that arose in this court, Gramlich v. Wurst, 86 Pa. 74, it was practically overruled, for though Justice Woodward makes an effort to distinguish the cases, yet the distinction is merely in the details of fact and not in principle, and when he says that “ no cause was ever more justly decided ” he does not say more correctly or more legally decided, and his dictum is manifestly based on humane sentiment rather than on settled law. The two cases are absolutely irreconcilable in principle, and Gramlich v. Wurst, restored the ancient and established law. What little -was left of authority in Hydraulic Works Co. v. Orr, was practically ended by Gillespie v. McGowan, 100 Pa. 144, though there again the mistake was made of setting up an unsubstantial distinction, instead of overruling the case absolutely. The same view was again taken in Horstick v. Dunkle, 145 Pa. 220.

A disposition to waver on the subject, however, cropped up in Schilling v. Abernethy, 112 Pa. 437, and since then the case has, as the majority say, been pitched up and down like a shuttlecock. And it will so continue, for the decision is wrong and the ghost of error will not be laid. The settled-common-law rule, followed in Gramlich v. Wurst, that a landowner is not liable for injury to a trespasser from a ditch or an open quarry or other obstruction on his own land unless it is so near the public highway that a traveler lawfully using the highway may accidentally or without intended trespass fall into it, is the only safe and permanent guide. The fact that the person injured is a child is immaterial because under the circumstances there was no negligence of the defendant.

I would reverse this judgment on the ground that on the admitted facts the court should have given binding directions for the defendant.

Fell, J., joins in the dissent.


source: Caselaw Access Project

author: Mb. Justice Dean,

license: Public Domain

text:
    Crescent Township v. Pittsburg and Lake Erie Railroad Company.

      Railroads—Eminent domain—Abandonment of roadbed—Road law—Res adjudicata.

    While the courts have no jurisdiction to lay out longitudinally a public road on the occupied right of way of a railroad company, nevertheless they have such jurisdiction to lay out such road on an abandoned right of way or roadbed. It cannot be said, that if a railroad has once made an appropriation of a strip of land for railroad purposes and afterwards abandoned it for such purposes, nevertheless, the land shall thereafter remain sacred and forever exempt from other public uses. After such abandonment it is open to appropriation to other public uses.
    In a mandamus proceeding in the court of common pleas by a township against a railroad company to compel the defendant to reconstruct a highway which it had obstructed, it appeared that the bed of the highway in question had once been condemned by the defendant and used for a time as its roadway, but that after the construction of a double-track railroad the rails and ties had been taken away from the old roadbed. Subsequently by road proceedings in the quarter sessions the public road in question was laid out over the old bed. Some years afterwards the railroad obstructed the public road thus laid out, and refused to reconstruct the highway. Mandamus proceedings were then brought. It appeared from the record of the road proceedings in the quarter sessions that the petition for viewers prayed the court to appoint viewers to lay out a road in great part on the old abandoned1 road of the railroad company. The viewers reported that they had laid out the road following "the old abandoned roadbed” of the railroad company. The viewers also reported that legal notice of the view had been given. Held, (1) that the record of the quarter sessions showed conclusively an adjudication of an abandonment of the old roadbed; (2) that as legal notice was given and no objection made by the railroad company at the time it could not attack the adjudication of the quarter sessions in a collateral proceeding; (3) that a judgment in favor of the township in the mandamus proceedings should be sustained.
    Thompson, J., dissents.
    Argued Oct. 27, 1904.
    Appeal, No. 146, Oct. T., 1904, by-defendant, from judgmentof C. P. No. 1, Allegheny Co., .Dec. T., 1908, No. 296, on verdict for plaintiff in ease of Crescent Township v. Pittsburg and Lake Erie Railroad Company and James M. Schoonmaker.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Petition for mandamus. Before Brown, J.
    The facts appear by the opinion of the Supreme Court.
    The court gave binding instructions for plaintiff.
    Verdict and judgment for plaintiff. Defendant appealed.

      Error assigned was in giving binding instructions for plaintiff.

      George E. Shaw, of Reed, Smith, Shaw Beal, for appellant.
    The decree of the court of quarter sessions laying out a public road upon the right of way of the defendants’ railroad was absolutely void and did not divest the title of the railroad company to its property; and the company lias not lost any of its rights by estoppel: Liberty Alley, 8 Pa. 381.
    The general rule is that a sentence, judgment or decree by a court acting within its jurisdiction is res judicata, preventing the cause or action, fact or matter adjudicated from being re-litigated in any other court between the parties or privies. It is, however, equally well settled that if the court acted without authority in the premises, its decision is not merely voidable but void, and affords no protection to those claiming to act under it, and it cannot be set up as res judicata either in the same or in a different cause or action: Morgan’s Appeal, 110 Pa. 271; Devlin v. Commonwealth, 101 Pa. 273; Fisher v. Longnecker, 8 Pa. 410; Black on Judgments, sec. 513.

      The land of the defendant company appropriated for a highway by these proceedings was already devoted to a public use and could hot be condemned for another public use: Pittsburg Junction R. R. Co.’s App., 122 Pa. 511; Scranton Gas & Water Co. v. Coal & Iron Co., 192 Pa. 80; Great Bend Road, 2 Pa. C. C. Rep. 335; Upper Darby Road, 2 Pa. C. C. Rep. 366.
    The title of a railroad company to its right of way acquired by condemnation proceedings is a base fee, and cannot be divested either by nonuser or by adverse possession short of the time necessary to acquire title by prescription: Pittsburg, etc., Ry. Co. v. Peet, 152 Pa. 488; Railroad Co. v. Paper Mills, 149 Pa. 18.

      Henry A. Jones, with him James T. Buchanan, for appellee.
    The question of abandonment is res adjudicata: Road in Palmer Twp., 109 Pa. 274; Rauwolf v. Glass, 184 Pa. 237; Raisig v. Graf, 17 Pa. Superior Ct. 509; Herrick Twp. Road, 16 Pa. Superior Ct. 579; Sterrett Twp. Road, 114 Pa. 627; South Abington Twp. Road, 109 Pa. 118; Kreiter v. Harrisburg City, 2 Pear. 326; Millcreek Twp. v. Reed, 29 Pa. 195; Hamner v. Griffith, 1 Grant, 193; Leet Twp. Road, 159 Pa. 72; Vacation of Deny Twp. Road, 11 Pa. Superior Ct. 232; Bellevernon Road, 15 W. N. C. 232; Kingston Twp. Road, 134 Pa. 409; Fretz’s App., 15 Pa. 397; Bachman’s Road, 1 Watts, 400; Wagner v. Salzburg Twp., 132 Pa. 636 ; Fowler v. Jenkins, 28 Pa. 176; Smith v. Lebanon, 8 Pa. Superior Ct. 481; Road in North Franklin Township, 8 Pa. Superior Ct. 358; Mathewson v. Clinton Twp. Supervisors, 8 Pa. C. C. Rep. 204; Adle v. Sherwood, 3 Whart. 481.
    Likewise a public road may be laid out partly over the bed of another public road: West Chester Road, 2 Rawle, 421.
    December 31, 1904 :
   Opinion by

Mb. Justice Dean,

In 1878 the defendant company located and constructed its railroad through Crescent township Allegheny county as part of its line between Pittsburg, Pennsylvania and Youngstown, Ohio. It was a single-track road and entered the village of Shousetown in that township over a bridge crossing Flaherty’s Run and passed on over a fifty-foot street in the village called High street, then on to the western line of the village where it entered upon the property of Virginia Graham, thence through the Graham land to and over a bridge constructed by the company over Strabane run to the Beaver county line. The company, by condemnation for railroad purposes, acquired through the Graham property a strip of land 600 feet long and sixty feet wide on which it constructed, and afterwards operated up to 1891, its single-track railroad and also a passing siding which extended beyond the Graham land but in width not beyond the sixty feet. A gully which crossed the Graham land diagonally, before the construction of the railroad, carried the surface water into the Ohio river. A small culvert, about ten feet below the railroad, to take care of this water, was constructed by the railroad company. To straighten track and reduce grade the railroad company bought from Virginia Graham in 1889 an additional strip alongside its original location, seventy-five feet wide at one end and 110 feet at the other. On this strip the company made a cut twenty feet deep sufficiently wide at the bottom for the construction of a double-track railroad. The upper slope of this cut extended slightly into the right of way, but not so far as to interfere with the operation of the old track if the company had desired to operate that track. In 1891 the company commenced to operate its new double-track line; it took up its rails on the old track and ties, took away the bridge over Strabane run and ceased to use the roadbed for railroad purposes. Travelers and vehicles used it thereafter as a road; at the Graham laud a fence was erected across it with turnstiles, so that those on foot alone could pass over that part. In 1896, at December quarter sessions, citizens of the township petitioned the court to appoint viewers to view and lay out a public road on the old abandoned roadbed of the railroad. The viewers were appointed, and after having viewed the route of the proposed road reported to the court, that they had laid out a public road as prayed for by the petitioners on the old abandoned roadbed of the Pittsburg and Lake Erie Railroad Company at a width of forty feet, that the road was necessary for public use; that they endeavored to procure releases for damages from all owners of land through which the road passed but had failed to procure such releases; that they had assessed damages to one Anderson at #100 and to Virginia Graham at fifty; that no other property owners sustained damages. The court confirmed absolutely the report of the viewers and ordered the township supervisors to open the road. They did open it in 1897, and from that time to 1903 the township maintained and kept it in repair and the public used it. In that year, however, the railroad company attempted to resume possession of a part of it by building a signal bridge over and upon it and by making a new slope for its cut across the traveled portion so obstructing it as to make it impassible. The township authorities, while nQt denying the power of the railroad company to repossess itself of the land appropriated for the highway under the act of 1849 which provides that: “if any .... railroad company shall find it necessary to change the site of any portion of any turnpike or public road they shall cause the same to be reconstructed forthwith, at their own proper expense, on the most favorable location, and in as perfect a manner as the original road,” nevertheless contended that the railroad company must under this statute restore the highway outside the old roadbed. The railroad company refused, denying the jurisdiction of the quarter sessions to appropriate for a highway the land which by right of eminent domain in 1878 it had appropriated for railroad purposes. The township authorities then petitioned the court for a writ of mandamus to compel the railroad company to reconstruct the highway; mandamus was granted, to which the railroad company made return, that the land claimed as a highway had been lawfully acquired by the railroad company for railroad purposes and had never been abandoned; and further, it denied the jurisdiction of the court of quarter sessions to appropriate for a public highway any portion of its roadbed even if not occupied at the time by rails and trains. As this return raised an issue of fact as well ;as of law, the court directed the issue of fact for trial before a jury.

The evidence on the question of abandonment was heard, and while the court was of opinion there was not sufficient evidence to show abandonment, yet on the law it was of opinion, that the decree of confirmation absolute in the court of quarter sessions on the report of the road viewers, was conclusive on all parties and res adjudicata, .therefore could not be disturbed in a collateral proceeding to test the respective rights of the parties. Therefore, the only question at issue before us on this appeal, for the plaintiff has not appealed from the decision on the question of fact, is the conclusiveness of the decree in the quarter sessions. It certainly is conclusive on all parties as to the subject of adjudication. How far could that court go under the act of 1836 in laying out public roads on land already appropriated by a railroad under the right of eminent domain for its roadbed ? We speak not now of its right for other purposes not included in its right of way for its trains, for this last is not involved in this issue ; but under the act of 1836 it was always held that the court of quarter sessions had authority to lay out a public road which crossed at grade a railroad diagonally. It never was held under that act, that a public road could occupy a railroad bed or any part of it longitudinally. Under the act of 1901, which as concerns railroad crossings is a substitute for the act of 1836, and under it all crossings at grade are forbidden, except in certain exceptional instances, and jurisdiction over such crossings is conferred on the courts of common pleas.

Taking the record before us as it stands, the highway was laid out longitudinally on the roadbed already appropriated by the railroad company, for by the judgment in the mandamus proceeding unappealed from, that fact is decided in favor of the railroad company; but does that judgment show that another court had no jurisdiction over the same subject? The court of common pleas is not a court of appeals from decrees of the quarter sessions. The decrees and judgments in the one court are final and as binding as those of the other, in subjects over which it has jurisdiction. The quarter sessions had no jurisdiction to lay out a public road longitudinally on the occupied roadbed of a railroad company and its decree to that effect would have been coram non judice, a nullity, because of want of jurisdiction in the court to make it. But how shall that lack of jurisdiction appear? Not by the judgment of another court of no higher jurisdiction, in a collateral matter, but from the proceedings which are the foundation of the decree. While that court had no jurisdiction to lay out longitudinally a public road on the occupied right of way of a railroad company, nevertheless, it had jurisdiction to lay out such road on an abandoned right of ‘way or roadbed. It cannot be said, that if a railroad has once made an appropriation of a strip of land for railroad purposes and has afterwards abandoned it for such purposes, nevertheless, the land shall thereafter remain sacred and forever exempt from other public uses. Clearly, after such abandonment it is open to appropriation to other public uses.

What does the record show in the proceedings in the quarter sessions necessary to give jurisdiction ? The petition for viewers prays the court to appoint viewers to lay out a road in great part on the qld abandoned road of the railroad company; then the viewers report that they have laid out the road prayed for by the petitioners and they recommend that “ the width for that portion of the road which follows the old abandoned roadbed of the Pittsburg and Lake Erie Railroad Company be fixed at forty feet.” There was no concealment of their purpose to occupy longitudinally the old abandoned bed of the railroad company; viewers spread upon the records in their report that they had so laid out the road forty feet wide. The court of quarter sessions was bound to assume, from the sworn uncontroverted facts upon its own records, that the old railroad bed had been abandoned. It could determine the fact in no other way. It was not bound to send to the railroad company’s officers and inquire of them whether the sworn petitioners and viewers were truthful. When the report was filed, under the rules of the court everyone interested had opportunity to appear and except to it; no one objected and the report was confirmed absolutely. This made it res adjudicata, a matter judicially decided, unless there was some irregularity in the proceedings which was fatal to jurisdiction over the person of one interested.

The railroad company, an artificial person, claims that it had no notice of the proceedings, therefore the court had no jurisdiction to appropriate its land, for it had no opportunity to be heard. It affirmatively appears from the report of the viewers that legal notice was given. The second section of the Act of February 24, 1845, P. L. 52, applicable to Allegheny county, makes it the duty of the viewers to give five days’ public notice before their meeting. This “ legal ” notice which the viewers gave was doubtless the notice enjoined by the act; there is no other presumption; it is ruled this is sufficient notice. See Road in Sterrett Township, 114 Pa. 627 and Millcreek Township v. Reed, 29 Pa. 195. In some states they have gone farther and held that the laying out of a public road is a proceeding in rem and binds all the world; we have not gone farther than to hold that it must affirmatively appear from the report of viewers that legal notice was given, which does appear in this report. In fact, it goes further, and states that the viewers tried to obtain releases of damages from all owners of property over which the road passed.

What we have said passes on all of appellants’ assignments of error, they are all overruled and the judgment is affirmed.

Thompson, J., dissents.


author: Mr. Justice Potter,

text:
    O’Hara, Appellant, v. Corr.

      Evidence—Payment—Presumption—Rebuttal of presumption—Mortgage.

    The presumption which the law raises after the lapse of twenty years that a bond or specialty has been paid is in its nature essentially different from the bar interposed by the statute of limitations to the recovery of a simple contract debt. The latter is a prohibition of the action, the former prima facie obliterates the debt. The bar is removed by nothing less than a new promise to pay or an acknowledgment consistent with such promise. The presumption is rebutted, or to speak more accurately, docs not arise where there is affirmative proof, beyond that furnished by the specialty itself that the debt has not been paid, or whore there are circumstances that sufficiently account for the delay of the creditor.
    On a scire facias sur mortgage where the defendant sets up a presumption of payment after a lapse of twenty years, the case is for the jury where several witnesses for the plaintiff testify clearly and positively that the deceased mortgagor had declared that he had purchased the mortgaged premises, that he had never paid the mortgage, that he could not pay it and that he would have to let the property go.
    Argued Oct. 28, 1904.
    Appeal, No. 182, Oct. T., 1904, by plaintiff, from order of G. P. No. 1, Allegheny Co., June T., 1902, No. 793, refusing to take off nonsuit in case of Frances A. O’Hara to use of Rebecca R. Phillips now for use of Anna L. Caldwell v. John Corr, Deceased, now in the hands of Mary Corr, or Carr, Administratrix, with notice to Harry E. Holman, terre-tenant.
    Before Mitchell, C. J., Dean, Fell, Brown, Potter and Thompson, JJ.
    Reversed.

      Scire facias sur mortgage. Before Collier, J.
    The factsl are stated in the opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit.

      Howard Zacharias, with him Harry Diamond, for appellant,
    cited : Reed v. Reed, 46 Pa. 239; Gregory v. Com., 121 Pa. 611; Porter v. Nelson, 121 Pa. 628; Devereux’s App., 184 Pa. 429.

      Edward B. Scull, with him Ralph Longenecker, for appellee,
    cited: Hayes’ App., 113 Pa. 380 ; Kline v. Kline, 20 Pa. 503; Porter v. Nelson, 121 Pa. 628; Peters’ Appeal, 106 Pa. 340 ; Eby v. Eby, 5 Pa. 435 ; Sellers v. Holman, 20 Pa. 321.
    December 31, 1904:
   Opinion by

Mr. Justice Potter,

This was a scire facias sur mortgage, dated January 11, 1873, for the sum of $2,460 payable in five equal annual installments with interest. The first three installments were assigned by the mortgagee, Frances A. O’Hara, to Rebecca R. Phillips, and the executor of the latter subsequently assigned the same to Anna L. Caldwell, the principal beneficiary under her will and the use plaintiff in this case. The mortgagor, John Corr, is also dead and the writ issued against his administratrix, with notice to Harry E. Holman, terre-tenant, who had purchased the mortgaged premises at a sale under a municipal lien. The plaintiff claimed to recover the first three installments due respectively January 11, 1874, 1875 and 1876, with interest. The preecipe was filed and a sci. fa. issued in June, 1902, more than twenty-six years after the last of the three installments fell due. Upon the trial, the plaintiff, after showing that the unsatisfied mortgage was found among Mrs. Phillips’ papers after her death, endeavored to rebut the presumption of payment by calling four witnesses to testify to admissions and declarations made by the mortgagor during his lifetime, and within twenty years, before suit was begun on the mortgage.

The trial judge held that this testimony was insufficient to be submitted to the jury in rebuttal of the presumption of payment and granted a compulsory nonsuit, which the court in banc refused to take off. This refusal is assigned as error. The only question presented by this appeal is as to the sufficiency of the testimony produced by the appellant to repel the legal presumption arising from lapse of time that this mortgage was paid. This court said in Reed v. Reed, 46 Pa. 239 : “ The presumption which the law raises after the lapse of twenty years that a bond or specialty has been paid is in its nature essentially different from the bar interposed by the statute of limitations to the recovery of a simple contract debt. The latter is a prohibition of the action, the former prima facie obliterates the debt. The bar is removed by nothing less than a new promise to pay or an acknowledgment consistent with such a promise. The presumption is rebutted, or, to speak more accurately, does not arise when there is affirmative proof, beyond that furnished by the specialty itself, that the debt has not been paid, or where there are circumstances that sufficiently account for the delay of the creditor.”

In Morrison v. Funk, 23 Pa. 421, the testimony of two witnesses who were strangers to the controversy, of admissions made to them by the debtor, that the debt had not been paid, was held sufficient to be submitted to the jury for the purpose of rebutting the presumption of payment. Runner’s Appeal, 121 Pa. 649, also presents a case where proof of the statements of the debtor to his sister, in the presence of a third person, that he would pay over to her one half the money, being her share on two notes, the notes not being produced, and no amount being mentioned, and that he had come to fix up the notes according to a previously expressed intention, was held to constitute clear, distinct and unequivocal recognition of the debt evidenced by the notes, sufficient to rebut the presumption of payment.

In Smith v. Shoenberger, 176 Pa. 95, it was held that where the plaintiff’s judgment was more than twenty-one years old and the defendant relied on the presumption of payment growing out of the lapse of time, evidence of declarations by the defendant tending to show that it was not paid were pertinent and their persuasive value was for the jury to determine. The admissions here were made to one of the plaintiffs, who testified that twice within the preceding five years the defendant had approached him and endeavored to make an arrangement for the settlement of the claim.

And in White v. White, 200 Pa. 565, where suit was brought by a daughter against her father’s executors upon a bond more than twenty years overdue, the testimony of a brother that on two occasions within twenty years he had heard the father say that he had “ no money to pay the interest to Lizzie on the $2,700 bond I owe her,” or something of like import, was held to be sufficient to overcome the presumption of payment.

Bearing in mind the principles thus illustrated, let us consider the evidence presented by the plaintiff in the court below. H. J. Creighton testified that he had known John Corr, the mortgagor, and that about 1893 or 1894 Corr had told him that he had purchased some lots on Dearborn street (where the mortgaged premises were located), that he had not paid anything for several years on them and that he had never been notified of the foreclosure of any mortgage on them. He also said that he had paid between $450 and $500 on the property. Subsequently he repeated the conversation and said that he was still being assessed for taxes on the property.

Sophia Corr, a daughter of mortgagor, testified that about twelve years before the trial her father had pointed out the mortgaged premises to her and told her “ that he had bought it, but that he could not claim it, that there was a big mortgage against it, and he lost his position and could not pay for it.” He afterwards frequently spoke to her about the property and in 1900, the day before the sheriff’s sale, he went to the courthouse to look it up and in the evening told a Mr. Scott, who called to see him about it, that he was not going to buy it, “ that the mortgage was then over $2,000 and that he could not think of taking a hand in it.” He spoke to her at one time (about 1899) of going to the Phillips residence and talking to Mr. and Mrs. Phillips, both, “that he could not pay for the property. That was just at the time that he lost his position and that he would like them to take two of the lots off his hands, and let him pay the balance on the one. . . . He hadn’t paid anything on the mortgage.”

Annie Corr, another daughter of mortgagor, testified that before 1880 her father showed her the deed for the property and told her it was of no benefit to him because he could never redeem the mortgage, it was too heavy and great. That after 1882 he frequently spoke of the property and said the same thing, that he could never redeem the mortgage and that they could sell his furniture for it, if they knew he owned it. In 1900 witness heard her father, about the time of the sheriff’s sale, tell Mr. Scott that there was over $2,000 in the mortgage, against the property and that he never could redeem it.

Mary Creighton testified that, eight or nine years before the trial, the mortgagor told her, referring to the Dearborn street lots, that “ he had bought that property but the mortgage was too great and he could never redeem it. He thought it would have to go. He could not keep the property up, that the mortgage was too great.”

We think this testimony was so clear and positive that, if believed by the jury, it was ample to overcome the presumption of payment arising from the lapse of time. The assignment of error is sustained.

The judgment is reversed, and a procedendo is awarded.


author: Mb. Justice Fell,

text:
    Smith v. Pittsburg, Cincinnati, Chicago & St. Louis Railway Company, Appellant
    (No. 1).

      Negligence—Railroads—Contributory negligence—Explosion of naphtha— Case for jury.

    In an action against a railroad company to recover damages for personal injuries it appeared that through an accident in defendant’s yard a number of tank cars containing a large quantity of naphtha wore set on fire. This fire was communicated to other cars and there was an extensive and disastrous conflagration which lasted several hours. Three hours after the fire started there was an explosion which threw burning naphtha beyond the limits of the yard and on to the street where the plaintiff was walking. The plaintiff testified that he had come from his home on the opposite side of a river because of his apprehension that the fire might spread and extend to the house of his sister. Having assured himself of her safety he started at once to return to his home by the way he came. Not finding a car he walked on until one should overtake him. When he was opposite the place where the cars were burning and forty feet above and 260 feet from them, the explosion occurred. At this time the ordinary travel on the avenue had not stopped and the electric cars were running as usual. The employees of the railroad company and of the fire department were working in the yard within twenty or thirty feet of the cars. Held, that the ease was for the jury and that a verdict and judgment for plaintiff should be sustained.

      Argued Oct. 28, 1904.
    Appeal, No. 139, Oct. T., 1904, by defendant, ¡from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1902, No. 608, on verdict for plaintiff in case of Charles F. Smith v. Pittsburg, Cincinnati, Chicago & St. Louis Railway Company.
    Before Mitchell, C. J., Dean, Fell, Brown, Potter and Thompson, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before McClung-, J.
    The facts are stated in the opinion of the Supreme Court.
    Defendant presented these points :
    1. Under the pleadings and evidence in this case the verdict should be for the defendant. Answer: Refused. [1]
    2. It is the uncontradicted evidence in this case that at the time of the commission of the defendant’s alleged negligent act, to wit: the collision and catching fire of the cars in the Sheraden yards, the plaintiff was miles away, in Allegheny city, and in a place of perfect safety; that plaintiff’s attention was attracted to the conflagration at Sheraden by hearing the first violent explosion and seeing the smoke, and that explosion and smoke and the knowledge that the plaintiff had thereof was the cause of his going to Sheraden; that before plaintiff descended into the Cork’s run valley he knew that the conflagration was not in dangerous proximity to his sister’s dwelling and before he arrived at his sister’s house he passed in close proximity to the burning tank cars, and had knowledge of the fact that the conflagration was caused by the burning tank cars. That after plaintiff arrived at his sister’s house he went down on the street at the north side of the railroad, on the bank above the fire and stood there with his sister discussing the fire. That at that time there was a great conflagration raging and the escaping gas was making a loud and threatening noise. That from the place where he was when, as he testified, he made up His mind to go home, his nearest route lay along Zephyr and Glenmawr avenues, on the north side of the track, to the ferry at the mouth of Cork’s run, but instead of taking this route he went west along the north side of the tracks to Sheraden station, crossed over the tracks and took the road known as Chartiers avenue, on the south side of the tracks and immediately adjacent to the railroad company’s right of way and yard where the conflagration was raging. That he walked along this road about 1,500 feet, directly towards the burning tank cars, and was at the time of the explosion in the immediate vicinity of the burning tank cars. That when he approached the burning tanks on the road he knew he was nearing a dangerous place and was taking the chances of getting past in safety.
    Under these circumstances plaintiff took the risk of injury and the verdict should be in favor of the defendant. Answer: Refused. [2]
    Verdict and judgment for plaintiff for $2,000. Defendant appealed.

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

      William, 8. Palzell, of Palzell, Seott $ Gordon, for appellant.
    Where one is in a place of safety at the time an act of negligence is committed which carries with it danger of personal injury, he cannot be heard to complain of the act of negligence if he subsequently voluntarily and without any necessity leaves his place of safety and suffers personal injury as a result thereof: Cooley on Torts, pp. 660, 661; 1 Kinkead’s Commentary on Torts, sec. 243; Evansville, etc., R. R. Co. v. Griffin, 100 Ind. 221; Conroy v. Chicago, etc., Ry. Co., 96 Wis. 243 (70 N. W. Repr. 486); C. C. C. & St. L. Ry. Co. v. Ballentine, 84 Fed. Repr. 935.

      L. K. Porter, with him 8. G. Porter, for appellee.
    In handling explosive substances involving the personal safety and lives of others, due care and diligence are nothing less than the most watchful vigilance, and most active diligence: Gudfelder v. Railroad Co., 207 Pa. 629; Keiser v. Gas Co., 143 Pa. 276 ; Dougherty v. Railroad Co., 171 Pa. 457; Penna. R. R. Co. v. Lewis, 79 Pa. 33.
    In a negligence case (the defendant’s negligence being proved) if there be any doubt upon the question of the contributory negligence of the plaintiff, either from inference or positive evidence, the case is for the jury: McCracken v. Consolidated Traction Co., 201 Pa. 378; Plonk v. Jessop, 178 Pa. 71.

      December 31, 1904:
   Opinion by

Mb. Justice Fell,

The only question raised by the assignments of error is whether a |verdict should have been directed against the plaintiff on the ground of contributory negligence. Through an accident in the defendant’s yard at Sheradeñ a number of tank cars containing a large quantity of naphtha were set on fire. The fire was communicated to other cars in the yard and there Was an extensive find disastrous conflagration which lasted several hours. Three hours after the fire started there was an explosion which threw burning naphtha beyond the limits of the yard and onto the street where the plaintiff was walking. The plaintiff testified that he had come from his home on the opposite side of the Ohio river because of his apprehension that the fire might spread and extend to the house of his sister in Sheraden. Having assured himself of her safety he started at once to return to his: home by way of Chartiers avenue, a borough street, the route by which he had come. Not finding a car on the avenue he walked on until one should overtake him. When he was opposite the place where the cars were burning and forty feet above and 260 feet from them, the explosion occurred. At this time the ordinary travel on the avenue had not stopped and the electric cars were running as usual. The employees of the railroad company and of the fire department were working in the yard within twenty or thirty feet of the cars.

The plaintiff had passed the fire on his way to his sister’s house and ¡knew that some of the cars contained oil or naphtha and was hurrying by, but there was nothing in the situation so clearly indicating danger to one passing on the avenue that the court could have withdrawn the case from the jury. It was submitted on the narrow ground that a recovery could be had only in the event that the plaintiff was on the street in the pursuit of his legitimate business and not loitering or standing there out of curiosity, and that the danger of an explosion was not so apparent that a reasonably prudent man would have recognized it and not attempted to pass.

The judgment is affirmed.


author: Mr. Justice Fell,

text:
    Smith v. Pittsburg, Cincinnati, Chicago & St. Louis Railway Company, Appellant
    (No. 2).
    Argued Oct. 28, 1904.
    Appeal, No. 138, Oct. T., 1904, by defendant, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1902, No. 608, on verdict for plaintiff in case of Charles F. Smith v. Pittsburg, Cincinnati, Chicago & St. Louis Railway Company.
    Before Mitchell, C. J., Dean, Fell, Brown, Potter and Thompson, JJ.
    Affirmed.
    December 31, 1904 :
   Opinion by

Mr. Justice Fell,

This action is by a father to recover for injuries sustained by his son, a minor, and involves the same questions that have been considered in Smith v. Pittsburg, etc., Railway Co., 210 Pa. 345. For the reasons stated in the opinion filed in that case the judgment is affirmed.


author: Mr. Justice Thompson,

text:
    Wright v. Hanna, Appellant.

      Contracts—Novation—Promissory note.

    The essentials of novation are the displacement and extinction of a prior contract, the substitution of a new contract, a sufficient consideration therefor, and consent of the parties thereto.
    Where a person receives from a decedent promissory notes with knowledge that they were impressed with a contractual obligation of the decedent, and he accepts renewal notes with the understanding that such notes are to be in substitution of the original note and that they are made only for the purpose of renewal and to have the name of the legatee appear as payee instead of the name of the decedent, no element of novation exists as to the renewal notes.

      Evidence—Witness—Competency of witness—Party dead,—Acts of May 23, 1887, P. L. 158, and June 11, 1891, P. L. 287.
    Where one of the parties to an agreement is dead, and no living witness has been called to testify in regard to any matter relative to the agreement that occurred prior to the death of the decedent, the surviving party is not competent to testify as to what took place prior thereto.

      Promissory notes—Interest—Rate of interest.

    Where the interest on a promissory note is fixed at less than six per cent "from date until paid,” such rate applies up to maturity of the note, and the words “until paid,” relate to such maturity, and thereafter the legal rate of six per cent will prevail.
    Argued Oct. 28, 1904.
    Appeal, No. 151, Oct. T., 1904, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1900, No. 679, on verdict for plaintiff in-case of Harry T. Wright v. J. Hanna.
    Before Mitchell, C. J., Dean, Fell, Brown, Potter and Thompson, JJ.
    Reversed.
    Assumpsit upon six promissory notes. Before Frazier, P. J.
    The form of the notes sued upon was as follows :
    “ $1,000.00. Sterling, Kansas, January 1, 1896.
    “ On or before the first day of June, 1897, I or we, or either of us, promise to pay to the order of Harry T. Wright, the sum of one thousand dollars, for value received, payable. . . . Kansas, with 4 per cent, interest, from date until paid, payable annually.
    “ J. H. Hanna.
    “Endorsed: Harry T. Wright.”
    Other facts appear by the opinion of the Supreme Court.
    The court gave binding instructions for plaintiff.
    Verdict and judgment of plaintiff for $6,843.33. Defendant appealed.

      Errors assigned were (1-3) rulings on evidence referred to in the opinion of the Supreme Court; (4) in giving binding instructions.

      James Gr. Hays, with him J. E. McKelvey, for appellant,
    cited on the question of novation : Collins v. Busch, 191 Pa. 549; McCartney v. Kipp, 171 Pa. 644; Lauer v. Yetzer, 3 Pa. Superior Ct. 461.
    Cited as to the competency of the witness: Rine v. Hall, 187 Pa. 264; Trickett on Witnesses, p. 128, sec. 137, and cases; Strause v. Braunreuter, 4 Pa. Superior Ct. 263-266; Bank v. Henning, 171 Pa. 399 ; Hamill v. Royal Arcanum, 152 Pa. 537-542; Carpenter v. U. S. Life Ins. Co., 161 Pa. 9-15; Trickett on Witnesses, p. 133, sec. 142, 143.

      Wm. B. Rodgers, with him L. M- Plum&r, for appellee,
    cited as to the novation : Shafer’s Appeal, 99 Pa. 246 ; Parsons v. Tillman, 95 Inch 452.
    December 31, 1904:
   Opinion by

Mr. Justice Thompson,

The six promissory notes sued upon in this case were originally held by Harry T. Wright and his brother. Three were made payable to the order of appellee and three to that of his brother, who subsequently indorsed them to appellee. These brothers were the heirs at law of John Roney, deceased, who prior to March 22, 1892, had been in partnership in the hardware business with the appellant. In the settlement of the partnership account appellant gave to decedent promissory notes aggregating $5,000 and all but one of which were renewed during his lifetime. Notes so given or their renewals were received by appellee and his brother as such residuary legatees of John Roney, deceased, their uncle. Tn renewal of the notes so received, but including an additional sum borrowed and interest, ten notes, aggregating $7,000, were given to appellee and his brother, but of these, four, covering interest and the additional loan, were paid and left $5,000 due on the six notes in suit, the amount originally due in the partnership settlement. The scope of the agreement of that settlement was the continuance of the business by appellant and in order to accomplish such result it provided that appellant should not sell out the business or form a new partnership or mortgage the property; that if at maturity the original notes given in settlement could not be paid out of the business they should be renewed and that they should not be the cause of any embarrassment to the business; that if at the expiration of five years from the dissolution of the partnership the appellant should not be able to pay them, then, or at any time thereafter, he might cancel them by deed of the syrup works land, it being one of the assets of the business, and that the contract should apply to any renewals of the notes. Appellant’s business proved unsatisfactory and the five years for the payment of the notes expired in 1897 and after suit was brought appellant tendered a deed for the syrup works land, covenanted to be delivered, in cancelation of the notes given or their renewals. In 1896, when the renewal notes were given, the appellee and his brother, under the advice of counsel, refused to give up the original notes, but retained them as evidence of the original indebtedness. The defense was that the renewal notes sued upon were subject to the agreement in question and that appellee knew it and appellant having tendered a deed as provided in the agreement, and having kept the tender good at the trial, appellee was not entitled to recover.

To establish this defense appellant offered a letter dated December 19, 1895 (exhibit 21), written by appellant to L. P. Plummer, Esq., attorney for appellee, and also his reply designated as exhibit 22. In this letter appellant writes: “ I am willing to renew notes making them payable to the parties named and to make two notes, each for $1,000 payable the first of June or July of each year and the last two notes for $500.00 each, due in December of the last year. I will make the rate of interest on each at four per cent, payable annually, so that the interest will be kept up and not accumulate. I say four per cent because this was the rate agreed upon on the purchase of the half interest of Mr. Roney, and it is as much a part of the contract as the amount itself.”

Again in the same letter he says: “ If you could I am quite sure you would all be much better satisfied with the propositions herein contained than you are likely to be without knowing the facts. It is specially hard such times as this to meet the obligations after the total loss of the part of the business out of which the obligations were to be met, and I say to you in good faith that I am going to pay the last cent of the obligations out of what remains if you will accept of the propositions herein contained.” He then states that the value of the stock on hand was not less than $10,000 and that he is willing to transfer it to any person whom they might designate. Mr. Plummer’s reply was that he had submitted this letter to the appellee and his brother, John D. Wright, and that they will accept the proposition upon the following conditions, namely : that appellant would assign a life insurance policy to them, pay in full back interest and that he will give certain notes bearing interest at the. rate of four per cent. In the post'cript to this letter is added for the purpose of indicating how interest should be computed, a note for $2,000, a note for $4,000 and a note for $1,000 with the number of months interest due. In the letter of John D. Wright, dated December 30,1896, he writes to appellant: “In regard to the original notes our legal adviser says we should hold them until renewal notes are paid, as they are the evidence of original debt.” The various letters in evidence signed by-Wright for Roney refer to the original notes in the agreement.

The purpose of the offer of tbe letter of December 29, 1895 (exhibit 21), and the reply thereto (exhibit 22) was to establish the fact that the notes sued upon were subject to the agreement that appellees knew it and that no novation was intended. They were clearly competent for this purpose and the learned trial judge erred in excluding them and having excluded them in giving binding instructions for the appellee. The essentials of novation are the displacement and extinction of the prior contract, the substitution of a new contract, a sufficient consideration therefor, and the consent of the parties thereto. If the appellee as a residuary legatee received the original notes, knowing they were impressed with the obligation contained in the agreement of partnership settlement, and retained them as such, if he received the notes in suit in renewal of them and accepted them as such, if appellant made them only for the purpose of renewal, if in fact they were practically a mere substitution of the name of appellee and his brother as residuary legatees as payees instead of that of decedent, a prima facie novation, as evidenced by the notes, would necessarily be swept away. If this be so, it follows that the letters, with the other proofs, were competent for the purpose of negativing an alleged novation.

Appellant was a competent witness as to what occurred subsequent to the death of John Roney, but not before, and the learned trial judge cannot be convicted of error in refusing to permit appellant to testify as to what took place previous to Roney’s death. Appellant in the line of his defense- that the notes were renewals and subject to the agreement, offered to prove “ that he had performed all the contract, exhibit No. 1, made with John Roney, deceased.”

In the Act of May 23, 1887, P. L. 158, it is provided that where any party to a thing or contract in action is dead and his right thereto or therein has passed by his own act or the act of law to a party who represents his interest, no surviving party can be a competent witness to any matter occurring before the death of such party, and under the Act of June 11, 1891, P. L. 287, he is made competent if, and only if, the relevant matter occurred between himself and another person who may be living at the time of the trial and may be competent to testify and who does so testify against such surviving or remaining party or if such relevant matter occurred in the presence or hearing of such other living or competent person. This act is construed in the case of Kauss v. Rohner, 172 Pa. 481, in which Mr. Justice Fell says:

“By the act of June 11, 1891, a surviving party is made competent to testify to any relevant matter which occurred before the death of the other party, if such matters occurred between himself and a person who is living and who testifies against him at the trial ‘ or if such relevant matter occurred in the presence or hearing of such other living and competent person.’ To this should be added the construction given in Roth’s Estate, 150 Pa. 261, that the surviving party is not competent unless the living witness has been called, and then to such matters only as he had testified to. The act applies to conversations or occurrences which took place in the presence or hearing of the witness who has testified and whom it is proposed to contradict: Thomas v. Miller, 165 Pa. 216 ; see also Krumrine v. Grenoble, 165 Pa. 98. The living witness to the conversation between the decedent and the plaintiff having testified, the plaintiff was competent to contradict him and to state her recollection of what was said.”

In Montelius v. Montelius, 209 Pa. 541, Mr. Justice Brown says:

“ From Roth’s Estate, 150 Pa. 261, decided in 1892, down to Rudolph v. Rudolph, 207 Pa. 889, we have uniformly held when it has been urged that the purpose of the act of 1891 is very broad, that its words have but one meaning, and that the lips of one who would have been incompetent before its passage are unsealed, only when its conditions of his competency arise on the trial.” See also Shroyer v. Smith, 204 Pa. 310.

As the other party to the agreement, Mr. Roney, is dead, and no living witness was called to testify in regard to any matter relevant to it that occurred prior to his death, appellant was not competent to testify to what took place prior thereto.

It maybe added, that it is but proper to say that where the interest on a promissory note is fixed at less than six per cent, sucli rate applies up to maturity of the notes, and the words, until paid, relate to such maturity, and thereafter the legal rate of six per cent will prevail.

The third and fourth assignments of error are sustained, the judgment is reversed and a venire de novo is awarded.


author: Mr. Justice Brown,

text:
    Gilkeson, Appellant, v. Thompson.

      Equity—Equity pleading- -Averments of fact—Conclusions from facts.

    An equity pleader need make no formal averment of a conclusion if he distinctly avers facts from which the conclusion must follow; but if he avers an argumentative conclusion without alleging the facts to support it, his bill is demurrable.
    On a bill in equity to compel tho reassignment of a mortgage, tho plaintiff averred that a decedent, of whom he was next of kin and heir, had been induced to assign the mortgage to two persons through fraud and duress, and that their assignees had in turn assigned the mortgage to a corporation, one of the defendants, and that the second assignment had been procured by one who was a stockholder, director and solicitor of the corporation. Then followed the averment that the corporation “had therefore full and complete knowledge of the whole transaction of the said assignments.” There was no averment that the solicitor and director knew of the alleged fraud or if he did, that he had imparted the knowledge to the company when he was acting for it in procuring the assignment to it. Held, that the bill was demurrable.
    To visit the principal with constructive notice, it is necessary that the knowledge of the agent or attorney should be gained in the course of tho same transaction in which ho is employed by his client.

      Decedents’ estates—Jurisdiction—Equity—Act of May 19, 1874, P. L. 200.
    A bill in equity by an heir and next of kin to secure a reassignment of a mortgage alleged to have been fraudulently procured from the decedent cannot be maintained where it appears from the bill that a paper purporting to be a will had been admitted to probate, and that plaintiff was conducting a contest not yet terminated to have the alleged will set aside. Plaintiff’s remedy in such a case is under the Act of May 19, 1874, P. L. 206, which gives tho orphans’ courts power to protect property over which they may have jurisdiction.

      M ortgage—A ssignment—Fraud—Parties—Equity.

    A bill in equity by the next of kin of a decedent to secure the reassignment of a mortgage averred that the decedent in his lifetime had assigned land to another and taken from his grantee a purchase money mortgage, and that the defendants by fraud-and duress had procured from the decedent an assignment of the mortgage. The grantee of the land subsequently conveyed the land to other parties, who were not made parties to the bill. A supplemental or amended bill was afterward filed in which it was averred that the grantee named in the deed from decedent was a fictitious person, and it was prayed that the mortgage be declared null and void. The parties to whom the alleged fictitious grantee had conveyed were not made parties to the amended bill. Held, that the amended bill was demurrable for insufficiency of parties, inasmuch as the anamolous result might arise in an ejectment against such persons, that their title would stand, though the mortgage against the property given for the payment of the purchase money by their own grantor, subject to which they took it, and against which they had no defense, had fallen.
    Argued Oct. 28, 1904.
    Appeal, No. 160, Oct. T., 1904, by plaintiff, from decree of O. P. No. 3, Allegheny Co., Aug. T., 1904, No. 327, dismissing bill in equity in case of Findley Gilkeson v. Euphemia Thompson, Rebecca Blanche Thompson, Mt. Washington Savings & Trust Company and Andrew G. Smith, Executor of John Long, deceased.
    Before Mitchell, C. J., Dean, Fell,- Brown, Potter and Thompson, JJ.
    Affirmed.
    Bill in equity to compel the reassignment of a mortgage. Before Evans, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in dismissing the bill.

      Edwin W. Smith, of Reed, Smith, Shaw Beal, with him Alexander Gilfillan, for appellant.
    The trust company was by implication charged with notice of the whole transaction: Earnest v. Hoskins, 100 Pa. 551.
    The mortgage made by a. fictitious person was null and void: 2 Blackstone, p. 295 ; Fallon’s Pa. Law of Conveyancing, sec. 122; Morris v. Stephens, 46 Pa. 200; Douthitt v. Stinson, 63 Mo. 268; Weihl v. Robertson, 97 Tenn. 458 (37 S. W. Repr. 274) ; David v. Williamsburgh City Fire Ins. Co., 83 N. Y. 265; Barr v. Schroeder, 32 Cal. 609; Muskingum Valley Turnpike Co. v. Ward, 13 Ohio, 120; Hulick v. Scovil, 9 Ill. 159 ; Van Amringe v. Morton, 4 Wharton, 382 ; Bennett v. Farnell, 1 Camp. 130.
    Equity did have jurisdiction to enjoin the foreclosure of the mortgage, or to set it aside, or to set aside the assignment of it: Mortland v. Mortland, 151 Pa. 593 ; Pomeroy’s Equity Jurisprudence, sec. 913.
    It has been- held, that a suit in equity to establish an indebtedness of an estate to the plaintiffs,- who are executors, may be maintained because they cannot bring an action at law: Glover v. Patten, 165 U. S. 394 (17 Sup. Ct. Repr. 411).
    Long, by his assignment of the bond and mortgage to the Thompsons, did not warrant its validity in the hands of the trust company: Jones on Mortgages, sec. 824; Littauer v. Goldman, 72 N. Y. 506.
    Even if there were such warranty to the Thompsons, it could not inure to the benefit of the trust company. There is no privity of contract between Long and the trust company: Moser v. Hoch, 3 Pa. 230.

      M. W. Aeheson, Jr., of Patterson, Sterrett Aeheson, for appellees.
    While as suggested by appellant his allegations, in view of the demurrer, are to be taken as true, the demurrer does not of course admit argumentative conclusions of the bill: Getty v. Penna. Institution for Blind, 194, Pa. 571, 575.
    In order to charge the principal with notice by reason of notice to or knowledge of the agent, it must appear that the agent acquired the notice, knowledge or information while acting for the principal in- the very matter in respect of which it is sought to visit the principal with constructive notice: Barbour v. Wiehle, 116 Pa. 308; Meehan v. Williams, 48 Pa. 238, 242; Houseman v. Girard Mut. Bldg. & Loan Ass’n, 81 Pa. 256, 262; Lohr v. Philipsburg Boro., 156 Pa. 246, 248; Bangor, etc., Ry. Co. v. Slate Co., 203 Pa. 6; Hood v. Fahnestock, 8 Watts, 489, 492; Custer v. Tompkins County Bank, 9 Pa. 27; Bank of Pittsburg v. Whitehead, Sproul & Co., 10 Watts, 397.
    While the assignee of a nonnegotiable chose in action takes title thereto subject to equities, it is subject only to equities of the obligor or debtor, and is not subject to the secret equities of anybody else : Taylor v. Gitt, 10 Pa. 428 ; Mott v. Clark, 9 Pa. 399.
    One who assigns a chose in action impliedly warrants its genuineness, and neither he nor a volunteer under him will be heard to assert the contrary as against an innocent purchaser: Flynn v. Allen, 57 Pa. 482.

      The trust company was not by implication charged with notice: Stevens v. North Pa. Coal Co., 35 Pa. 265; Davidson v. Little, 22 Pa. 245.
    The amendment was fatally defective for want of parties: Wilson v. White, 84 Cal. 239 (24 Pac. Repr. 114).
    December 31, 1904 :
   Opinion by

Mr. Justice Brown,

By his original bill the appellant asked that the Mt. Washington Savings and Trust Company be restrained from collecting a certain mortgage of which it was the holder, and that a decree be made directing it to reassign the same and the accompanying bond to some trustee for the estate of John Long, deceased. These had been given to Long to secure the payment of the balance of purchase money for land which he had sold to one O. P. Phillips. The appellant, as the next of kin and heir at law of Long, alleged, as grounds for the relief sought, that the decedent had been induced to assign the bond and mortgage to Euphemia and Rebecca Blanche Thompson through fraud and duress at a time when he was so enfeebled by his advanced age and physical condition as not to be capable of transacting business and of knowing the purport and meaning of .the assignment; and a further averment was that Andrew G. Smith, having knowledge of this assignment, after-wards procured the one from the Thompsons to the Mt. Washington Savings and Trust Company, of which he was one of the principal organizers, a director, a large stockholder and solicitor, and its representative in the assignment to it. Ther.e is then an argumentative allegation that “ the said Mt. Washington Savings and Trust Company had, therefore, full and complete knowledge of the whole transaction of the said assignments.”

A demurrer was filed to the bill by the trust company, which, while admitting its distinct allegation, did not admit the argumentative conclusions in it: Getty et al. v. Pennsylvania Institution for Instruction of the Blind, 194 Pa. 571. It is admitted by counsel for appellant that the bill does not charge the trust company with direct notice of the fraud alleged to have been practiced on Long, but it is insisted that the deduction just quoted is to be regarded as an admission by the demurrant that it had notice. The deduction would be so regarded if, from the averments as to notice, it was the only conclusion to be drawn. But a pleader need make no formal averment of a conclusion if he distinctly avers facts from which it must follow.

The demurrer was sustained, because, though the plaintiff alleged fraud and duress on the part of the Thompsons in procuring the assignment of the mortgage, he did not allege knowledge of the fraud on the part of the trust company, nor by Smith as its agent, but averred only the conclusion of its knowledge. The court might have gone further and properly said that there is not even an averment that Smith knew the assignment was fraudulent and had been procured by duress. The allegation is simply that it had been made with his knowledge ; there is no averment that he knew of the fraud alleged to have been practiced upon the assignor. But if the averments were broad enough to cover such knowledge by him before he acted for -the trust company, there is no allegation of knowledge by it brought to it through him when he acted for it in procuring the assignment of the mortgage to it. No matter what he may have known before he acted as its agent in procuring the assignment, such knowledge is not to be imputed to it when lie subsequently did act for it, unless the knowledge was reimparted to him as its representative while acting for it. This is the settled law: “ To visit the principal with constructive notice, it is necessary that the knowledge of the agent or attorney should be gained in the course of the same transaction in which he is employed by his client: ” Hood v. Fahnestock, 8 Watts, 489. Among our many later cases recognizing and enforcing this rule are Houseman v. Girard Mutual Bldg. & Loan Ass’n, 81 Pa. 256; Barbour v. Wiehle, 116 Pa. 308, and Lohr v. Philipsburg Borough, 156 Pa. 246. In Houseman v. Girard Mut. Bldg. & Loan Ass’n, supra, it was said by Shaeswood, J.: “It is only during-the agency that the agent represents, and stands in the shoes of his principal. Notice to him is then notice to his principal. Notice to him twenty-four hours before the relation commenced is no more notice than twenty-four hours after it had ceased would be. Knowledge can be no better than direct actual notice. It w'as incumbent on the plaintiff to show that the knowledge of the agent, to use the accurate language of one of our cases, ‘ was gained in the transaction in which he was employed.’ ” The first three grounds of demurrer were properly sustained.

The fourth ground of demurrer, not passed upon by the court, is that the bill discloses that the plaintiff had no standing to maintain it. His complaint is as next of kin and heir at law of John Long, deceased, but there is an averment that he died testate and that a paper purporting to be his last will was admitted to probate more than a year before the bill was filed! True, there is an averment that an appeal had been taken by the appellant from the probate, but there is no averment that, if the will should be sustained, he would have any interest in the estate of the testator. If the will stands it is to be assumed, in the absence of any allegation to the contrary, that he has no interest to be protected ; and it is not to be assumed that the will will be set aside. The case of the appellant as presented by him is that of one admittedly having no standing at the time he makes his complaint, but because he hopes for the successful ending of the contest to have the will of his kinsman set aside—in its very nature most uncertain— he asks to be heard. While the failure of the court below to consider the fourth ground of demurrer relieves us from saying anything about it, we are of opinion that if it had been sustained there would not have been error. This is especially true in view; of the Act of May 19,1874, P. L. 206, the seventh section of which provides that the orphans’ courts shall have power to prevent by order, in the nature of writs of injunction, acts contrary to law or equity prejudicial to property over which they shall have jurisdiction. Though this jurisdiction for the protection and preservation of property may be concurrent and not exclusive, it is the one to which the appellant ought to have resorted, for there his appeal from the probate of the will was pending, and there, if be was entitled to any relief, it could have been given him by a proper order during the pendency of his appeal, intelligently made by the same court that was to dispose of the appeal. If he were to obtain the decree asked for in the common pleas, and his appeal in the orphans’ court should fail, the decree would become a dead letter and the proceedings instituted to procure it would have to be regarded as having been useless and vexatious.

An amendment in the nature of a supplemental bill was fded, in which the appellant alleges that there was no such person as O. P. Phillips, the grantee named in Long’s deed and the grantor in the deed to Craig and Glenn; and the prayer of the amended bill is that the mortgage held by the trust company be declared null and void and that it be restrained from proceeding for the collection of the same. To this supplemental bill all of the defendants demurred, the fifth ground of demurrer being that the amendment was defective for want of parties. Neither Craig nor Glenn is a party to the original or supplemental bill, and neither would be bound by a decree made. Under his amendment the complainant would wipe out the mortgage, the security for which is the land owned by Craig and Glenn. If there should be a decree striking down the mortgage, and in an ejectment subsequently brought against Craig and Glenn they should retain the land under a verdict in their favor, there would be, as is well contended by counsel for appellees, the anomalous and astonishing result that their title would stand, though the mortgage against it, given for the payment of the purchase money by their own grantor, subject to which they took it and against which they had no defense, had fallen. The land would be theirs without paying for it.

The allegations in the amended bill as to notice by the trust company are no stronger than in the original, and we need not discuss this again. We affirm the decree sustaining the demurrer to the amended or supplemental bill, because, as was very properly said by the learned judge below, “ the plaintiff would still be left to try his title as against Glenn and the heirs of Wesley I. Craig by his action of ejectment. The only effect of the granting of the prayer of the plaintiff in this supplemental bill would be to leave the title to the land in dispute in Glenn and the heirs of Wesley I. Craig free of the incumbrance of the mortgage which their grantor gave. That would be a foolish thing to do. If the deed from Long to Phillips was a fraud, then the root of the evil is the outstanding title purporting to be conveyed by that deed, and until that is stricken down no court of equity would interfere with the mortgage in the hands of an innocent purchaser.”

Decree affirmed and appeal dismissed at appellant’s costs.


author: Per Curiam,

text:
    Warmcastle v. Scottish Union & National Insurance Company, Appellant.

      Insurance—Lightning—Windstorm—Evidence.

    In an action on a policy of insurance against a direct loss from lightning, but not from a windstorm, the case is for the jury where one witness testifies that a flash of lightning and the fall of a side wall of the building insured were simultaneous, and another testifies to the same thing as to the roof with the further fact that the material fell outward toward the wind.
    Argued Oct. 31, 1904.
    Appeal, No. 137, Oct. T., 1904, by defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1900, No. 15, on verdict for plaintiff in case of Charles A. Warmcastle v. Scottish Union & National Insurance Company.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Assumpsit on a policy of insurance. Before Kennedy, P. J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for plaintiff for $3,667.95. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      W. K. Jennings, with him D. O. Jennings, for appellant.

      James S. Young, with him D. M. Miller, and O. W. Reamer, for appellee.
    December, 31, 1904 :
   Per Curiam,

When this case was here before, 201 Pa. 302, it was held that a direct loss for damages from lightning was within the policy but loss from windstorm was not, and therefore it was incumbent on the plaintiff to distinguish between the two kinds of damage however difficult that might be. The only question now before us is whether the jury had sufficient evidence to enable them to make the distinction. We are of opinion that they had. At least one witness testified that the flash of lightning and the fall of the side wall were simultaneous and another testified to the same thing as to the roof with the further fact that the materials fell outwards towards the wind. It was a fair inference that the damage came directly from the lightning and only a jury could draw it.

Judgment affirmed.


author: Mr. Justice Mestrezat,

text:
    Haughey, Appellant, v. Pittsburg Railways Company
    (No. 1).

      Negligence—Street railways—“Stop, look and listen”—Evidence—Question ¡or jury.

    In an action against a street railway company to recover damages for death of plaintiff’s husband the case is for the jury where the evidence is in effect that the decedent was last seen standing on the curb of a street looking both ways for the approach of an electric car; that he was next seen lying against the curb toward which he was going, thrown there by collision with a car; that the car was running at an unusual speed, and was from 100 to 200 feet from the crossing when the decedent left the pavement, and there was no evidence as to the rate of speed at which the deceased approached the tracks.
    Argued Oct. 31, 1904.
    Appeal, No. 172, Oct. T., 1904, by plaintiffs, from order of C. P. No. 1, Allegheny Co., Sept. T., 1902, No. 151, refusing to take off nonsuit in case of Mary Ilaughey, Marie J. Ilaughey and Loretta Haughey v. Pittsburg Railways Company.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Reversed.
    Trespass to recover damages for death of plaintiff’s husband. Before Brown, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit.

      Matthew Loivrie, with him Robert E. Graham, for appellants.

      Jam.es O. Gray, with him Qlarence Burleigh and W. A. Ohallener, for appellee.

      December 31, 1904:
   Opinion by

Mr. Justice Mestrezat,

Between 12: 30 and 1 o’clock of the morning of March 25, 1902, Patrick Haughey was returning to his home in the city of McKeesport, Allegheny county. He walked east on the north side of Fifth avenue, “the central main thoroughfare” of the city, until he came to Coursin street where he turned south to cross the avenue. The defendant company has two car tracks on this street and as Haughey was crossing the south track he was struck by one of the defendant’s electric cars and thrown thirty or forty feet against the curb on the south side of the street, receiving severe injuries from which he died a few hours later. This action was brought to recover damages for Haughey’s death, which plaintiff alleges was caused by defendant’s negligence.

At the conclusion of the plaintiff’s testimony, the defendant’s counsel moved for judgment of compulsory nonsuit “ for the reason that it is apparent from the testimony that the decedent was guilty of contributory negligence in walking in front of a rapidly moving car.” The motion was sustained and a non-suit was granted, which the court in banc subsequently refused to take off. No opinion was filed as this court has frequently suggested should be done in such cases, and we are left to conjecture what part of the testimony the learned trial judge thought was sufficient to authorize him in pronouncing as matter of law that the deceased was guilty of contributory negligence. After a careful reading and consideration of all the testimony in the case, we are of opinion that the question of Haughey’s negligence was for the jury and not for the court to determine.

So far as the evidence discloses, none of the witnesses who testified in the case saw Haughey immediately before he stepped on the ear track or when he was struck by the car. Two of the witnesses, McDonald and McGuire, saw him on Fifth avenue that morning before he was injured. McDonald was walking east on the pavement of the street about 12: 30 o’clock returning from his work and passed Haughey standing on the sidewalk “ at the west crossing of Coursin street on the right hand side of Fifth avenue going west.” When he had gone about “ five doors east of Coursin street,” he heard “ the crash ” caused by Haughey being hit witli the car. He then “ turned around and saw a black object rolling in the gutter, rolling towards the gutter, and stopped and went back and seen them pick him out of the sewer drop and lay him on top of the sewer.” McGuire was going west on the north side of Fifth avenue just before the accident, and when he was within ten or fifteen feet of the Coursin street crossing, saw Haughey start at the curb to pass over the crossing from the north to the south side of Fifth avenue. He testified: “ Q. What did you see ? A. I seen the man try to make the crossing. Q. Did you notice whether or not Mr. Haughey looked up and down the track ? A. Yes, sir. Q. What did he do? A. As far as I seen the gentleman he looked his way right through. Q. What do you mean by that? A. Up and down. . . . Q. At the time Mr. Haughey started to make this crossing how far off was that car away from the crossing ? A. To the best of my knowledge, over 100 feet.”

This is the only testimony as to Haughey’s actions from the time he left the pavement on the north side of Fifth avenue to pass over the crossing to the south side. It is, therefore, established, if the testimony is credible, that Haughey, before starting to cross the street, performed his duty by looking in both directions for an approaching car. Did he continue to observe this precaution after he started over the crossing ? It was his duty, not only to look out for an approaching car before he attempted to cross the street, but also to continue this vigilance after leaving the sidewalk until he passed over the electric car tracks. In the absence of evidence to the contrary, it will be presumed he did his duty in this respect. No one saw him, and hence there is no direct testimony as to what he did after he left the curb on the north side of the avenue. It is contended, however, by the appellee that Haughey “ walked directly in front of a moving ear and was struck immediately upon entering upon the tracks; ” and for this reason the trial court, as matter of law, held him guilty of negligence preventing a recovery in the case. It is unquestionably true that such conduct constitutes negligence and if it were an undisputed fact in this case would relieve the defendant company from legal liability for Haughey’s death. But whether he was guilty of the alleged careless and negligent act was a question for the jury and not for the court. The negligence of the injured party must be the clear and unavoidable inference from the undisputed facte before the court can pronounce it as a matter of law: McGovern v. Union Traction Company, 192 Pa. 344. It cannot be treated as one of law unless the facte and the inferences to be drawn from them are free from doubt. If there is doubt as to either, the case is for the jury: Kuntz v. New York, etc., Railroad Company, 206 Pa. 162. Here the facts were not admitted nor undisputed but had to be determined from testimony that was not definite nor entirely consistent. Neither the speed at which the car was seen approaching the crossing nor the distance at which it was from the crossing at the time Haughey started to cross the street was definitely fixed by the testimony. The evidence tended to show that the car was “ running at an unusual speed,” and was “ over 100 feet ” and might have been “ 200 feet according to the speed ” from the crossing when Haughey left the pavement on the north side of the avenue. Whether thereafter the car lessened or increased its speed as it neared the crossing, the testimony does not disclose. Nor did any witness see at what speed Haughey walked toward the fatal track or where the car was when he was about to step upon it. These facte, material to the issue, are not undisputed, but must necessarily be ascertained from inferences to be drawn from the testimony in the case. It was in evidence that Haughey was standing on the sidewalk at the Coursin street crossing talking with some one and that after looking “up and down ” the track, he started to pass over the crossing. He was next seen lying against the curb of the street towards which he was going, thrown there by the collision with the car. How far these facts, if so found, and the inferences to be drawn from them might, show the exercise of care by the deceased and that he reasonably believed he could safely cross the car track before attempting to do so were also clearly for the jury.

The learned court below was in error- in holding as matter . of law that the deceased was guilty of contributory negligence, and, therefore, the judgment is reversed with a procedendo.


text:
    Haughey, Appellant, v. Pittsburg Railways Company
    (No. 2).

      Negligence—Death—Parties—Widow and, children—Act of April 26, 1855, P. L. 309.
    Where a husband is killed through the negligent act of another and leaves to survive him a widow and children the action for his death must be brought in the widow’s name alone, although the damages recovered are to be shared with the children in the proportion they would take the personal estate in case of intestacy.
    If in such a case the children are joined with the widow through a next friend as parties plaintiff, and a nonsuit is entered, and the children take a separate appeal in their own names, their appeal will be quashed.
    Argued Oct. 31, 1904.
    Appeal, No. 173, Oct. T., 1904, by plaintiff, from order of C. P. No. 1, Allegheny Co., Sept. T., 1902, No. 151, refusing to take off nonsuit in case of Mary A. Haughey, Marie J. Haughey and Loretta Haughey v. Pitts-burg Railways Company.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Appeal quashed.
    Trespass to recover damages for death of plaintiffs’ father. Before Brown, J.
    The opinion of the Supreme Court states the case.

      Error assigned was refusal to take off nonsuit.

      Matthew Lowrie, with him Robert F. Graham, for appellants.

      James G. Gray, with him Clarence Burleigh and W. A. Challener, for appellee.
    December 31, 1904:
   Opinion by

Mr. Justice Mestrezat,

Patrick Haughey, the husband of Mary A. Haughey and the father of Marie J. Haughey and Loretta Haughey, the plaintiffs, was seriously injured by a collision with one of appellee’s electric cars on Fifth avenue in the city of McKeesport, and shortly thereafter died- Ah action was brought against the appellee company, the defendant below, and in the plaintiffs’ statement it is set forth that “ Mary A. Haughey, widow, and Marie J. Haughey, a minor of the age of thirteen years, and Loretta Haughey, a minor of the age of nine years, by their next friend, W. W. Campbell, bring this action to recover damages sustained by reason of injuries to Patrick Haughey, husband of said Mary A. Haughey and father of said Marie J. and Loretta Haughey, resulting in the death of said Patrick Haughey.” On the trial of the cause, the court, on motion of defendant’s counsel, granted a nonsuit which it subsequently refused to take off. The record shows two appeals to this court were taken from this judgment, one, by Mrs. Mary A. Haughey at No. 172, October term, 1904, and the other by Marie J. Haughey and Loretta Haughey at No. 173, October term, 1904. In an opinion handed down this day in Mrs. Haughey’s appeal, we have reviewed and reversed the judgment of the court below and awarded a procedendo. We now have before us for consideration the appeal of Marie J. Haughey and Loretta Haughey, the minor children of Patrick Haughey deceased.

The general maxim of the common law is actio personalis moritur cum persona, and therefore no action would lie for negligence resulting in death. But this was changed by the legislature of this state, and by the 19th section of the Act of April 15, 1851, P. L. 674, it is provided that “whenever death shall be occasioned by unlawful violence or negligence, and no suit for damages be brought by the party injured, during his or her life, the widow of any such deceased, or, if there be no widow, the personal representatives, may maintain an action for and recover damages for the death thus occasioned.” By this legislation, therefore, a right of action for death occasioned by “ unlawful violence or negligence ” was given to the widow of the deceased, and, if he had no widow, to his personal representatives. This was the law of the state until the passage of the Act of April 26, 1855, P. L. 309, in the first section of which it is provided that “ the persons entitled to recover damages for any injury causing death, shall be the husband, widow, children or parents of the deceased, and no other relatives; and the sum recovered shall go to them in the proportion they would take his or her personal estate in case of intestacy.” The effect of this statute was to deprive the personal representative of a right of action in such cases and to vest it in the husband, widow, children or parents of the deceased. If there is a husband or widow, and children surviving, the action must be in the name of the husband or widow alone. The children should not be joined as plaintiffs in the action. The sum recovered, however, does not belong solely to the plaintiff in the action but, as provided by the statute, shall go to the relatives of the deceased in the proportion they would take the personal estate in case of intestacy. In order that the record may disclose who the beneficiaries are, it is provided in the second section of the act of 1855 that “ the declaration shall state who are the parties entitled in such action.”

It will be observed, therefore, that the foregoing legislation permits a recovery of damages for death caused by negligence and designates the person who shall bring the action, the proportion in which the damages recovered shall be paid and provides that the statement shall set forth the parties entitled as distributees of the fund recovered in the action. In the ease in hand, the procedure pointed out by the statute was disregarded. The widow and the two children by their next friend were joined as co-plaintiffs. The action should have been brought in the name of Mary A. Haughey as plaintiff, and it should have been averred in the statement that she and the two children were the parties entitled to the damages recovered in the action. The children should not have been joined with the widow as plaintiffs. There is no authority whatever for bringing the action in their joint names or for the children joining in the action by a next friend. The whole procedure was irregular and in disregard of the provisions of the statute, and the court below would doubtless have so declared had its attention been called to the matter.

Mary A. Haughey being the proper plaintiff in the action, the judgment of nonsuit must be regarded as having been entered against her and she was the proper party to have the judgment reviewed on appeal. This, as we have seen, she did and the judgment has been reversed and another trial will be had. The two minor children who are the appellants here having no right to appeal from the judgment entered against the plaintiff, it • follows that this appeal must be quashed.

As the widow was living, they could not institute the action in their own names to recover damages for the death of their father, nor when improperly joined with the widow as plaintiffs, could they, in their own names, take an appeal from an adverse judgment.

Before another trial takes place, the plaintiff should amend the record and the statement so that the pleadings will conform to the requirements of the act of 1855. This may relieve the case of future complications both in the trial court and, possibly, in this court.

Appeal quashed.