text:
    Tilburg, Appellant, v. Northern Central Railway Company.

      Negligence — Railroads—Passenger—Ejectment of passenger from train —Nonsuit.

    The servants of a carrier should not expel a passenger at a time or place which is dangerous, and the carrier will be liable in such a case not only for injuries directly suffered in connection with such expulsion, but also for subsequent injuries proximately due thereto, such as injury from other trains which the ejected person could not reasonably avoid, the probable consequences of improper exposure, and the like.
    • A passenger who had purchased a ticket was unable to find it on his person when the conductor demanded it. Two persons stated to the conductor that they saw the ticket purchased. The conductor subsequently made a second demand for the ticket, and when the passenger’s destination was reached he prevented him from leaving the train, demanding either the ticket or the fare. When this was refused he carried the passenger to the next station, which was a flag station, where he ejected him, shoving him from the train. The night was dark and stormy and the station and its neighborhood was unknown to the passenger. He started to walk back along the railroad to the station of his destination. He was not afterwards seen alive. His body was found with marks on it, indicating that he had been struck and killed by a locomotive. Held, that it was error to enter a nonsuit.
    Argued March 18, 1907.
    Appeal, No. 313, Jan. T., 1906, by plaintiff, from order of C. P. Lycoming Co., Dec. T., 1905, No. 217, refusing to take off nonsuit in case of Mary Tilburg y. Northern Central Railway Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Stewart, JJ.
    Reversed.
    Trespass to recover damages for death of plaintiff’s husband. Before Hart, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned, was refusal to take off nonsuit.

      Otto G. Eaupp, with him M. C. Rhone, for appellant. —
    A railway company owes a duty to every passenger who, in good faith, purchases a ticket and enters any of its conveyances. If the conveyance is one which, by the contract, the passenger has no right to take, its duty is to inform him and put him off at a proper place: Lake Shore & Michigan Southern Ry. Co. v. Rosenzweig, 113 Pa. 519; Arnold v. Penna. R. R. Co., 115 Pa. 135; Pennsylvania Co. v. Toomey, 91 Pa. 256; Penna. R. R. Co. v. Kilgore, 32 Pa. 292.
    April 22, 1907:
    The deceased was not put off at a proper place: Malone v. Pittsburg & Lake Erie R. R. Co., 152 Pa. 390; R. R. Co. v. Werner, 89 Pa. 59.
    This court has held many times that where one is put in a position of embarrassment and difficulty by the negligence of a railroad company,, he is not bound to use the best judgment, but only good faith and reasonable prudence: Stover v. Penna. R. R. Co., 195 Pa. 616; Malone v. Pittsburg & Lake Erie R. R. Co., 152 Pa. 390; Doyle v. Chester Traction Co., 214 Pa. 382; Russell v. Westmoreland County, 26 Pa. Superior Ct. 425.
    If returning to Cogan Valley on foot on and along the tracks of appellee was a natural and reasonable thing for Til-burg to do under all the circumstances, then it was a course of action which the conductor should have foreseen, and the consequences which attended the effort are not too remote to be considered in the computation of damages: Hoag v. R. R. Co., 85 Pa. 293; Morgan v. Electric Co., 213 Pa. 151.

      Seth T. McCormick, for appellee.
    Except at crossings where the public have a right of way, a man who sets his foot upon a railroad track, does so at his peril. The company not only have the right of way, but such right is exclusive at all times and for all purposes: Mulherrin v. R. R. Co., 81 Pa. 366, 375; Ry. Co. v. Collins, 87 Pa. 405; R. R. Co. v. Norton, 24 Pa. 465; R. R. Co. v. Hummell, 44 Pa. 375; Ham v. Canal Co., 155 Pa. 548.
   Opinion by

Mr. Justice Mestrezat,

This is an action of trespass to recover damages for the death of Robert D. Tilburg, the plaintiff’s husband. In the afternoon of January 3, 1905, he arid his son Edward purchased tickets at Williamsport, Lycoming county, over the defendant’s road for Cogan Valley station. At the same time one Charles Stamets purchased a ticket for Haleeka, a flag station about one mile beyond Cogan Valley, and the three parties entered and took seats together in a coach of the same train. Soon after the train left Williamsport, the conductor asked Tilburg for his ticket who, after searching his pockets, informed the conductor that he had a ticket for Cogan Valley but was unable to find it. The conductor then told Tilburg to look for his ticket and he would return, which he shortly did after taking up the tickets of the other passengers. He again asked Tilburg for his ticket and was again informed by Tilburg that he had a ticket but could' not find it. The conductor then made inquiry of Stamets, who was present when Tilburg purchased his ticket, and was informed by Stamets that Tilburg had purchased a ticket from Williamsport to Cogan Valley. The son, Edward Tilburg, also gave the conductor the same information. About that time the brakeman announced Cogan Yalley station. Edward Tilburg arose from his seat to leave the train and went to the door of the coach and on the platform. At the same time his father got up from his seat but the conductor stood at the entrance to the seat with his hand on Tilburg’s shoulder, demanding the ticket or the fare, and would not permit Tilburg to leave the coach, telling him that he, the conductor, must have the ticket or the fare before they came to the next stop or he would take care of him.” The train stopped only a minute at Cogan Valley. Edward Tilburg alighted, but his father was still on the train. The conductor continued to demand the ticket or payment of his fare until the train arrived at- Haleeka, where it stopped. Here the conductor put Tilburg off the train. Stamets who was present and also alighted from the train says that the conductor shoved Tilburg “ down off the step.” This was at five o’clock in the evening and it was dark. Edward Tilburg testified that “ it was storming when the train left Williamsport, and that in the evening it was snowing and blowing terrible cold; very cold, the coldest day we had last winter;” that it had been storming since the day before; and that there were four inches of newly fallen snow on the ground. Stamets testified: “ Q. Standing at the Haleeka flag station, at the point where Robert Tilburg was ejected, at the time that you say that he was ejected, what could you see of the surrounding country ? A. Couldn’t see anything. Q. Why? A. It ivas dark and stormy and the wind was blowing very hard, and you couldn’t see anything.” Stamets says there was no house or place of shelter at the station. Tilburg was a stranger in that comxñunity, and had' never been at the station before. The conductor gave him no information as to where he could find shelter or how he could return to Cogan Valley. After he had been ejected from the coach, Tilburg asked Stamets if he knew how he could get back to Cogan Valley station, and Stamets told him “the only way I knew was to go back down the railroad, because I didn’t know any more about it than he did.” The evidence does not disclose that there was any station house or other buildings at Haleeka in which Tilburg could secure shelter or protection from the storm, or in which he could remain during the night. Nor did it appear whether there were any roads in that vicinity, or that there was any other practicable or safe way than the railroad by which Tilburg could have returned to Cogan Valley.

After Tilburg had been ejected from the train, he started to return to Cogan Valley by way of the railroad. He was not again seen until his body was found along the railroad track the next morning about a quarter of a mile from Haleeka station. The ticket he had purchased at Williamsport for Cogan Valley was in his pocket. Fifteen or twenty minutes after Tilburg’s ejection from the train a freight train passed towards Williamsport, the direction in which Tilburg was walking. The evidence tended to show that he was killed by being struck by a locomotive.

Hpon these facts, the learned trial judge granted a nonsuit which he subsequently refused to take off. The nonsuit was granted solely on the ground that the plaintiff had failed to show affirmatively that the deceased could not have returned to Cogan Valley except by walking on the railroad track. The learned court in its opinion refusing to take off the non-suit held “ that it was the duty of the plaintiff to affirmatively show the necessity of the deceased to follow the railroad track, towards his place of destination, and having totally failed so to do we granted the compulsory nonsuit now under consideration.”

We cannot agree with the learned trial judge in the disposition he made of this case. Having purchased the ticket and having taken his place in the coach of the defendant’s train, Tilburg became a passenger and it was the duty of the defendant’s servants to treat him as such. The conductor was informed by Edward Tilburg and Stamets that Tilburg had purchased a ticket which entitled him to be carried from Williamsport to Cogan Yalley. It was his duty when requested to deliver his ticket, and, after being given a reasonable time to find it and failing to produce the ticket or pay his fare, the conductor could have expelled him from the train. This could have been done at Cogan Valley station, Tilburg’s destination, which the train at the time was approaching and at which it subsequently stopped. Tilburg desired to leave the train at that station but was prevented by the conductor. This action on the part of the conductor was a clear misapprehension of his duty and an infringement of the rights of Tilburg. The train stopped at the station but a moment, hardly giving Til-burg an opportunity to alight if he had not been prevented from doing so. The train moved on, and the next station is a flag station. Here the conductor exercised his authority and, if the only testimony submitted is believed, forcibly ejected Tilburg from the train, at a time and place and under circumstances which a jury would have been fully justified in finding endangered the life of the passenger. If the case had been submitted, and the jury had so found, it would clearly have been negligence on the part of the carrier company: 2 Hutchinson on Carriers (3d ed.), sections 1082, 1084. In 6 Cyclopedia of Law and Procedure, 563, it is said: The servants of the carrier should not expel a passenger (or even a trespasser) at a time or place which is dangerous, and the carrier will be liable in such a case not only for injuries directly suffered in connection with such expulsion, but also for subsequent injuries proximately due thereto, such as injury from other trains which the ejected person could not reasonably avoid, the probable consequences of improper exposure, and the like.”

Under the facts disclosed by the evidence it was, therefore, a question for the jury to determine whether the conductor had exercised the care required of him in expelling the passenger from the train at Haleeka flag station: 2 Hutchinson on Carriers (3d ed.), sec. 1083. As said by Mr. Justice Gordon in delivering the opinion of the court in Arnold v. Pennsylvania Railroad Co., 115 Pa. 135: “ In the case in hand, the duty of the conductor, in expelling the plaintiff from the cars at the time and place selected for that purpose was certainly one that was not strictly defined. It may be admitted that as a faithful officer he was obliged to eject Arnold from the train, but then the very important question arises, did he, as the company’s employee, properly discharge this obligation in dismissing the plaintiff from the car between the tracks of the railroad, on a very dark night, at a way station that, from the want of light in or about it, could not be seen ? As everything in this proposition depends upon facts and circumstances, its solution was for the jury.” In the case at bar, while it is true the expulsion took place at five o’clock in the afternoon, it was a January evening, and the uncontradicted evidence shows that it was dark, the lights were shining at Cogan Valley as the train passed. There were no lights at Haleeka station. A fierce storm was at the time, and had been since the previous day, prevailing in that community. The weather was extraordinarily cold and the country was covered with snow to an extent which rendered it difficult to see any paths or roads which might exist at that place or might load in the direction of Cogan Valley station. Under these circumstances, the duty of the conductor towards a passenger or even a trespasser upon his train certainly could not be determined as a matter of law by the court so as to justify the conductor’s action in expelling Tilburg from the train. If it had clearly appeared by the evidence of the plaintiff, and there is no other evidence in this case, that the passenger had been ejected in daylight and under circumstances which gave him an opportunity to protect himself from danger in returning to Cogan Valley, we would have another and an entirely different question before us. The plaintiff has shown the place where her husband was ejected and the conditions under which he was ejected, and the facts as disclosed by her testimony are clearly sufficient to go to the jury on the question of the negligence of the defendant’s servants in expelling the deceased from the train. If, as contended by the defendant company, the deceased was expelled from the train at a safe place and under conditions which did not make the expulsion unsafe, those facts must be made to appear by testimony. It was not the province of the court to surmise whether there were roads leading from or to Haleeka station, or whether there were highways leading from that station to Cogan Valley, or whether there was a station house at Haleeka, or whether there was a club house or other houses in that vicinity. These were matters which were not shown by the testimony and which, therefore, did not justify the court in withdrawing the case from the jury.

After Tilburg had been expelled from the train he was required to use reasonable and ordinary prudence in seeking shelter and in attempting to return to Cogan Valley. Under the circumstances, it was not negligence per se for him to walk on the railroad in going from Haleeka to Cogan Valley. As said in Ham v. Delaware & Hudson Canal Co., 155 Pa. 548, the cases cited by appellee which hold that a man who steps his foot on a railroad track except at a public crossing does so at his peril have no application to the facts presented here. If, as alleged by the plaintiff, her husband was put off the train at Haleeka station at a time and under circumstances which imperiled his life, he was not guilty of negligence if in escaping from the position in which he had been placed he acted as a reasonably prudent man in walking on the defendant company’s tracks. As pertinent and applicable to the facts of this branch of the case, we may here quote the language of the present chief justice in Ham v. Delaware & Hudson Canal Co., 155 Pa. 548, 553: “ The substantial controversy in this case is upon the standard of conduct required of a man who, like Ham, is wrongfully put on’a railroad track, as to the time and manner of getting off. The learned judge below told the jury concisely in affirming the plaintiff’s thirteenth point, that all the care that was required of Ham after being put off the car was simply the ordinary care and diligence of a reasonably prudent man under the circumstances; and again in affirming the defendant’s twenty-second point, that when Ham was placed upon the track it was his duty to leave the same at the earliest practical (practicable) moment, and if he did not do so, he was guilty of contributory negligence. . . . That this was the proper rule for the guidance of the jury does not admit of question. Ham as already noted was put in a place of danger without fault of his own; he was bound to use care, diligence and judgment to get out at the first opportunity ; but using these ho was not chargeable with responsibility for the result, and the standard of the care, diligence and judgment he was bound to use was the common standard of the ordinary prudent and careful man.”

What avenue or avenues of escape were presented to Tilburg that night, and whether he exercised prudence and care in selecting the railroad as the way for reaching his destination after his ejection from the train, were questions for the jury. He was a stranger there, and the darkness prevented him from seeing the real conditions as they existed. Snow covered the earth and hid from his view what lay beneath. Would a reasonably prudent man, under the circumstances, have started out into the darkness and the storm to hunt roads or paths unknown to him and which might have existed and thus subject himself to the dangers of the holes and pitfalls which might have been open to receive him, or would he have taken the direct route which lay along the defendant’s tracks to travel the mile required to reach his destination ? Again we may be permitted to quote as pertinent in this connection what was said in the Ham case (p. 555): “ Whether a safe road was there or not was only a part of the question. There still remained whether Ham, with ordinary diligence and prudence could have seen it, and seeing ought to have taken it. A man familiar with the locality may take an uninviting path, knowing it will lead him aright, while a careful man not knowing how it may turn out, nor even whither it may lead, may well be exonerated from negligence in not making the experiment, though it would in fact have been the best thing to do. The elements of prudent conduct on the part of Ham were too many and too varied to be determined except by the jury, and the rulé laid down for the jury’s guidance was in accordance with the settled law.”

Malone v. Pittsburg & Lake Erie Railroad Co., 152 Pa. 390, was an action for personal injuries by a woman who was wrongfully ejected from a train upon which she was a passenger at a regular stopping place where there was no station house but only a box car used temporarily as a station. A storm was prevailing at the time she was ejected. She started to walk back to the station from which she had started and on the way was overtaken by a storm which injured her health. In affirming a judgment for the plaintiff, the present chief justice says (p. 393): “We start with the fact established by the verdict that plaintiff was wrongfully put off the train, at a regular station to be sure, but one where she was a stranger and where there was at the time no regular station house. She was in no fault herself, and being thus put in a position of embarrassment and difficulty, she was not bound to use the best judgment, but only to good faith and reasonable prudence: Penna. R. R. Co. v. Werner, 89 Pa. 59.”

Whether the servants of the carrier company were guilty of negligence in carrying Tilburg beyond Cogan Yalley station or in putting him off at Haleeka station, which in either case proximately resulted in his death, and whether he exercised the care required of him after he had alighted at Haleeka station are questions which should, under proper instructions, have been submitted to the jury. The nonsuit was improperly granted, and the judgment must be reversed.

The assignments of error are sustained, the judgment is reversed, and a procedendo is awarded.


source: Caselaw Access Project

author: Mr. Justice Brown,

license: Public Domain

text:
    Royer’s Estate.

      Decedents’ estates — Promissory note — Findings of fact — Evidence— Want of consideration.

    Where a claim is presented against a decedent’s estate on a promissory note given by the decedent to the claimant as payee, checks of decedent dated prior to the making of the note are inadmissible as evidence of the payment of the note; and in such a case want df consideration for the note is not established by evidence that the decedent in giving the note to the payee said: “Here is something for you. I would give you 'the money for this, but my financial affairs are somewhat tied up. It will suit me a great deal better to give you this. Will it do just as well?” And that the payee said: “That is quite nice,” in a laughing way.
    A finding of fact by the orphans’ court that there was want of consideration for a promissory note given by a decedent to a woman, and that there was a meretricious relation between them, will be reversed where there is no evidence to support the findings.
    April 22, 1907:
    Argued March 19, 1907.
    Appeal, No. 332, Jan. T., 1906, by Fanny Harrington, from decree of O. C. Montgomery Co., March T., 1906, No. 15, overruling exception to adjudication in Estate of Lewis Royer, deceased.
    Before Mitchell, O. J., Fell, Brown, Mesteezat and Stewart, JJ.
    Reversed.
    Exceptions to adjudication.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in overruling exception to adjudication.

      Charles F. Linde, with him Henry L. Fox, for appellant.

      Montgomery Evans, with him John M. Dettra, for appellees.
   OriNioN By

Mr. Justice Brown,

The claim of the appellant which was disallowed was on a promissory note made by the decedent on August 9,1903, for $2,000, payable to her order one year after date, with interest. The execution of the note was established and it was admitted in evidence without objection. When asked by the court what the nature of the defense to it was, the reply was that it was without consideration, and, if there was a consideration, it had been paid.

By no one of the witnesses called by the estate was it shown that the note, or any portion of it, had been paid. The adjudicating judge admitted in evidence a number of decedent’s checks produced by the appellees, stating that he assumed they were offered to show payments on the note. One of the offers embraced eight checks. In only two of them was the appellant the payee, and they, with five others, had been drawn before the execution of the note. Four of them had been drawn in 1901, two in 1902, and one in May, 1903. The only one drawn after the execution of the note was dated October 1, 1903, and was payable to the order of James McCarter, who received it from the appellant in payment of rent for a house. Another offer included thirteen checks, all of which were payable to the order of Strawbridge & Clothier, and only two of them were drawn after August 9, 1903. These checks, of course, ought not to have been admitted as evidence of payments on the note, and when counsel for the estate closed their testimony they did not pretend that any proof of payment had been submitted, but relied upon what they regarded as proof offered by them of want of consideration, and called upon the appellant to prove consideration for the obligation held by her. The claim was not disallowed because the note had been paid, but solely on the ground of want of consideration.

What is said of the failure of the executors to prove payment of the note is equally true of their failure to submit any evidence showing want of consideration. ' Nothing at all ivas shown by them going to the consideration. They offered no evidence as to why or under what circumstances the note was given, and, when they closed their case, there was nothing before the court on the subject of consideration, except what was before it when the note was received in evidence, bearing on its face prima facie evidence of consideration. The maker stated he had given it “ for value received.” The burden of rebutting consideration was upon the appellees: Conmey v. Macfarlane, 97 Pa. 361. This they have not rebutted. The appellant, in rebuttal, needlessly called a witness, T. H. Moore, to prove the circumstances under which the note was given, and, on the oral argument before us, counsel for appellees contended that, if they had failed to show want of consideration, it had been shown by the appellant herself through this witness. The court below seems to have been of this opinion, but in it we cannot concur. The testimony of Moore was as follows: “We were playing cards, Dr. Royer, Miss Harrington and myself, in the dining-room. The clock struck nine. Dr. Royer said, ‘You will excuse me now. I am not quite as young as I used to be. I always make it a point to go to bed at nine o’clock.’ He started out of the room, came back again, put his hand in his pocket, and said, ‘ Here is something for you, Fanny.’ I think that is what he called her. He said, ‘ I would give you the money for this, but my financial affairs are somewhat tied up now. It will suit me a great deal better to give you this. Will it do just as well ? ’ She took it over to the light, looked at it, threw it on the table and said, ‘That is quite nice,’ in a laughing way. I took it and saw it was that note. I handed it back to her and said, ‘Yes.’” This testimony, instead of being consistent only with the theory that the note was without consideration, is entirely consistent with the execution and delivery of it for a valuable consideration, and nothing said by Moore can be regarded as evidence overcoming the presumption of such a consideration. If the note was a mere gift from the decedent, he would hardly have felt himself called upon to make excuse for not having the money to give to her in its stead. He said just about what is frequently said when a debtor, not having ready funds at his disposal, asks his creditor to take his obligation, and her reply in accepting it, in view of the admittedly friendly relations existing between them, is not to be construed as an admission by her that she received it as a gift. On a theory unsupported by evidence that the note was a gift, it was disallo wed,, and, in disallowing it, the court said: “ The decedent at the time was a man of means, the president of a national bank; he was not engaged in active business, and it would seem his situation did not require him to borrow money. We conclude that there was no consideration for the note, and that it was a gift of the decedent to claimant.” Men of means, presidents of national banks, not engaged in active business, at times borrow money, though their situations do not seem to require it, and, when they do, it is their own business, and their obligations are no more to be suspected as mere gifts than are the obligations of those who are naturally expected to borrow.

The adjudicating judge apparently did not have very great confidence in his conclusion that the testimony of Moore indicated that the note was a gift, for he further held that from the facts and circumstances shown by the appellees he was led to the conclusion that the relation between the claimant and the' decedent at the time the note was given were meretricious and unlawful, and that the burden was, therefore, cast upon her to prove its consideration, and “ to explain away all suspicion of illegality concerning the transaction.” In the testimony, which is not voluminous, we can find nothing justifying the conclusion that the relation existing between the decedent and the claimant was of such a character as to cast upon her the burden of explaining away all suspicions of the illegality of the note. There is no evidence of its illegality. The decedent was an old man between seventy and eighty years of age, his wife was dead, and none of his immediate family were around him. It was but natural that he should take some one into his home on his farm to board him and to look after him, and that the claimant there rendered these services to him, that he subsequently, when she moved to Philadelphia, stopped with her, and at times overnight', and may have, therefore, helped to contribute to the expense of her housekeeping, are not circumstances from which the conclusion should folioav that he was living in illicit relations with her, and that the note which he gave her resulted from them. There is no presumption that' their relations were meretricious. The presumption is ahvays in favor of innocence. The finding that this old man and the claimant were living together unlawfully was based not upon evidence, but upon suspicion. One of the findings is that he was susceptible to the wiles and influences of a young Avoman.” There is not a line in the testimony to justify this, or that the claimant, if she was wily, ever attempted to exert any undue influence over him. No fact developed, from the time the old man took the claimant into his home on his farm down to the time that he died, shoAved their relations to have been unlawful.

Findings of fact by a lower court are rarely set aside. .This is so because facts are rarely found without some evidence to support them. If there be evidence to support them, they are not to be set aside because we might have found differently, but when there is no evidence to support an alleged material fact the finding of it must be set aside.

The decree of the court below is reversed, and the record remitted, with direction that the claim of the appellant be allowed.


author: Mr. Justice Potter,

text:
    Mulholland’s Case.

      Election laws — Appeals—Certiorari.
    Where a case under the election laws is brought into the appellate court by certiorari, the court cannot review the findings of facts or merits of the case, but it has jurisdiction to inspect the whole record with regard to the regularity and propriety of the proceedings to ascertain whether the court below exceeded its jurisdiction or its proper legal discretion.

      Election law — Registration—Failure to register — Act of February 17, 1906, P. L. 49.
    A person presented a petition to the court of common pleas averring that he had in his possession naturalization papers, but had mislaid them, and did not find them in time to present them to the board of registrars. That subsequently he appeared in person before the commissioners of registration, and produced all proofs of his qualifications as an elector, including a certified copy of his naturalization papers, but they refused to register him because he had not produced the papers on one of the three registering days. The court allowed the appeal and indorsed on the petition “name to be added.” It did not appear that he had presented a petition to the commissioners alleging error in the action of the registrars, nor did he allege that he was prevented from registering by illness, or unavoidable absence from the county. Held, that the common pleas had no jurisdiction, and that all of the proceedings before that court should be quashed.
    Mitchell, C. J., dissents.
    Argued March 25, 1907.
    Appeal, No. 385, Jan. T., 1906, by Clinton Rogers Woodruff et al., Registration Commissioners, from order of C. P. No. 2, Phila. Co., Sept. T., 1906, No. 4,140, adding name to registry list in case of William Mulholland.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Stewart, JJ.
    Reversed.
    Petition to add name to registry list.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was the order of the court.

      Thos. Raeburn White, for appellants.
    No printed brief for appellees.

      April 22, 1907:
   Opinion by

Mr. Justice Potter,

On November 2, 1906, William Mulholland filed a petition in the court of common pleas No. 2, for the county of Philadelphia, in which he averred that he was a qualified naturalized voter of the twentieth division, nineteenth ward, of the city of Philadelphia; that he had in his possession naturalization papers, but had mislaid them and did not find them in time to present them to the board of registrars; that on October 19, 1906, he appeared in person before the commissioners of registration and produced all proofs of his qualifications as an elector, including a certified copy of his naturalization papers, but they refused to register him as a qualified elector of his division, assigning as their reason that he should have produced naturalization papers on one of the three registering days. He prayed the court to grant him an appeal from the decision of the commissioners, and to make such order as* they might deem just and right under the circumstances. The court allowed the appeal and on November 21, 1906, indorsed on the petition; “ Name to be added,” evidently meaning to order that the name of the petitioner should be added to the registry list.

By certiorari, the board of registration commissioners for the city of Philadelphia have brought the record before us for review. As to our jurisdiction in the matter, it is settled that “ the judicial authority of this court extends to the review and correction of all proceedings of all inferior courts, except where such review is expressly excluded by statute, in accordance with the constitution:” Gosline v. Place, 32 Pa. 520. After considering the prior decisions, Justice Woodward said in Chase v. Miller, 41 Pa. 403, “ Such, then, in general, is the jurisdiction of this court, to correct all manner of errors of inferior judicial tribunals; and that is not to be taken away, except by express terms or irresistible implication.”

In a recent case, also arising under the election laws, Chief Justice Mitchell said: “The case having been brought to this court by certiorari, the first question is our jurisdiction. The proceeding being entirely statutory and without appeal, we cannot review the findings of fact or the merits of the case, but under the general supervisory powers of the court on certiorari we are entitled to inspect the whole record with regard to the regularity and propriety of the proceedings to ascertain whether the court below exceeded its jurisdiction or its proper legal discretion: ” Independence Party Nomination, 208 Pa. 108.

Turning to the law governing the present case, we find that the Act of February 17, 1906, P. L. 49, entitled “ An act to provide for the general registration of electors in cities of the first and second classes of this commonwealth, to make such registration a condition of the right to vote in such cities, and to provide penalties for the violation of its provisions,” provides (sec. 3) for the appointment for each of said cities of a board of registration commissioners, consisting of four members, who shall (sec. 5) each year appoint four registrars for each election district of the city. The registrars of each division are required (sec. 6) to meet at the polling place thereof on the ninth Tuesday, seventh Tuesday and fourth Saturday preceding the November election and the fourth Saturday preceding every municipal election, and remain in open session from 7 a. m. to 10 p. m. of each registration day, to receive applications from persons claiming to be entitled to be registered as voters. Every person claiming the right to vote is required (sec. 7) to appear before the registrars in the district in which he lives prior to every general election, and make answer to certain prescribed questions. All persons claiming the right to vote by reason of naturalization must (sec. 9) produce the proper naturalization papers, or a certified copy thereof, before they shall be registered. No person may be registered (sec. 8) unless at least three of the registrars determine that he possesses or will possess before the next ensuing election the qualifications of an elector as provided in the constitution and laws of this commonwealth, and only such persons (sec. 17) as shall be registered are permitted to vote at any general, special or municipal election.

If any citizen (sec. 15) objects to the action of the registrars in accepting or rejecting any claim for registration, he may file his petition -with the commissioners setting forth the ground of his complaint, and the commissioners, after hearing, may amend the registry of voters in accordance with their decision. An appeal lies from the decision of the commissioners to the court of common pleas, but must be made not later than five days preceding an election. A qualified elector (sec. 15) who was too ill to appear at the polling place on any of the registration days, or was unavoidably absent from the county on those days, may petition the commissioners at any time up to two weeks before the general election, setting forth the facts and praying that his name may be added to the register. Any person dissatisfied with the decision of the commissioners on such petition may appeal to the court of common pleas as in other cases. But except in these two instances, no provision for an appeal appears in the act. In the present case the petitioner had not been rejected by the registrars. He does not even aver that he ever appeared before them on any one of the registration days, and he expressly admits that he did not produce to them his naturalization papers, or a certified copy thereof, as he- was required to do as a prerequisite to registration. He presented no petition to the commissioners alleging error in the action of the registrars, nor does he allege that he was prevented from registering by illness, or unavoidable absence from the county. Under these circumstances the commissioners had no power under the act to order his name to be added to the register, nor is there any right given to the court of common pleas to entertain an appeal from their refusal to make such an order. The record shows an entire absence of jurisdictional facts upon which the action of the court of common pleas could have been based. Its proceedings are unauthorized by any of the provisions of the act of assembly. The order of the court below is therefore reversed and set aside, and the proceedings upon the petition for an appeal from the decision of the commissioners of registration, are quashed.

Mitchell, C. J., dissents.


author: Mr. Justice Mestrezat,

text:
    Wetherill v. Gallagher, Appellant.

      Landlord and tenant — Bailment—Trade fixtures — Boilers.
    Where a tenant of premises in which are boilers owned by the landlord, takes out the boilers himself and places them on a neighboring lot, and for the purposes of his business installs other boilers which he has acquired on a bailment lease, and subsequently upon default in the stipulated rent for the boilers, the lessors in the bailment lease declare the lease terminated, and assert their right to the possession of the boilers, and thereafter the lessee is declared a bankrupt before the landlord of the premises had distrained for rent, the owners of the boilers have a right to resume possession of their property without being required to restore the old boilers to their former place; nor are they required to pay the landlord the arrears of rent due him by the tenant.
    Argued March 25, 1907.
    Appeal, No. 7, Jan T., 1907, by defendants, from decree of C. P. No. 5, Phila. Co., June T., 1904, No. 3,922, on bill in equity in case of Robert Wetherill and Richard Wetherill, copartners, trading as Robert Wetherill & Company, v. Francis G. Gallagher, S. Arthur Love, Emma R. M. Love, Fidelity Trust Company, surviving executors of the will of Henry Gibson, deceased, Downing Paper Company and James I. Linea weaver, Trustee in Bankruptcy of The Downing Paper Company.
    Before Mitchell, C. J., Fell, Mestbezat, Potteb and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Martin, P. J., found the facts to be as follows:
    BINDINGS OB BAOT.
    On March 25, 1902, Francis G. Gallagher became seized of a manufacturing property at Thirty-first and Locust streets in the city of Philadelphia, subject to a mortgage of $21,000, held by the Fidelity Trust Company, surviving executor of the will of Henry Gibson, deceased.
    On July 10,1902, a written communication was sent to The Downing Paper Company by Emma R. M. Love, stating that the title to this property was held by Francis G. Gallagher in trust to secure the payment of moneys advanced for its purchase, and upon payment thereof for her benefit, and offering to rent the property to The Downing Paper Company for twenty-five years for a consideration of $25,000 in stock of the company, $3,000 per annum, payment of the water rent and part payment of fire insurance premium. On the same day Gallagher executed a lease to The Downing Paper Company for the premises, “ together with the building thereon erected, machinery, fixtures, tools and implements contained therein.” The lessee agreed to make such ordinary repairs to the buildings, machinery and plant as might be required in order to use and operate the same; and it was provided that all betterments in the nature of permanent improvements or additions to the machinery contained in the premises at the date of the agreement, and thereafter placed upon the premises by the lessee, not in the nature of repairs, should belong to and be the property of the lessee, and might at any time during the continuance of the agreement, be removed by the lessee; provided in so doing the buildings and remaining portion of the machinery should be left in good and proper order and condition.
    On December 21, 1903, The Downing Paper Company entered into an agreement to lease from Robert Wetherill & Company two 250-horse power boilers to be erected upon the leased premises. The paper company agreed to build sub-foundations, provide buildings properly protected for installing the boilers, and to keep the boilers insured for the benefit of Wetherills until the expiration of the lease of the boilers, and to pay Wetherills for the use of the'boilers $1,000 in cash, and $250 rent every thirty days, not to sublet or dispose of the boilers during the continuance of the lease without the consent of Wetherills, or remove them from the leased property; and to surrender them to Wetherills, unless purchased by the company, upon the termination of the lease, at the price stipulated upon the contract. In the event of the failure to pay the rent, Wetherills reserved the right to declare the lease ended, and take immediate possession of the boilers.
    S. Arthur Love, the husband of Emma R. M. Love, was treasurer of The Downing Paper Company, and instrumental in securing the company as tenants for the property, and in obtaining the boilers from Wetherill.
    On February 19, 1903, Emma R. M. Love executed a general power of attorney authorizing him to act for her. There was a battery of eight boilers in the plant, two of which were removed and the two Wetherill boilers put in the place. The Wetherills made the drawing and supervised the location, but had nothing to do with the removal of the old boilers or erection of the foundation for the new ones. No notice was given by them to anyone of the terms upon which the paper company obtained the boilers. Wetherills thought the paper company owned the building. The agreement between Wetherill & Company and The Downing Paper Company was executed by S. Arthur Love, treasurer.
    On March 20, and April 20, 1904, the monthly rental due for the boilers was not paid.
    On May 20, 1904, the paper company was adjudged a bankrupt and J. I. Linea weaver, Esq., was appointed receiver and subsequently became trustee.
    On May 31, 1904, demand was made upon him for payment of the rent due for the boilers.
    On June 20, 1904, The Downing Paper Company and the receiver were notified that by reason of the nonpayment of the rent, Wetherills had exercised their right to declare the lease terminated and take possession of the boilers.
    On June 21,1904, Gallagher executed a declaration in which it was stated that the purchase money for the property at Thirty-first and Locust streets belonged to an estate of which S. Arthur Love and Sally L. Love were trustees, under the terms of a trust which provided that Sally L. Love should have the benefit from the estate during her life; and Gallagher declared that he held title to the premises in trust for the estate and under agreement with said trustees to convey the premises to Emma E. M. Love, wife of S. Arthur Love, or her appointee, upon payment of $10,500 with interest and legal charges.
    On June 24, 1904, Mr. Lineaweaver, the receiver, executed an order directing the watchman upon the premises to admit the representatives of Wetherill & Company for the purpose of removing the boilers. On the same day Wetherills received a communication from counsel for Gallagher alleging that the boilers were obtained by The Downing Paper Company for the purpose of replacing other boilers which were part of the building rented to them as a whole, and claiming that the new boilers were part of the real estate and stating that he would retain the boilers, and hold Wetherills liable in damages if they attempted to enter the premises. The boilers can be removed by opening the wall of the building in which they are set.
    On June 25, 1904, a member of the firm of Wetherills and one of their employees endeavored to gain admission to the building. They presented the order from the receiver to the watchman in charge employed by Gallagher, who refused to permit them to enter.
    A bill in equity was filed by Robert Wetherill and Richard Wetherill, copartners, trading as Robert Wetherill & Company, against Francis G. Gallagher, S. Arthur Love, Emma R. M. Love, The Fidelity Trust Company, surviving executor under the will of Henry Gibson, deceased, and The Downing Paper Company and James I. Linea weaver, trustee in bankruptcy of The Downing Paper Company, praying that the complainants be declared exclusive owners of the boilers, and that respondents be required to deliver up possession; for an injunction to prevent the sale of the boilers; for discovery by Gallagher, S. Arthur Love and Emma R. M. Love as to the ownership of the real estate; and for an injunction to prevent the sale or disposition of the real estate, including the boilers as part thereof; and for a decree restraining respondents from preventing complainants from removing the boilers, and requiring The Downing Paper Company, and Linea weaver, as trustee in bankruptcy, to specifically perform the terms of the agreement of lease of the boilers and to surrender them to complainants; and for general relief.
    A joint and separate answer was filed by Gallagher, S. Arthur Love and Emma R. M. Love, admitting the material averments in the bill, but alleging that the boilers in question had been substituted for others removed from the premises, and stating that The Downing Paper Company were in default in the payment of rent due to Gallagher.
    Lineaweaver, the trustee in bankruptcy, in his answer admitted certain allegations of the bill of complaint, required proof of others, and denied certain conclusions of law.
    The Fidelity Trust Company filed no answer and a decree pro confesso was entered.

      CONCLUSIONS OF LAW.
    The agreement between Wetherill & Company and The Downing Paper Company established a bailment, and under its terms the title to the boilers remained in the bailors: Edwards’s App., 105 Pa. 103.
    Where personal property is attached to land for purposes of trade, the intention' of the parties is the determining factor in ascertaining whether it is a fixture and part of the realty: Hill v. Sewald, 53 Pa. 271.
    In the agreement made by Wetherill & Company they wore authorized to terminate the lease and take possession of the boilers, if the paper company failed to comply with its terms.
    While between the landlord and tenant of the land it might appear inequitable to permit the latter to remove the boilers in question before provision is made for the restoration of those formerly on the premises, which they took out, and requiring payment of the rent in arrear for the building, the complainants do not claim. the boilers under any of the terms of the lease made by Gallagher to the paper company, but as owners’ title of the bailee having been terminated.
    There was no provision in the lease of the building providing that the property of the tenant should be forfeited for noncompliance with the terms of the lease: Wick v. Bredin, 189 Pa. 83; nor was there any provision which would entitle the landlord to hold Wetherill & Company or their property liable for breaches of covenant by the tenant.
    The boilers were placed upon the premises as trade fixtures and complainant should be permitted to remove them: Lemar v. Miles, 4 Watts, 330, and should be required to close up the wall and restore the building to its present condition without expense to the landlord.
    Under the prayer for general relief, compensation is claimed for deterioration in the value of the boilers since the date when complainants made demand for them. Gallagher, the landlord, held the property as trustee and was advised’by counsel to retain possession of the boilers. Complainants received the sum of $1,000 at the beginning of the bailment, which was to be applied to the purchase if the agreement had been consummated, but the diminution in the value of the boilers is a much smaller sum. This claim is not allowed.

      April 22, 1907:
    The prayers of the bill of complaint praying that the boilers be delivered to complainants are granted.

      Error assigned was the decree of the court;

      E. O. Michener, for appellants.
    When articles have been put up in substitution of others which were attached to the premises at the time of the demise, the tenant, on taking down his own fixtures, is bound to restore the former or to replace them by another erection of a similar description: Penna. Globe Gas Light Co. v. Gordon, 18 Montg. 189; Whiting v. Brastow, 21 Mass. 310.
    The plaintiff had no right to remove the boilers without paying or tendering the rent due and restoring the property to its original condition.

      Edward Brooks, Jr., with him Frederick J. Geiger and Edgar Dudley Faries, for appellees.
    As between the Wetherills and the paper company, the boilers in question were personalty, and the fact that they were affixed to the realty could not change their character, or deprive the Wetherills of their right of property: Hall Mfg. Co. v. Hazlett, 11 Ontario App. 749.
    The goods of a stranger cannot be followed and distrained: Adams v. LaComb, 1 Dallas, 440; Sleeper v. Parrish, 7 Phila. 247.
    It is not now denied by the appellants that the lease of the boilers to The Downing Paper Company was a bailment and not a conditional sale, and the following authorities are conclusive on this point: Rieker v. Koechling, 4 Pa. Superior Ct. 286; Stiles v. Seaton, 200 Pa. 114; Edwards’s Appeal, 105 Pa. 103; Potter v. Stetson, 11 Pa. Superior Ct. 627; Lippincott v. Scott, 198 Pa. 283.
   Opinion by

Mr. Justice Mestrezat,

Notwithstanding the numerous assignments of error and the very elaborate brief of the learned counsel for the appellant, he has discussed the law involved in the case under two heads. The trial judge has found and stated the material facts in his adjudication, and on those facts the decree may well be affirmed.

1. Under all our authorities, the contract between the plaintiffs and The Downing Paper Company was a bailment of the boilers and they continued to be the personal property of the plaintiffs. They were trade fixtures and such as a tenant may remove during the continuance of his term: Hey v. Bruner, 61 Pa. 87. On failure to comply with any of the covenants of the bailment, it was stipulated that the plaintiffs, who were the bailors, should have the right to declare this lease void .... and to take immediate possession of said property wherever they may find the same.” The paper company, the bailee, failed to pay the stipulated rent for the boilers as it became due, and on June 20, 1904, the plaintiffs exercised their right to declare the termination of the lease and take possession of the property. One month prior to this date, the paper company was adjudged a bankrupt and the plaintiffs’ property was then in the possession of the receiver. A few days after the bailment had been terminated, the receiver directed the watchman on the premises to admit the plaintiffs for the purpose of removing the boilers. On the same day Gallagher, the paper company’s lessor of the premises, notified the plaintiffs “ that the boilers were obtained by The Downing Paper Company for the purpose of replacing other boilers which wore part of the building rented to them as a whole, and claiming that the new boilers were part of the real estate, and stating that he would retain the boilers.” The defendants’ first contention is that the plaintiffs had no right to re? move their boilers without replacing the old boilers in the place they originally occupied in the manufacturing plant. The paper company secured the new boilers because it desired and needed additional steam-producing capacity for its paper manufacturing plant. The plaintiffs had nothing whatever to-do with removing the old boilers. This was done by the paper company which removed them to an adjoining lot on the same premises. Neither did the plaintiffs erect their boilers in the paper manufactory. It is true they supervised the location of them, but the paper company built the sub-foundation, provided the building to inclose them, and erected the boilers on the foundation. Why, then, should the plaintiffs replace the old boilers in the manufacturing plant ? They did not remove them, nor did they receive them as part payment for the. new boilers. .They committed no waste of the premises nor did they do any injury to the premises as they did not detach and remove the old boilers. In a word, they had nothing to do with the old boilers or with removing them from the manufacturing plant. Under the circumstances, therefore, the plaintiffs were not required to restore the old boilers-to their former place in the plant, before they could annul the lease with the paper company - and resume possession of the new boilers, the title to which remained in them.

2. The other contention of the appellants is that the plaintiffs had no right to remove their boilers without paying the rent and restoring the property to its original condition. The learned judge correctly found that “ the (new) boilers can be removed by opening the wall of the building in which they are set,” and in the decree, the court has directed “ that the said complainants be required to restore any portion of the premises which may be affected by the removal' of the said boilers to its present condition.” Of this contention, therefore, the remaining cause of complaint is that before retaking their property the plaintiffs should have paid’ the arrears of rent. But as we have held the paper company held this property as bailee, and the bailment was, for sufficient cause and within its terms, declared by the plaintiffs atan end on June 20, 1904. The premises were 'then in the hands of a receiver in bankruptcy who properly conceded the title to be in the plaintiffs and also their right to remove the property. At that time there was $1,000 of rent in arrear, but the landlord had not distrained and hence the tenant could have removed his personal property from the premises and it would not then have been subject to distress, unless fraudulently removed. It is, however, different with the property of a stranger which may be distrained while on the demised premises, but cannot under any circumstances be followed and made subject to payment of arrears of rent. Here, there was no privity between the landlord of the premises and the plaintiffs and, after the annulment of the bailment, the boilers were the property of a stranger who could remove them, unless a distress had previously been levied for the rent. In order to subject personal property to the payment of rent due for the demised premises, the landlord may distrain the property, or where the property of the tenant has been taken in execution or has been assigned for the benefit of creditors, the landlord is, under present legislation, entitled to bo paid one year’s rent out of the proceeds of sale. Neither of these conditions existed here at the time the plaintiffs declared the termination of the lease and were entitled to the possession of their property. If the paper company had then been in possession, it could have been compelled to deliver the property to the plaintiffs. As it was, the property was in custodia legis, and the receiver became the trustee of the plaintiffs and hold the property for them. It was then beyond the grasp of the landlord of the premises, and he could not follow and subject it by legal process to the payment of his rent.

We fail to see that the plaintiffs have done or are doing anything inequitable in this litigation. They are simply insisting upon their rights under the contract with the paper company. The property in controversy belongs to them and neither the paper company nor the landlord of the demised premises has title to it or the right to retain it. The plaintiffs did not get the old boilers nor the value of them, and are not responsible, either in law or equity, if the paper company removed and disposed of them. That is a matter between the owner of the premises and his lessee, the paper company, and with which the plaintiffs have no concern. The latter have done equity and, therefore, have a right to ask equity.

We think that, under the undisputed facts of the case, the learned trial judge reached the proper conclusion, and, therefore, the decree of the court below is affirmed.


text:
    Colket’s Estate.

      Decedents’ estates — Promissory notes — Contribution—Evidence.
    On a claim against a decedent’s estate for contribution, it appeared that claimant had made in decedent’s lifetime four promissory notes for $5,000 each, payable to his own order, and indorsed by decedent, and that decedent had made one note for $5,000 to his own order, and indorsed by himself and the claimant. The claimant after the death of the decedent paid all of the notes, and asked contribution against the estate for one-half the aggregate amount. Plaintiff offered testimony by witnesses other than himself which tended to show that he. and the decedent were interested in a mining operation, although the decedent’s interest was much less than that of the claimant; that large amounts had been advanced on the operation, and at the time the notes were given there was urgent need for more money; that the decedent manifested more interest and anxiety that the money should be raised than claimant or any other stockholder; that he visited claimant’s office almost daily, and importuned him to raise the money; that decedent suggested that the easiest and only way was to borrow the money; that the claimant reluctantly consented to borrow the money; and that the note made by decedent himself was so made to save the bank which discounted it from exceeding its ten per cent limit. Held, that the evidence was sufficient to show that the two men agreed jointly to raise $25,000 for the mining venture, and that the plaintiff was entitled to contribution against the decedent’s estate.
    Argued March 26, 1907.
    Appeal, No. 99, Jan. T., 1907, by John W. Woodside, from decree of O. C. Phila. Co., April T., 1906, No. 152, dismissing exceptions to adjudication in Estate of George H. Colket, deceased.
    Before Mitchell, C. J., Pell, Mestrezat, Potter and Stewart, JJ.
    Reversed.
    Exceptions to adjudication.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in refusing to sustain the claim of the appellant for contribution from the estate of the decedent.

      Hampton L. Carson, for appellant.
    In this case this court is invited, not to review and set aside a finding of fact by the court below, not to determine a conflict depending on the weight of testimony, or the credibility of witnesses, but to review and correct errors in deductions from undisputed testimony, and to set aside conclusions from reasoning which is at war with the evidence taken as a whole: Phillips’s App., 68 Pa. 130; Sproull’s App., 71 Pa. 137; Hindman’s App., 85 Pa. 466; Cake’s App., 110 Pa. 65.
    The right to contribution results from the maxim that equality is equity. The creditor may collect all the debt from the principal or any one of several sureties, or he may collect from every surety his proper proportion. If, having this right, he collects it all from one surety, the law clothes such surety with the same power and enables him to enforce contribution: Lansdale v. Cox, 7 T. B. Monroe (Ky.), 401; Agnew v. Bell, 4 Watts, 31; Deering v. Earl of Winchelsea, 2 Bos. & Pul. 270; Hagerthy v. Phillips, 83 Me. 336 (22 Atl. Repr. 223); Mulcare v. Welch, 160, Mass. 58 (35 N. E. Repr. 97).
    April 22, 1907:
    It is clear that the right of contribution exists. There is no necessity for an agreement. The court below was in error as to this. Parties are bound to contribute unless there be an agreement to tbe contrary. In other words, it is unnecessary for the claimant to prove an agreement to pay the proportionate share, his right to recover depending upon the quasi-contractual relationship: Tobias v. Rogers, 13 N. Y. 59; Jeffries v. Ferguson, 87 Mo. 244.

      H. B. Gill, with him John R. Read, Silas W. Pettit and Louis B. Runk, for appellee.
    The claim was properly disallowed: Am. Home Savings Bank Co. v. Trust Co., 210 Pa. 320; Fuller v. Law, 207 Pa. 101; Clarke v. Allen, 132 Pa. 40; Martin v. Berens, 67 Pa. 459; Ziegler v. McFarland, 147 Pa. 607; Delaware County Trust, etc., Co. v. Haser, 199 Pa. 17; Dodge v. Chessman, 10 Pa. Superior Ct. 604; Kling v. Kehoe, 58 N. J. L. 529 (33 Atl. Repr. 946); Youngs v. Ball, 9 Watts, 139.
   Opinion by

Mr. Justice Mestrezat,

This litigation arises out of a mining venture in Arizona. It appears from the evidence that John W. Woodside, the appellant, and George H. Colket. now deceased, were stockholders and directors in the Mohave Gold Mining Company, a Delaware corporation, whose mining property was in Arizona. O. A. Turner, a practical mining man, was the president and general manager of the company, and in 1903 was in Arizona superintending the development of the property. After expending about $300,000, it was discovered by Turner that more money would be needed. He had loaned the company $100,000, and in the fall of 1903 wrote to some of the stockholders and directors, who resided in the east, advising them of the necessity of additional funds which he thought ought to be raised by the eastern parties interested in the company. Among others, be wrote to Woodside telling him that more money was needed to- continue the development of the property. Twenty-five thousand dollars in installments of $6,000 each was remitted to Turner by drafts drawn by him on Wood-side. This money was obtained on five promissory notes, each calling for $5,000, and the last renewals of which show one of them to have been made by George H. Colket, payable to his own order and indorsed by him and Woodside, and the other four to haim been made by Woodside payable to his own order and indorsed by Colket. Three of the notes were payable at and discounted by the First National Bank of Huntingdon, Pennsylvania, and the other two were discounted, respectively, by the National Security Bank of Philadelphia and by the Windber National Bank of Windber, Pennsylvania.

Before the last of the renewal notes became due Colket died, and Woodside was compelled to pay them. At the audit of the account of Colket’s administrator, in the orphans’ court, Woodside presented a claim for $12,500, the one-half of the amount of money which was remitted by him to Turner for use in developing the Mohave company’s mining property. Woodside claims that the money was raised by him and Colket at Colket’s express request, for use of the company, and having been obliged to pay the full amount of the notes upon which the money was raised he is entitled to contribution from Colket’s estate for the one-half of the amount he was compelled to pay. The claim was resisted by Colket’s administrator, on the ground that Colket did not agree to join Woodside in raising the money which was sent west for the use of the company, that he in no way obligated himself for the payment of the money, and that there is not sufiicient evidence tending to show that the liability for the money was other than that shown by the notes which disclosed a primary liability on the part of Woodside. The auditing judge disallowed the claim and he was sustained by the court in banc. Woodside has taken this appeal.

The question here is one of contribution. If Colket and Woodside raised this money jointly for the use of the company, they would then, in the absence of evidence showing the contrary, each be liable for the one-half of it. It is, therefore, simply a question of fact which must be determined from the evidence submitted to the auditing judge, whether Woodside and Colket were acting together and jointly in procuring and remitting the money to the company for use in the development of its mines. It is to be regretted that the facts upon which the question turned are not more clearly and definitely disclosed by the evidence. Colket’s death has sealed the lips of Woodside, and the stories of both men, in regard to the transaction, must forever remain untold. The rights of the parties, therefore, must be determined by such other testimony as is available.

Having presented this claim, the burden is upon Woodside to sustain it. As found by the learned auditing judge, “ it may fairly be presumed that the money raised was used for the benefit of the Mohave company, and it is clear that both Mr. Colket and Mr. Woodside obligated themselves to the banks to pay the notes on which it was borrowed.” The testimony clearly supports this finding. To sustain his claim, Woodside called several witnesses, and a brief reference to their testimony is necessary to determine the question of fact involved. George D. Woodside is a son of the claimant and was treasurer of the company, and he says he heard many conversations between Colket and his father, in the latter’s office, with regard to raising the money. lie testified that Colket suggested that the easiest and only way was to borrow the money; that his father objected to raising the money in that way, but “ finally, rather than let the enterprise fall through for the small sum of twenty-five to thirty thousand dollars, which might be necessary, they agreed together that Mr. Colket and he would raise the money on their joint notes.” He says he heard all the details about raising the money discussed; that Colket came into the office every day to ascertain how they were getting along, physically and financially; that Colket suggested they could borrow the money from the Penn National Bank of Philadelphia or the bank at Huntingdon, Pennsylvania, and that he saw Mr. Colket sign each of the final renewal notes.

Carl N. Gage is a director of the First National Bank of Huntingdon. He testified that Colket arranged with him and his bank for the loan of the money; that “ I think it was five thousand dollars and then increased from that on; ” that Colket said he would send “ a note for himself and Mr. Woodside: ” that the notes of January 16, 1905, and February 17,1905, except the printed portions of them, were in Colket’s handwriting; that the paper he agreed with Colket to discount was that in which the latter and Woodside were to join; that the note discounted by the Windber Bank was secured through his bank; that to avoid exceeding their ten per cent limit his bank required Colket to become the maker of one of the notes.

Meyer Schamberg was interested in the Mohave company. He testified that he was in Woodside’s office very frequently when Colket was there and heard conversations about raising money for the Mohave company; that on one occasion the latter said “ we will have to send out that money,” to which. Woodside replied that he did not care to furnish any more money; that Colket then said “John, you cannot lay down now, we have gone too far for that, the money has to be sent out;” that Woodside again said he did not have the money to which Colket said “ I will arrange for a note; ” that Woodside said that he did not like to do that, but Colket said, “John, we have to do it;” that finally Woodside agreed and Colket brought in a note.

Benjamin A. Hazel, a director of the Mohave company, heard many conversations between Colket and Woodside about raising the money. He testified that the company ran out of funds and the question daily arose as to how they were going to meet Turner’s demand for more money; that Colket said to Woodside “ we would have to raise it, we cannot possibly let the matter go by default now when we have every assurance the mill will start shortly,” and proposed that if Woodside would make the note he would indorse it and get the money from the bank at Huntingdon where he was a director, to which Woodside finally consented. He further says that one of the conversations took place in the fall of 1903, about the time of the completion of their mill, and that the amount mentioned was between $20,000 and $25,000.

O. A. Turner, the superintendent and general manager of the company, says he was on the company’s property in Arizona in the fall of 1903. He testified that he went out there and found that a great deal more money was required to develop the property; that he had already loaned the company $100,000 and wrote east to some of the other stockholders and directors to raise the additional funds; that he obtained the money by drafts on Woodside; that he drew for $5,000 at a time.

The appellee called Jacob O. Donaldson, who testified that occasionally at Colket’s request he got a check from Woodside for the discount of “I think probably Huntingdon notes.” The appellee also offered in evidence copies of two letters written by Colket addressed to Woodside which, it is claimed, shows that Woodside paid interest or discount on the notes on which the money for the Mohave company was raised.

Such is the material testimony in this case, and it is not contradicted. The credibility of the witnesses is not impugned and we must regard their testimony as verity. As an appellate court, therefore, we are at liberty, notwithstanding the findings of the court below, to draw our conclusions and inferences from the facts: Phillips’s Appeal, 68 Pa. 130; Cake’s Appeal, 110 Pa. 65. We think it is apparent that there was a joint liability on the part of Colket and Woodside for the money raised and sent to Turner for the use of the Mohave company. The testimony unmistakably shows that Colket manifested more interest and was more anxious that the money should be raised than Woodside or any of the other interested parties. He visited Woodside’s office almost daily, and was continually importuning him to join in raising the money. Woodside hesitated. He thought he had already put enough money in the venture, but Colket insisted that the enterprise should not be permitted to fail by their failing to raise a small sum of money. It appears by the testimony, which is not contradicted, that Woodside reluctantly though finally agreed “ that Mr. Colket and he would raise the money on their joint notes.” Colket presented the notes to his own bank, secured the money, and handed it to Woodside. He attended to discounting and rediscounting the notes. He said upon more than one occasion, addressing Woodside, that we would have to raise the money.

On the part of Colket’s estate, it is claimed that four of the five notes show a primary liability by Woodside, and that other facts disclosed in the case shows the same liability on the fifth note. If this were a suit by the holder of the notes, ho would be entitled to hold Woodside as the maker and Colket as the indorser of the four notes. Such is the liability of the parties as disclosed by the notes themselves. But, as we have already said, this is a claim for contribution for the money represented by the notes, and not a suit on the notes to enforce a liability against the maker or the indorser. The claimant, therefore, is at liberty to show if he can that while he is primarily liable on the notes, yet by an agreement between him and Colket they were jointly liable for the money raised on the notes. In this view, the other testimony introduced in the case becomes important and must be considered. The claimant having put in evidence the notes, showing, a primary liability on himself, it was incumbent upon him, in order to support his claim for contribution, to establish an agreement disclosing a joint liability of himself and Colket for the money raised .and remitted to Turner.

It is true that George Woodside testified that the parties agreed that the money should be raised upon their joint notes, but taking into consideration his whole testimony it is apparent that he did not mean that they were to be the joint makers of the notes, but that the names of both parties were to be on the notes, thereby creating a joint liability, not on the notes, but for the money raised for the company. This is manifestly the meaning of the language used by the witness in view of the fact that his testimony discloses an intention on the part of Colket and Woodside to join in furnishing the money.

We do not regard the testimony of Donaldson or the letters offered in evidence as sustaining the appellee’s contention. It is quite true that Donaldson says that on possibly a half-dozen different occasions he went to Woodside at Colket’s request and got a check to pay the discount on notes. But he further testifies: “ Q. To what notes did these visits refer, to what particular notes; do you remember? A. I think probably Huntingdon notes.” It appears that Colket and Woodside were engaged in other business requiring the discounting of notes and, therefore, it would be simply a guess whether or not under the witness’s answer the discount received by him from Woodside was paid on the notes which were given to raise money for the Mohave company. To be of assistance to the appellee, the testimony of Donaldson should have been-sufficiently definite to identify the notes upon which the discount was paid. The letters alluded to are equally uncertain and indefinite as to the notes referred to. In view of the fact that the two men were engaged.in other transactions, requiring the discounting of their paper, the subject-matter of the letters is as applicable to other notes as to the notes presented by the claimant to the auditing judge. One of the letters refers to a $4,800 note which certainly was not one of the original or renewal notes on which contribution is claimed. In fact, on the argument at bar, when the attention of counsel was directed to the discount referred to in the latter, it was understood that the notes spoken of in the letter were not those on which Woodside is claiming.

We do not regard the fact that the holdings of Woodside and Colket in the Mohave company were greatly unequal as controlling or of much weight in determining whether they were jointly interested in raising the money for continuing the development of the mining property. Colket had comparatively a small interest, but the extent of the inequality of the interests of the two men does not appear. It is apparent, however, that from the large sum expended in developing the property, the parties regarded it as very valuable, and therefore Colket might, with reason, have thought that “rather than let the enterprise fall through” and lose the money he had already invested in the venture, it would be better for him to assist in raising “the small sum” proposed and secure the full development of the property. While Colket’s interest in the corporation might have been comparatively small, yet it might have been about all he was worth and in his judgment, therefore, sufficient to justify the risk of a small additional sum to save it. At all events, the evidence discloses that Colket manifested more anxiety that the money should be raised than Woodside or any of the other stockholders of the Mohave company.

After a consideration of all the evidence in the case, we are satisfied that Colket and Woodside agreed jointly to raise the $25,000 for the Mohave company, and that the notes presented to the auditing judge and those of which they were the last renewals were given with the understanding and agreement that the parties assumed a joint liability thereon. It follows that the claim presented by Woodside for contribution by Colket’s estate should have been allowed by the auditing judge.

The decree of the court bplow is reversed with instructions to’ allow the Woodside claim.


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    Leister v. Philadelphia Rapid Transit Company, Appellant.

      Negligence — Street railway companies — Obstruction of highway — Fright of horses.

    In an action against a street railway company to recover damages for personal injuries, the defendant was charged with negligence in failing to preserve a free and unobstructed passage along a highway on which were laid its tracks. The plaintiff was a young girl riding in a pony carriage at the invitation of the driver. At the point of the accident, the defendant was shifting the position of one of its tracks and one-half the road was obstructed, but the west half of the highway was untouched, leaving a space sufficient for two vehicles to pass, or drive abreast. By a coincidence a trolley car and a cart happened to be at this point at the same time, so that the space was temporarily filled. The driver of the carriage in which the plaintiff was riding permitted his horses, a team of spirited ponies, to get beyond his control, so that when he approached the point in question, he was unable to stop them; but instead of running into the car or cart, they turned aside and ran into the excavation, upsetting the carriage, and seriously injuring the plaintiff and the -driver. The accident occurred in broad daylight, and the approach to the place was slightly up grade for a distance of several hundred feet. The evidence disclosed no reason for the failure of the driver to observe the condition of the highway or to control his team. He testified that his horses were not frightened, and declared that they were not running away. Held, that it was error to submit the case to the jury.
    Argued April 3, 1907.
    Appeal, No. 387, Jan. T., 1906, by defendant, from judgment of C. P. No. 5, Phila. Co., Deo. T., 1904, No. 284, on verdict for plaintiff in case of Edna S. Leister, by her next friend, Stewart S. Leister, v. Philadelphia Rapid Transit Company.
    Before Mitohell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.

      April 22, 1907:
    Trespass to recover damages for personal injuries. Before Staake, J.
    The circumstances of the accident are narrated in the opinion of the Supreme Court.

      Error assigned was in refusing binding instructions for defendant.

      Thomas Teaming, with him T. Truxbon Hare, for appellant.
    The momentary presence of a car and a dump cart upon the undisturbed half of a broad road, the rest of which is under repair, is not evidence of negligence.
    Nor is the momentary presence of a car and a dump cart upon a broad road, part of which has been excavated for repairs, the proximate cause of an uncontrollable team rushing into the excavation: Nichols v. Pittsfield Twp., 209 Pa. 240; Schaeffer v. Jackson Twp., 150 Pa. 145; Kieffer v. Hummelstown Borough, 151 Pa. 304.

      Edmund W. Kirby, with him Robert J. Bryon, for appellees.
    The case was for the jury; Nicholas v. Keeling, 21 Pa. Superior Ct. 181; Allegheny v. Zimmerman, 95 Pa. 287; Hedricks v. Schuylkill Twp., 16 Pa. Superior Ct. 508; Russell v. Westmoreland County, 26 Pa. Superior Ct. 425; Hookey v. Borough of Oakdale, 5 Pa. Superior Ct. 404; Mallory v. Griffey, 85 Pa. 275; Wagner v. Railway Co., 158 Pa. 419; Boone v. East Norwegian Twp., 192 Pa. 206; Herr v. Lebanon, 149 Pa. 222; Ewing v. North Versailles Twp., 146 Pa. 309; Burrell Twp. v. Uncapher, 117 Pa. 353; Pittston Borough v. Hart, 89 Pa. 389; Closser v. Washington Twp., 11 Pa. Superior Ct. 112; Davis v. Snyder Twp., 196 Pa. 273.
   Opinion by

Mr. Justice Potter,

The defendant company in this case was charged with negligence in failing to preserve a free and unobstructed passage along the public highway. The plaintiff was a young girl, riding in a pony carriage, at the invitation of the driver, along the Old York Road. At the point of the accident, the defendant was shifting the position of one of its tracks and one-half the road was obstructed, but the west half of the highway was untouched, leaving a space sufficient for two vehicles to pass, or drive abreast. By a coincidence a trolley car and a cart happened to be at this point at the same time, so that the space was temporarily filled. The driver of the carriage in which the plaintiff was riding, permitted his horses, a team of spirited ponies, to get beyond his control, so that when he approached the point in question, he was unable to stop them; but instead of running into the car or cart, they turned aside and ran into the excavation, upsetting the carriage, and seriously injuring the plaintiff and the driver. The accident occurred in broad daylight, and the approach to the place was slightly up grade for a distance of several hundred feet. The evidence discloses no reason whatever for the failure of the driver to observe the condition of the highway or to control his team. He testifies that his horses were not frightened, and declares that they were not running away. If his statement is true, his failure to stop in time to avoid the accident, is inexplicable. We can find nothing in the evidence to justify any charge of negligence against the defendant company. It had the right to shift its track, and the evidence is undisputed that while this was being done, one-half the road was left undisturbed for the use of the public. This was an ample space under all ordinary circumstances, and the fact that for the moment it happened to be occupied by a trolley car and a dump cart, is of no significance. Both the car and the cart were lawfully there at the time. Whether the car was in motion at the time does not appear; but if it had stopped, there is no suggestion that the delay was unduly prolonged. It is perfectly obvious that the driver of the carriage should have checked his team as he approached the spot, and if necessary, stopped until the car had passed, when the passageway would have been clear for him.

Instead of keeping his team well in hand, he permitted the horses to get beyond his control, and the result was that they dashed into the obstructed portion of the highway, with most serious consequences to himself and his guest. These results can only be imputed to the lack of skill or knowledge in the management of his team, upon the part of the driver. The responsibility for the accident cannot be justly or lawfully placed upon the defendant company.

If any vehicle driving ahead of this carriage had met, at the point in question, another one coming from the opposite direction, exactly the same result would have been produced in so far as constituting an obstruction in the high way was concerned. No one can be permitted to allow any vehicle in his charge upon the public highway, whether it be carriage, motor car or trolley car, to get beyond control, or to attain excessive speed, without being held responsible for the consequences. Neither can he shift upon another the responsibility for the result of his own carelessness or bad management.

There is nothing in the evidence which justified the submission of this case to the jury. The claim of the plaintiff is unsupported in so far as it charges the defendant with negligence. The trial judge should have assumed the responsibility, by instructing the jury, as requested by counsel for the defendant in the third and fourth points for charge.

The judgment is reversed and is here entered for the defendant.


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

      Negligence — Railroads—Passenger—Carrying passenger beyond station —Alighting from train — Nonsuit.
    The contract of a passenger with a railroad company, as evidenced, by his ticket, requires the company to carry him safely to his destination and to give him an opportunity to alight at the usual stopping place. It is the duty of the carrier to announce the name of the station as the train approaches it, and on the arrival of the train at the station to afford the passenger sufficient time and opportunity to alight in safety. The passenger’s contract does not terminate until he has alighted from the cars. At the end of the journey the relation of the carrier and passenger continues until the passenger has had a reasonable opportunity to depart from the train or car in safety.
    In an action against a railroad company by a passenger, to recover damages for personal injuries, it appeared that the plaintiff was a woman sixty-five years old. The train did not stop at the station of her destination, and as it was passing, she stepped to the door of the car in which she was riding, and told the brakeman that she desired to alight at that station. As she was talking with the brakeman, the conductor came running through the car and said that he had forgotten to notify the brakeman to stop the train at the station, and that the train would then stop which it did, about 100 yards beyond the station. It was dark, and plaintiff told the conductor and brakeman that she preferred being let off at the platform, but the brakeman said that he would assist her to alight there. Plaintiff testified that when she attempted to alight, she had to lean over to put her hands on the brakeman’s shoulder to get down, and that she had to jump four and one-half feet. She said that “in some manner my left limb twisted and caused a rupture for which I have suffered ever since.” The trial judge entered a nonsuit because there was no evidence to show how plaintiff “twisted herself, or what caused her to twist herself.” Held, to be error.
    Argued March. 27, 1907.
    Appeal, No. 378, Jan. T., 1906, by plaintiffs, from order of O. P. No. 1, Phila. Co., March T., 1904, No. 4,136, refusing to take-off nonsuit in case of Edward Brooks, Jr., Administrator of the Estate of George W. Hamilton, and Clara Amelia Hamilton, his wife, v. Philadelphia & Reading Railway Company.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Stewart JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Beitler, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit.

      Edward Brooks, Jr., with him Frederick J. Geiger and Edgar Dudley Fa/ries, for appellant.
    The case was for the jury : Englehaupt v. Erie R. R. Co., 209 Pa. 192; Case v. D., L. & W. R. R. Co., 191 Pa. 450; Phila. & Reading R. R. Co. v. Edelstein, 23 W. N. C. 342; Hartzig v. Lehigh Valley R. R. Co., 154 Pa. 364; Moulton v. Sanford, 51 Me. 127; Goodlander Mill Co. v. Standard Oil Co., 63 Fed. Repr. 400; Ry. Co. v. Kellogg, 94 U. S. 469.

      Gavm W. Hart, for appellee,
    cited: Deery v. R. R. Co., 163 Pa. 403; R. R. Co. v. Napheys, 90 Pa. 135; Rothchild v. R. R. Co., 163 Pa. 49.
    April 22, 1907:
   Opinion by

Mr. Justice Mestrezat,

On January 1, 1903, Clara Amelia Hamilton, one of the plaintiffs, was a passenger on the defendant company’s train leaving the Reading terminal in the city of Philadelphia about 6 o’clock in the evening. Her destination was Lafayette station at which the train was due about 6: 30 that evening. After the train left the station, the plaintiff surrendered her ticket to the conductor. The train did not stop at Lafayette station, and as it was passing, the plaintiff stepped to the door of the coach in which she was riding and told the brakeman that she desired to alight at that station. He replied that the train had not yet arrived at the station, which she insisted was not true. "While they were talking, the conductor came running through the -car and said that he had forgotten to notify the brakeman to stop the train at Lafayette station, and that the train would then stop which it did, about 100 yards beyond Lafayette station. It was then dark and plaintiff told the conductor and brakeman that she preferred being let off at the platform, but the brakeman said he would assist her to alight there. She then attempted to alight from the train and testified that “ when getting down in some manner my left limb twisted and caused a rupture for which I have suffered ever since.”

At the time of the accident, Mrs. Hamilton was sixty-five years of age, and was a large woman. The brakeman was a tall, stout man and stood on the ground and assisted Mrs. Hamilton to alight. In her testimony she describes the manner in which she left the coach as follows : Well his (brakeman’s) head I suppose was on a level with my knee about, and I had to lean over this way and put my hands on his shoulder to get down. It was all of four feet that I had to jump, four feet and one-half.”

This action was brought to recover damages for the injuries sustained by Mrs. Hamilton by reason of the alleged negligence of the defendant company. The plaintiff alleges that the servants of the carrier company were negligent in not stopping the train and permitting her to alight at Lafayette station, her destination, and in causing the train to' stop beyond the station and compelling her to alight at an improper and unsafe place, and .that her injuries were the direct result of such negligence. At the conclusion of the plaintiff’s testimony the learned trial judge, on motion of defendant’s counsel, entered a nonsuit; and the reason therefor was stated as follows: “ I will enter a nonsuit in this case. The plaintiff says in getting down she twisted herself somehow. There is no evidence whatever as to how she twisted herself or what caused her to twist herself.”

The contract of a passenger with a railroad company, as evidenced by his ticket, requires the company to carry him " safely to his destination and to give him an opportunity to alight at the usual stopping place. It is the duty of the carrier to announce the name of the station as the train approaches it, and on the arrival of the train at the station to afford the passenger sufficient -time and opportunity to alight in safety. The passenger’s contract does not terminate until he has alighted from the cars: St. Louis, etc., Ry. Co. v. Finley, 79 Tex. 85. At the end of the journey the relation of the carrier and passenger continues until the passenger has had a reasonable opportunity to depart from the train or car in safety: 6 Cyclopedia of Law and Procedure, 541. In the very recent (third) edition of Hutchinson on Carriers, sec. 1122, the duty of railway carriers of passengers is defined as follows : “ As has already been shown, railway carriers of passengers must provide safe platforms and other necessary facilities for access to and for alighting and egress from their trains by their passengers, and their duty in this regard has been indicated, as far as it can be done, from the adjudicated cases. Having provided such platforms, they are required to be careful to bring their coaches up to them in such manner that their passengers may be afforded the opportunity safely to alight upon them; and if the passenger be called upon to leave the coach before this has been done, or if he is reasonably induced to believe, from the circumstances or from the conduct of those in management of the train, that it has been halted in order that the passenger may there alight, and that no other or better opportunity will be given him to do so, and in undertaking to leave the conveyance, with due care and discretion, he receives an injury from the want of the proper facilities for doing so, or by reason of the dangerous character of the ground, the carrier will be held responsible for its negligence.” And in a subsequent section, 1126, it is said: “ Carriers must be equally careful not to pass beyond the alighting platform or station, and thus to require or make it necessary for the passenger to alight without returning to it.” In Englehaupt v. Erie Railroad Co., 209 Pa. 182, it is said: “ It is the duty of a carrier not only to exercise the strictest vigilance in receiving and conveying a passenger to his destination, but also to set him down safely at a station at the termination of his journey.” And in Case v. Delaware, Lackawanna & Western Railroad Co., 191 Pa. 450, where, as here, the train passed the station and the plaintiff alighted some distance beyond the platform, Chief Justice Stebbett, in reversing a judgment for the carrier company, said (p. 456): “ The duties of common carriers of passengers, under circumstances such as the evidence in this case tends to establish, are too plain to require either comment or citation of authorities. If the failure of the defendant to perform its duty to the plaintiff as a passenger, was the proximate cause of the undoubtedly serious injury which she sustained in attempting to reach the station platform,- she is entitled to recover adequate compensation in damages, unless she was guilty of negligence which contributed to her injuries.”

Prom these authorities defining the duty of a railway carrier towards its passengers, it clearly appears that it was the duty of the defendant company, under its contract with Mrs. Hamilton, not only to carry her from Philadelphia to Lafayette station, but to announce the name of the station as the train approached, and to stop at the station and give her sufficient time and opportunity to alight in safety. Having failed to perform this well-defined duty, the carrier was guilty of negligence and responsible for any injury which proximately resulted from that failure of duty. This was a nonsuit in the court below and the plaintiff is entitled to have the facts, as shown by her testimony, taken as verity together with all the reasonable inferences to be drawn therefrom. The station was not announced as the train approached, nor did the train stop at the station, the reason, presumably, being that the conductor, as he said, had forgotten to direct the brakeman to stop it. The plaintiff did not request to be let off at the place where the train stopped; on the contrary, she suggested to the conductor and the brakeman that she preferred to be put off at the platform. To this the brakeman said that he would assist her to alight at that place. Leaving the coach at the place where the train stopped, therefore, was not her voluntary act, but was done after at least an implied request and a refusal by the company’s servants to return the train to the station. So far as the evidence discloses, this was her only opportunity for alighting from the train so as to reach her destination. The train was halted there for the express purpose of permitting her to alight, and her attempt to do so, under the.circumstances disclosed by the uncontradicted testimony, involves no wrong or want of care on her part.

¥e are told, however, by the learned trial judge, that a recovery cannot be permitted because she has not shown “ how she twisted herself or what caused her to twist herself.” In the language of Mr. Justice Strong in Milwaukee, etc., Ry. Co. v. Kellogg, 94 U. S. 469, such refinements are too minute for rules of social conduct.” The plaintiff has described the succession of events from the time of the carrier’s negligent act in carrying her bejmnd the station until she was injured in alighting from the train. She described minutely, as will be observed, how and where she left the coach and how she was injured in doing.so. There was sufficient-evidence to warrant the jury in finding that the place the carrier’s servants required her to alight was unsafe and dangerous. There was no platform or other appliances there to enable a passenger to alight safely. She placed her hands upon the shoulders of the brakeman and then stepped or jumped to the ground, which was a distance of from four to four and one-half feet. This act, it is shown, resulted in her serious injury, described by the physician as inguinal rupture. The physician testified that “ anything that produced an extraordinary strain on the contents of the abdomen or weakens the walls of it or distends it will produce rupture; ” and that her condition could undoubtedly have been produced by such an accident as she described on the witness stand. The twist of the limb occurred while she was alighting from the train, and if that caused the rupture, then the fact that the limb was twisted -was sufficient without any further description of how it was done. It is not alleged that she did not use care in stepping from the car, or that her limb was twisted by the failure to observe care in the act of stepping from the coach. She says when getting down, in some manner my limb twisted and caused a rupture.” ~W e think this was sufficient, in view” of the fact that she detailed the manner of her leaving the coach. Common experience teaches that, under such circumstances, it is often difficult to describe in greater detail what produced the results of the accident. In this case the testimony, if believed, shows that the accident to the plaintiff, caused by being required to alight from the train at an improper place, resulted in rupture, and we think the learned court was clearly in error in requiring, as a condition precedent to a recovery, a minute description of each move and twist of the plaintiff’s body resulting in her injury.

The assignments of error are sustained, and the judgment is reversed and a procedendo is awarded.