author: Me. Justice Mesteezat,

text:
    Mullen v. Chester Traction Co., Appellant.

      Negligence — Street railways — Tickets—Independent lines.

    Where a street railway company prints and issues tickets in its own name, and having thereon the words “good for one five cent fare,” and supplies such tickets to two other independent street railway companies under an understanding that the tickets when sold should be good as fare on any of the three railways, a person who purchases a ticket from a conductor of one of the independent lines, and is injured while riding as a passenger on such line in a collision between two of its ears, may maintain an action against the company issuing the tickets to recover damages for his injuries; and in such a case it is immaterial that the issuing company received no benefit from the sale of the ticket; and it is also immaterial, as far as the plaintiff is concerned, as to what agreement there was between the company issuing the ticket, and the company operating the line where the accident happened. The proceeds of the tickets sold each day were turned over at the end of the day to the issuing company, and therefore, the conductors of the independent lines were the agents of the issuing company in the sale of the tickets.
    Argued Feb. 14, 1912.
    Appeal No. 97, Jan. T., 1911, by defendant from judgment of C. P. Delaware Co., Dec. T., 1909, No. 112, on verdict for plaintiff in case of Owen J Mullen v. Chester Traction Company.
    Before Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Johnson, P. J.
    The facts are stated in the opinion of the Supreme Court.
    At the trial the jury returned a verdict for $8,700, on which, judgment was entered for $6,000, all above that sum having been remitted.

      Error assigned amongst others was in refusing binding instructions for defendant.

      J. B. Hannum, for appellant.
    We contend that there was no contract between the Chester Traction Company and the plaintiff for safe transportation over any road but its own, and this only because of the ticket. It can make no difference to the plaintiff what arrangements existed between the Chester Traction Company and the other companies as to the acceptance of the ticket as fare. He simply paid his fare with a ticket of the Chester Traction Company instead of with money, and the Chester Traction Company would not be liable for the negligence of either of the other companies, this being an action on a special contract: Hood v. New York & New Haven R. R. Co., 22 Conn. 1; Knight v. Portland, etc., R. R. Co., 56 Me. 234; Hartan v. R. R. Co., 114 Mass. 44.

      Augustus T. Ashton, with him W. Roger Fronefield, for appellee.
    The plaintiff was entitled to recover because the defendant entered into a contract with him, whereby the defendant agreed that he should be safely carried: Peters v. Rylands, 20 Pa. 497; Weed v. R. R. Co., 19 Wendell (N. Y.) 534; Barkman v. R. R. Co., 89 Fed. Repr. 453.
    There was nothing in the contract to apprise him that the journey was to be made by another carrier: Prethow v. W. J. & S. R. R. Co., 214 Pa. 112; Carter v. Peck, 4 Sneed (Tenn.) 203.
    March 18, 1912:
   Opinion by

Me. Justice Mesteezat,

The Southwestern Street Eailway Company owns and operates a street railway running in a southerly direction from Philadelphia to Bow creek, Delaware county. At this point the line connects with that of the Philadelphia and Chester Railway Company which operates a street railway from that point to Third street in the city of Chester. The Chester Traction Company, the defendant in this case, operates a system of street railways in the city of Chester and other parts of Delaware county. The lines of the three companies are physically connected so that a car can be run from the starting point of the Southwestern in Philadelphia to the car barn of the defendant company in the city of Chester.

All the stock of the three companies is owned or controlled by the Interstate Railways Company, a New Jersey corporation. They have the same general officers but each company operates its oAvn road. They have separate bank accounts in which are kept the moneys belonging to each company. Each company has separate pay rolls and pays its own employees. The Philadelphia and Chester Railway Company with its own money pays the Southwestern Street Railway Company which owns the cars operated by the former company for the use of the cars. It pays both the Southwestern Street Railway Company and the Chester Traction Company for the power furnished by them to it. It also pays the Chester Traction Company for all repairs and maintenance of the cars which are used on its road, and pays the wages of the motormen and conductors operating the Southwestern Company’s cars.

Passenger tickets for transportation over the three roads were issued by the Chester Traction Company in the following form :

“Chester Traction Company
Good for one five cent fare.
P. 207216 T. W. Grooket, Jr., Treasurer.”

They were issued in packages of six tickets and sold for twenty-five cents. Each of the conductors on the several lines obtained a supply of tickets on beginning his day’s work, giving his receipt for them, and at the end of the day he turned over all money received from the sale of the tickets and accounted for the unsold tickets. The money thus received by the Chester Traction Company was deposited in its account, and at the end of each month it paid to each of the other two companies the actual amount of money received for tickets used on their respective roads. The only profit which the Chester Traction Company derived from the tickets used on the other two roads consisted in the use of these moneys during the month, and in the fact that so far as the tickets sold were never used by the purchasers the proceeds were retained by the Chester Traction Company.

On September 22,1908, the plaintiff purchased a package of six tickets for twenty-five cents from a conductor of the Philadelphia and Chester Railway Company. He used two of them on that day in going to his home in Philadelphia, one on the Philadelphia and Chester Railway and one on the Southwestern Street Railway. On the following day he boarded a car of the Southwestern Street Railway Company in Philadelphia to go to his work at Eddystone, Pennsylvania, which is on the Philadelphia and Chester Railway. By arrangement between that company and the Philadelphia and Chester Railway Company the car which he entered ran through to his destination at Eddystone. He gave the conductor of the Southwestern Street Railway Company two of the tickets. When the car in which he was riding got beyond the Southwestern road and while it was on the road of the Philadelphia and Chester Railway Company, it collided with a car of the latter company and the plaintiff was injured. He brought this action against the Chester Traction Company, which issued the ticket on which he was riding, to recover damages for the injuries he sustained by reason of “the carelessness and negligence on the part of the servants, agents, workmen or employes, who had been employed by the defendant in the execution of their contract for transportation with the plaintiff, and who were in charge of the car upon which the plaintiff was riding as a passenger at the time of the aforesaid collision, resulting in the injuries above described.” The trial resulted in a verdict and judgment for the plaintiff, and the defendant company has taken this appeal.

The appellant company contends that there was no contract between it and the plaintiff because: (a) the ticket was not sold to the plaintiff by the defendant, [b) the defendant did not operate the Philadelphia and Chester Railway on which the accident occurred or the Southwestern Street Railway and had no control over the operation of either, (c) that while the defendant issued the tickets purchased and used by the plaintiff, it received no benefit from their sale and use.

The position of the appellee is that the defendant entered into a contract with him whereby it agreed to carry him safely to his destination; that it was bound to execute this contract and the servants of the other two companies became, in the performance of the contract, the servants of the defendant; that the proceeds of lost and unused tickets and the use of the money received from the sale of tickets for the time it was retained by the defendant were a pecuniary benefit resulting from the sale of the tickets; that it is immaterial whether the defendant received any benefit from the sale of the tickets; and that there was nothing in the contract to notify him ana he did not know that the three street car lines were separately operated or were not operated by the defendant company.

The learned court below instructed the jury “that if the Chester Traction Company (the defendant) did know when they delivered the tickets to this conductor that he would use them for passage over either the Southwestern or the Philadelphia and Chester Railway, that they are responsible for any negligent act concerning the carrying of this passenger j.ust as though it had happened upon their own line.” This is the subject of the second assignment, and raises the important and controlling question in the case. In finding for the plaintiff, the jury found that the defendant company had such knowledge, and therefore the company sold the tickets to be used not only on its own line but on the line on which the plaintiff while a passenger was injured. The instruction complained of was not erroneous under the undisputed facts in the case. The ticket with which the plaintiff paid Ms fare was issued by the defendant company, purchased by the plaintiff, and, as disclosed on its face, was “good for one five cent fare.” It was accepted by the conductor as a fare or compensation for carrying the plaintiff to Ms destination. Under the finding of the jury, the defendant issued the ticket to be used on the Philadelphia and Chester Railway, and thereby contracted with the plaintiff that it would carry him over that route. It is clear, we think, that the defendant’s liability for the plaintiff’s injuries is the same as though the ticket was being used and the plaintiff was being carried over a railway owned by the defendant company. The plaintiff contracted with the defendant to carry him over the railway on which he was traveling at the time he was injured and, regardless of the real ownership of the railway, it must be considered, as between the plaintiff and the defendant company, the railway of the defendant. By the issuance and sale of the tickets, the defendant held itself out to the public that it had the means of transportation and would, for the specified fare, carry passengers over this route. It is immaterial to the plaintiff as to what agreement the defendant had with the Philadelphia and Chester Railway Company to carry passengers. It is not alleged that the plaintiff knew of the existence of any such agreement, and hence its terms cannot relieve the defendant from the performance of its duty as a carrier under its contract with the plaintiff. In contracting for Ms transportation, the plaintiff knew the defendant and no other company, and relied solely on the defendant to carry him as required by its ticket. When he entered the car and the conductor accepted the ticket, the plaintiff became the passenger of the defendant company, and it was responsible for Ms safe transportation over the railway to the destination to which passengers were carried for the stipulated fare. He is not concerned with the ultimate responsibility for the negligence resulting in Ms injuries, and need not look beyond the party obligating itself to perform the duties of a carrier in transporting Mm to his destination.

There is no merit in the contention that the ticket was not sold to the plaintiff by the defendant. The tickets purchased by the plaintiff were issued by the defendant company and in its name, were given to the conductors of the other two lines to sell, and at the close of each day they turned over the proceeds of the sales and the unsold tickets to the defendant company. The conductors were, therefore, the agents of the defendant for selling the tickets, and the sales must be regarded as being made by the defendant. There is no evidence that the conductors acted for themselves or their companies in selling the tickets; on the contrary, the undisputed facts show that they acted as the agents of the defendant in making the sales.

We regard it as immaterial whether the defendant company received any benefit from the sales of the tickets. If no benefit accrued to it from the sales, it is a matter with which the interested parties alone are concerned, and with which the purchasers of tickets have nothing to do. It could hardly be expected that the holder of a street railway ticket would, even at the risk of losing protection against the negligence of the carrier, investigate and determine whether the carrier selling the ticket and agreeing to transport him, retained all or any part of the consideration for the service to be performed. No such duty is imposed on the passenger. Having paid full consideration to the company accepting his money and agreeing to carry him, the holder of the ticket is not affected by the ultimate destination of the passage money. It may be suggested, however, that it is not at all clear that the defendant company did not receive substantial benefits from the sales of the tickets. The conductors returned to the defendant each day the money received by them for the tickets, and it was retained by the defendant until the end of the month during which time the company had the use of it. In addition to this, the defendant retained the proceeds of the sales of lost and unused tickets.

The ticket sold to the plaintiff by the defendant was for a continuous passage over the line on which it was used. It was not a coupon ticket entitling the holder to ride over several separate and different railways, but each ticket was good for one fare over any one road on which the passenger desired to travel. The defendant company in selling the ticket was not acting as the agent of any other railway company but for itself, and the road on which it was used was, pro hac vice, the road of the defendant company for the transportation of the holder of the ticket. If, as the jury found, the plaintiff was injured by the negligence of the carrier transporting him on a ticket issued by the defendant company and without any fault on his part, he is entitled, under the facts of the case, to recover in this action.

The judgment is affirmed.


source: Caselaw Access Project

author: Pee Cueiam,

license: Public Domain

text:
    Union Trust Company of New York v. Gilpin, Appellant.

      Payment — Mistalce—Will—V erdict.

    1. Where a testator leaves to a trust company called “United States Trust Company” two sums of $10,000 each to be held in trust for two sisters for life with remainder to the survivor in the event that the other die without issue, and by the second paragraph of his will leaves two sums of $10,000 each to a trust company called the “Union Trust Company” in trust for the same two sisters, but with remainder over to other parties in the event of their dying without issue, and after the death of one of the sisters the -Union Trust company through a mistake in reading the will paid the sum of $10,000 to the surviving sister instead of the parties entitled to it under the second paragraph, such sum may be recovered back by the Union Trust Company from the sister to whom it was mistakenly paid.
    2. In an action to recover such money the court left two questions to the jury, (1) was the payment made by mistake on the part of plaintiff’s officers, and (2) was it caused by inadvertence in reading the first paragraph of the will as the paragraph under which plaintiff was acting as trustee; and was that due to the similarity of the names mentioned in the will. The first question was answered “yes,” the second “no.” Thereupon a third question was submitted, viz: “State what was the character of the mistake?” This was answered “Carelessness of the officers of the Union Trust Company.” The court asked the jury in what particular the officers had been careless, and the foreman said, “in reading the will.” These words were then added to the answer. The court then directed a verdict for plaintiff. Held, that the court committed no erroreither in propounding the questions to the jury, or in directing a verdict for the plaintiff.
    Argued Feb. 19, 1912.
    Appeal No. 235, Jan. T., 1911, by defendant from judgment of C. P. Lackawanna Co., Jan. T., 1908, No. 324, on verdict for plaintiff in case of The Union Trust Company of New York, Trustee, v. Mary Helen Gilpin.
    Before Fell, C. J., Brown, Potter, Stewart and Moschzisker, JJ.
    Affirmed.

      Assumpsit to recover back money paid under a mistake of fact. Before Newcomb, J.
    At the trial the court gave binding instructions for plaintiff.
    The facts appear by the opinion of Newcomb, J., on motion to amend the verdict, which was as follows:
    This suit was brought to recover money paid to defendant by mistake.
    The payment was made in October, 1902, and arose out of the management of a trust fund which had come to plaintiff’s hands in 1893, under the second paragraph of the will of Robert McKim. In round figures the fund was $100,000.00, of which two equal one-tenth parts were held, one for the use of defendant and the other for that of her sister, Mrs. Hart, but each during life. At their death the principal in each case went to their respective issue, if any; otherwise to the executors of the will. Mrs. Hart’s maiden name was Angelica Church, and she was so named in the will.
    Under the provisions of the first paragraph of the will another $100,000.00 came to the hands of the United States Trust Co., also of New York. Inter alia sums of $10,000.00 each were by it held for these sisters for life with remainder in each case to the survivor in the event that the other died without issue.
    In the summer of 1902 Mrs. Hart died leaving no issue. In October plaintiff was advised of the fact by letter of Mr. Gilpin suggesting that he understood his wife thereby succeeded to the fund held for her sister’s use. To this there was a prompt reply assenting to that understanding with a formal receipt enclosed for Mrs. Gilpin’s signature in order to close the account.
    Hence, the evidence of payment is a written instrument duly executed and delivered to plaintiff. Mrs. Gilpin thus acknowledged the receipt of $10,000.00, together with some accrued income, being “the one-tenth part of the trust fund mentioned in said first paragraph of said will heretofore held by Union Trust Co. for Angelica Church,” etc. There was other reference to this particular fund and paragraph “in pursuance of which,” it was set forth, defendant “had become entitled” to the principal on the death of her sister; and in consideration of the payment, it proceeded to say, plaintiff was discharged from its liability on account of that fund.
    Other than in the matter of Mrs. Hart’s death, these assumptions of fact, forming the consideration of the payment, were radically erroneous. It was, therefore, undisputed and indisputable that the money was paid by mistake.
    The fund which the parties had in mind had never been in plaintiff’s hands. With the trust described in the voucher the plaintiff had nothing whatever to do. That was the fund in the hands of the other company. The two trusts were quite as distinct and independent of each other as two separate paragraphs of a written instrument could make them. The death of her sister in no way affected the relations of Mrs. Gilpin with the plaintiff Trust Co. The plaintiff took nothing by the release. The liability which it purported to discharge had never existed. All this is apparent upon a mere reading of the will, if read with care and attention to what it says. There is nothing ambiguous about either paragraph, calling for anything more than careful reading. So that upon examination of the two instruments, the bequest on the one hand and the receipt on the other, the inference would seem to be irresistible that the payment was the result of mistake on part of some officer of the Trust Company in failing to note the identity of the trustee named in the first paragraph on the occasion of being advised of Mrs. Hart’s death and the defendant’s understanding in the premises. There is nothing outside of these writings to throw any light on the nature and character of the mistake except this correspondence, and.nothing in that to weaken the inference arising from the terms of the receipt. There was no attempt to impair plaintiff’s equity unless it be in the offer to prove that defendant had in the meantime spent the money so that repayment would now be a hardship; and that is believed to be immaterial for reasons to be mentioned below.
    From the inception of the suit the close question has seemed to be whether it wasn’t a case for binding instructions for plaintiff. The court being divided on the question, the defendant was given the benefit of the doubt and allowed to go to the jury. 6. (But, instead of a general submission, two specific questions were first submitted to the jury subject to further instruction upon return of their answers. These were as follows: “(1) Was the payment of October 22, 1902, made by mistake on part of plaintiff’s officers? (2) Was it caused by inadvertence in reading the first paragraph of the will as the paragraph under which plaintiff was acting as trustee; and was that due to the similarity of the names of the two trustees mentioned in the will?” The first was answered, “Yes;” the second, “No.” Thereupon a third question was submitted, viz: “State what was the character of the mistake?” This was returned with the somewhat indefinite answer: “Carelessness of the officers of the Union Trust Co. of New York.” Their attention being called to the necessity of stating in what particular the officers had been careless, it was disclosed that what was meant was carelessness in reading the will; and thereupon, by hand of their foreman, the jury were permitted to complete the answer in open court. In order to guard against possible misunderstanding the answer as so completed was then first read aloud to them, not by the clerk, but by the court, and they were asked if that was correct — as appears by the transcript —to which the foreman replied “yes,” and the others nodded assent in the usual way. Upon that a verdict was directed for plaintiff, for the reasons then stated and which in my judgment made it inevitable.)
    These circumstances are referred to because the learned counsel seeks to support the present motion, in part, by the foreman’s testimony. The effort is to reform the finding of the jury by substituting the term “construing” in place of “reading” the will, thus characterizing the mistake as one of law rather than of fact, and so to defeat the action.
    Accordingly the motion is to amend the verdict to one in favor of defendant. Aside from the foreman’s version of what was in the minds of the jurors, the motion is based on the answer to the second question. The point made is that this negatived the specific averment upon which plaintiff’s case turned, and was therefore a finality. The contention is believed to be unsound. If for the jury at all the case was such as made it important to have the benefit of their unbiased judgment as to the nature and character of the mistake. That wasn’t accomplished by the first two answers. They left the matter just where it was at the outset. The second question was probably somewhat inapt by reason of its having two branches. I can think of no good reason why the courts in attempting to administer the law through trial by jury may not submit any question appropriate to the issue of fact. That the final question here was inappropriate to that purpose has not been suggested. The answer affirms the substance of plaintiff’s allegation. As such, it warranted the verdict as directed, unless recovery is barred by the fact of plaintiff’s negligence; or the finding be open to revision on the deposition of a juror; and this, for no better reason than that in the opinion of the witness “no person can read a will without putting a construction on it.” This is manifestly incompetent and merits no consideration: Smalley v. Morris, 157 Pa. 349. Citations could be multiplied if the occasion called for it. For the sake of discussion it may be conceded that the jury would have held the Trust Co. to the loss of the money if at liberty to do so. They were called upon, however, only to decide the facts, unmoved by sympathy or prejudice for or against either party, regardless of the consequences. Undoubtedly their conclusion was correct. No one could read the will attentively without being forcibly impressed with the fact that a blunder had been made. That would be quite as apparent to a jury of average understanding as to a lawyer. The final answer here was not only consistent with the evidence, but it is not apparent how there could have been any escape from it.
    Turning now to the effect of plaintiff’s negligence, I take it to be well settled that it will only bar recovery where defendant has irrevocably changed his position before demand made. 2 Street’s Found. Leg. Liab. 213; Kelly v. Solari, 9 M. & W. 54; Keener on Quasi-Contracts, 70 et seq; Appleton Bank v. McGilvary, 70 Mass. 518; G-irard Trust Co. v. Harrington, 23 Pa. Super. Ct. 615; Lawrence v. Bank, 54 N. Y. 432. It has been sometimes said that plaintiff’s laches will preclude recovery unless defendant can be put in statu quo. And it is upon this principle that it was sought to be proven here that defendant had spent the money. There is neither reason nor authority, however, to support the theory that the mere fact of the money having been spent amounts to an alteration of defendant’s legal position. It is enough to say that if it were so, the instances in which the right to recover has been affirmed would have been much less frequent.
    Essentially the claim here is founded on a transaction in which there was a total failure of consideration, due to a mutual misunderstanding as to the existence of the subject matter. In such case where the plaintiff’s equity is complete there can be no doubt of his right to recover: 2 Street’s Found. Leg. Liab. 211; Martin v. Sitwell, 1 Show. K. B. 156; McDonald v. Lynch, 59 Mo. 350. And it has been so held whether the mistake be one of law or fact: Champlin v. Laytin, 6 Paige 189. In principle and analogy it is not unlike a suit for breach of warranty of title. So, in a case differing from this in no essential particular, where by mistake a legacy had been paid to one not entitled under the will it was held that the money could be recovered whether the mistake was either of fact or law: Northrop v. Graves, 19 Conn. 548. Speaking by Chief Justice Church, the court said: “We mean distinctly to assert that where money is paid by one under a mistake of his rights and his duty, and which he was under no legal or moral obligation to pay, and which the recipient has no right in good conscience to retain, it may be recovered back in an action of indebitatus assumpsit whether such mistake be one of fact or law; and this we insist may be done both upon principle of Christian morals and the common law.”
    The case affords a good illustration of the modern tendency of the courts to limit the earlier doctrine which denied in general the right to recover where money had been paid under a mistake of law.
    We are not called upon to decide whether the present case falls outside the general rule. 6. (It was tried on the theory of mistake of fact only. Assuming it to have been for the jury, it is believed the facts, so far as in dispute, were well found in the affirmative, and that the verdict was regular. This is decisive against the motion, and the rule to amend is discharged.)

      Errors assigned, among others, was (1, 2) in instructing the jury as to answers to questions; (3) in giving binding instructions for plaintiff and (6) in refusing to amend the verdict.

      Samuel B. Price and Cole B. Price, for appellant.
    It was error in the court to submit the first and third questions to the jury: Morse v. Morse, 25 Ind. 156; Crane v. Reeder, 25 Mich. 303; Balch v. Grand Rapids &c R. R. Co., 78 Mich. 654 (44 N. W. Repr. 151).
    The submission of the third question by the court to the jury, after their answers to the first two had been returned, was error.

      To suggest or dictate to the jurors the answers to particular questions of fact submitted to them for findings thereon, is error; and it is also error when the special findings of fact are returned by the jury, for the court to change materially the purport of such findings: Usher v. Hiatt, 18 Kan. 195; Ryan v. Rockford Ins. Co., 77 Wis. 611 (46 N. W. Repr. 885).
    The verdict should have been amended to read for defendant: Cohn v. Scheuer, 115 Pa. 178; Murland v. English, 214 Pa. 325; Clouser v. Patterson, 122 Pa. 372; Com. v. Chathams, 50 Pa. 181; Standard Sewing Machine Co. v. Ins. Co., 201 Pa. 645.
    The question to be decided in this case was for the jury: Primm v. Haren, 27 Mo. 205; Reynolds v. Richards, 14 Pa. 205; State v. Patterson, 68 Maine 473; Wilson v. Board of Education, 63 Mo. 137.
    There is no sufficient evidence to support a judgment for plaintiff: Ward v. McCue, 31 Pitts. Leg. Journ. 160.
    It is settled law that one who voluntarily pays money with full knowledge or means of knowledge of all the facts, without any fraud having been practiced upon him, cannot recover it back by reason of the payment having been made in ignorance of the law: Gould v. McFall, 118 Pa. 455; Real Estate Savings Institution v. Lindner, 74 Pa. 371; Irvine v. Hanlin, 10 S. & R. 219; Espy v. Allison, 9 Watts 462; Boas v. Updegrove, 5 Pa. 516; During’s App., 13 Pa. 224; Natcher v. Natcher, 47 Pa. 496; Deysher v. Triebel, 64 Pa. 383; Union Ins. Co. v. Allegheny, 101 Pa. 250.

      W. W. Watson, W. S. Diehl and Albert L. Watson, for appellee.
    The fact that the person making the payment has the means of knowledge at hand and overlooks the same by an inadvertence, is immaterial if the party receiving the same is not entitled to it: Girard Trust Co. v. Harrington, 23 Pa. Super. Ct. 615; Dotterer v. Scott, 29 Pa. Super. Ct. 553; Reed v. Horn, 143 Pa. 323; Lawrence v. American Nat. Bank, 54 N. Y. 432; White v. Continental Nat. Bank, 64 N. Y. 316; Kingston Bank v. Eltinge, 40 N. Y. 391.
    It is well settled law in this state and elsewhere that the testimony of a juror cannot be received to change the verdict rendered by a jury and recorded:. Smalley v. Morris, 157 Pa. 349; Cluggage v. Swan, 4 Binn. 150; Hutchinson v. Sandt, 4 Rawle 234.
    March 18, 1912:
   Pee Cueiam,

The judgment is affirmed on the opinion of Judge Newcomb.


author: Mr. Justice Stewart,

text:
    Harwood, v. Harwood, Appellant.

      Husband and wife — Confession of judgment — Act of June 8, 1898, sec. 8, P. L. 8U-

    The provision contained in see. 3 of the Act of June 8, 1893, P. L. 344-, that a married woman “may not sue her husband,” has • regard to adverse proceedings where the party complained against by legal process is brought into a court of justice to answer. It has no application to a judgment entered by a wife against her husband under a warrant of attorney to confess judgment.
    Argued Feb. 19, 1912.
    Appeal, No. 236, Jan. T., 1911, by defendant from order of C. P. Lackawanna Co., June 1'., 1910, No. 426, discharging rule to open or strike off judgment, in case of Jennie Harwood v. A. F. Harwood.
    Before Fell, C. J., Beown, Pottee, Stewaet and Moschziskek, JJ.
    Affirmed.
    Rule to open or strike off judgment.
    From the record it appeared that on May 26, 1910, Jennie Harwood entered a judgment against her husband A. F. Harwood in the sum of $3,000, by virtue of a warrant of attorney contained in a judgment note. At the time of the entering of the judgment the husband and wife were residing together. Subsequently she separated from him alleging cruel and barbarous treatment.
    The court discharged the rule to open or strike off judgment.

      Error assigned was the order of the court.

      James B. Murrin and William J. Fitzgerald, with them Joseph O’Brien and John P. Kelly, for appellant.
    There is no question but that Mrs. Harwood cannot sue her husband on the note in question unless it be by virtue of the warrant of attorney contained therein: Gillan v. West, 232 Pa. 74; nor does the act of 1893 destroy the legal unity of husband and wife: Meyer’s Est., 232 Pa. 89. It appears to us unreasonable to maintain that, while the wife cannot have a summons in assumpsit on the note in question, she may still have a judgment and execution thereon against the efforts of her husband to contest the same: Ulshafer v. Stewart, 71 Pa. 170.
    It is well settled that a judgment entered under a power contained in an instrument is a judicial act and has the same effect as a judgment confessed by an attorney or given in open court. The entry of an amicable action and confession of judgment has the same effect: Spragg v. Shriver, 25 Pa. 282; St. Bartholomew’s Church v. Wood, 61 Pa. 96.

      Samuel B. Price, with him John F. Reynolds and Cole B. Price, for appellee.
    A married woman may take a judgment note and enter it against her husband, issue execution and collect. The proceeding is not adversary. It is not a suit contemplated by the act of 1893: Williams’ App., 47 Pa. 307; Rose v. Latshaw, 90 Pa. 238; Lahr’s App., 90 Pa. 507; Kincade v. Cunningham, 118 Pa. 501.
    The act of 1893 has in no wise restricted the rights of a married woman as they existed before that act. A judgment may be entered or bill in equity filed to protect the wife’s property rights: Nuding v. Urich, 169 Pa. 289; Kuhn v. Ogilvie, 178 Pa. 303; Heckman v. Heckman, 215 Pa. 203.
    March 18, 1912:
   Opinion by

Mr. Justice Stewart,

The parties to this proceeding are husband and wife. The appeal is by the former who seeks to have declared invalid a judgment entered against him and in favor of his wife, upon confession. The integrity of the transaction is in no way challenged; the sole ground on which the claim is made is that the entering of the judgment contravenes the provision contained in Sec. 3 of the Act of June 8,1893, P. L. 344, which declares that a married woman “may not sue her husband,” except under conditions which admittedly are not here present, and with which we have therefore no concern. The one question before us is, was the entering of this judgment a suit against the husband? Rules of lexicology afford no assistance here. It is quite possible to so broaden the meaning of the word “sue” as to make it include the entering of an amicable or confessed judgment without doing violence to its etymology. But to the common mind legal incapacity to sue can have but one meaning, and that is, that the person resting under its disability is denied legal process to bring his adversary into a court of justice, there to answer the complaint or demand that is brought against him. It was said by Tilghman, C. J., in Commonwealth v. Philadelphia County Commissioners, 1 S. & R. 382, that it is not always by grammatical criticism we hit the meaning of an act of assembly or any other writing; that the easiest and most popular construction is generally the truest. It is so in the present case. In giving to the words “may not sue” their popular meaning as above indicated, we reach a result that harmonizes with and reflects the general purpose of the act in which they are used only by way of exception. The act is an enabling one, unfettering the married woman from common law disability and permitting her to sue and be sued as though she was unmarried, with no other qualification than that she may not sue her husband. This qualification was simply a retention of so much of the disability imposed by the common law as was thought necessary to protect the peace of the domestic relation; it created no new restriction, but left the married woman with respect to her rights, where the husband was involved, just where she was before. Prior to the passage of the act a judgment confessed by |the husband in favor of his wife was quite as valid as one confessed to a stranger, and for its enforcement like proceedings were available to her. This was definitely settled in Rose v. Latshaw, 90 Pa. 238. In the opinion in that case Mr. Justice Trunkey says: “It having been established that a man’s conveyances and gifts to his wife are good between themselves, and against all the world, when not fraudulent, it directly followed that a judgment to her, confessed or suffered by him, is of like force; and it would seem inevitable that execution could be lawfully issued upon that judgment. * * * Execution of a judgment, voluntarily suffered by the husband, is no more adversary than was the entry of judgment. In one sense, both are adversary; where either is with his consent it is not adverse in the sense which the law forbids, for it does not disturb domestic relations.” It thus became apparent that to give other meaning to the prohibition in the act against suing the husband, than that which the words used in their popular sense indicate, would be to create a disability where none existed before. Nothing could have been further from the legislative intent. The conclusion is irresistible that when the legislature declared that a married woman “may not sue her husband,” the prohibition had regard to adverse proceedings where the party complained against, by legal process is brought into a court of justice to answer. A voluntary, confessed judgment is not adverse, and therefore not within the prohibition. The court was entirely correct in refusing to strike off the judgment in this case.

The assignments of error are overruled, and the judgment is affirmed.


author: Per Curiam,

text:
    Grant, Appellant, v. Dickson City Borough.

      Negligence■ — Boroughs—Defective bridge — Acceptance of street by borough■ — Non-suit.
    1. In an action against a borough to recover damages for personal injuries suffered by falling through a bridge built by a land company and located on a street on the company’s plan of lots, a non-suit is properly entered where there is no proof of the acceptance of the street by the borough.
    2. In such a case the mere fact that work had been done on the street by the street commissioner before the accident, is immaterial, where there is nothing to show that the commissioner was acting in his official capacity, or that this action was at the instance or with the knowledge of the borough council, or that there had been a prior authorization or subsequent ratification of it.
    Argued Feb. 19,1912.
    Appeal, No. 246, Jan. T., 1911, by plaintiffs from order of C. P. Lackawanna Co., May T., 1907, No. 436, refusing to strike off non-suit in case of Kate Grant et al. v. Dickson City Borough.
    Before Fell, O. J., Brown, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before O’Neil, J.
    At the trial the court entered a compulsory non-suit which it subsequently refused to take off.

      Error assigned was in refusing to take off non-suit.

      A. A. Vosburg, with him J. F. Murphy, for appellants,
    cited: Weida v. Hanover Twp. 30 Pa. Super. Ct. 424; Com. v. Llewellyn, 14 Pa. Super. Ct. 214; Com. v. Moorehead, 118 Pa. 344; Kennedy v. Williamsport, 11 Pa. Super. Ct. 91.

      Ralph W. Rymer and O'Brien & Kelly, for appellee,
    cited: Arnold v. Cornman, 50 Pa. 361; Root v. Com., 98 Pa. 170; Pearl Street, 111 Pa. 565; Pittsburgh Alley, 104 Pa. 622; Com. v. Shoemaker, 14 Pa. Super. Ct. 194.
    March 18, 1912:
   Per Curiam,

Kate Grant, one of the plaintiffs, was injured by falling through a bridge built by a land company and located on a street on its plan of lots. A non-suit was entered because there was no proof of the acceptance of the street by the borough. The street was laid out by the land company some four or five years before the accident. Lots were first sold on it fourteen months before and a plan of the tract was recorded six months before. The street was a narrow passage way first used by the company for convenience in carrying on its operations and later by the purchasers of lots in receiving supplies and by pedestrians as a short cut to a street of the borough. The borough council had never taken any action in relation to the street and there was no general and long continued public use from which an acceptance of the street could be implied. There was an offer of proof, rejected by the court, that work had been done on the street by the street commissioner before the accident. This offer was carefully worded and was limited to proof of the bare fact that the commissioner had done work on the street. There was no offer to show that the commissioner was acting in his official capacity or that his action was at the instance or with the knowledge of the borough council or that there had been a prior authorization or subsequent ratification of it. Proof to the full measure of the offer would not have warranted an inference of acceptance of the street.

The judgment is affirmed.


text:
    Lloyd v. Fretz, Appellant.

      Will — Power of appointment — Recital of Power — Act of June k, 1879, P. L. 88.

    1. Where a testatrix gives to her husband all her property for life and directs that after his ' death one-fourth of her estate should be divided between a son and an adopted son in such shares as her husband should see fit, and the husband without reciting the power gives one-fourth of all real estate to the son and five dollars to the adopted son “as his full share,” the husband validly exercises the power given him by his wife’s will.
    2. Under the Act of June 4, 1879, P. L. 88, a power of appointment may be validly exercised without a recital thereof or direct reference thereto.
    Submitted Feb. 19, 1912.
    Appeal, No. 60, Jan. T., 1912, by defendants from judgment of C. P. Lackawanna Co., June T., 1911, No. 465, for plaintiff on case stated in suit of Mary A. Lloyd and Samuel J. Lloyd to the use of Mary A. Lloyd v. Alice Fretz and M. D. Fretz.
    Before Fell, C. J., Brown, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Case stated to determine marketable title to land belonging at one time to Barbara J. Lloyd, wife of John Lloyd.
    Edwards, P. J., filed tbe following opinion:
    This case has been before us twice on a rule for judgment for the want of a sufficient affidavit of defense. Each time, for adequate reasons, we refused to dispose of the merits of the case on the record as presented, and we suggested that the controversy could be more satisfactorily considered on a case stated. Our suggestion was accepted by counsel, and the case stated is now before us.
    The legal questions involved arise from the consideration of two wills, that of Barbara Lloyd, the wife and that of John Lloyd, the husband. Does the will of Barbara Lloyd vest in her husband a valid power of appointment? And, has John Lloyd, in his will, properly exercised the power of appointment so vested in him?
    Barbara Lloyd devised her estate in the following words:
    “I do hereby give, devise and bequeath unto my beloved husband, John Lloyd, all my property, real, personal and mixed of what nature or kind soever, to hold during the term of his natural life, and after his death one-fourth of my entire estate to~go to my son, John D. Lloyd, one-fourth to my daughter, Mary Ann Patten, one-fourth to my son, Samuel J. Lloyd; (the remaining\ ''one-fourth of my estate to be divided between my son, \ Thomas T. Lloyd, and my adopted son, William Lloyd, \ in such shares as my husband, John Lloyd, shall see | fit.)
    It is clear that the wife, in reasonably apt terms, gave to her husband the power to dispose of one-fourth of her estate between her son, Thomas, and her adopted son, William, “in such shares as my husband, John Lloyd, shall see fit.” There can be no serious doubt, but that a limited power of appointment was vested by the wife in the husband as to one-fourth of her entire estate. Counsel, we understand, concede this proposition.
    The real dispute relates to the exercise of the power of appointment by the husband. Two of the items in his will read thus:
    Item 6. “I give, devise and bequeath to my son, Thomas Lloyd, a share of all the real estate like Samuel Lloyd and Mary Ann Patten, share and share alike, equal shares.”
    Item 7. “I give, devise and bequeath to William Prosser, whom I have raised, the sum of $5.00, as his full share.”
    It is agreed that the William Lloyd, named in the wife’s will, is the same person as the William Prosser named in the husband’s will. He was an adopted son.

      In reading the wife’s will it will be noticed that she gave the power to her husband to dispose of the one-fourth of her “entire” estate. Her will in terms devises all her property, “real, personal and mixed of what nature or kind soever.” In disposing of the one-fourth over which he had the power of appointment, the husband gives to one son “a share of all the real estate like Samuel Lloyd and Mary Ann Patten” that is, one-fourth of the real estate. There is nothing in the case stated to indicate the sum of the one-fourth of the wife’s “entire” estate. It may be a mooted question as to whether the husband has fully exercised the power vested in him by bis wife’s will. There may be some part of the one-fourth of the wife’s entire estate yet undisposed of; but that question does not concern us now. So far as it is shown by the husband’s will, he has given one-fourth of the real estate to one son, and to the other son he has given $5.00 “as his full share.” The items six and seven of the husband’s will should be read together, and thus reading them together we find a valid exercise of the power of appointment vested in the husband,. He gives to one son the one-fourth of the real estate and to the adopted son he gives $5.00 as his full share.
    The title of the plaintiffs in this case depends upon the validity of the devise by John Lloyd of the one-fourth interest in the real estate to the son, Thomas. We are of the opinion that the devise is valid and that the title is good.
    It is not necessary to discuss at length the law applicable to the present controversy. As early as 1863, in the case of Graeff v. DeTurk, 44 Pa. 527, it was decided that the English equity rule that where there is a power of appointment among several distributees each shall have an interest in the fund fairly proportioned to the amount for distribution and that the appointment of a nominal share to a beneficiarv is illusory and void, has never been adopted in Pennsylvania.
    The same doctrine has been recognized in several subsequent cases, cited in counsel’s briefs.
    For tbe reasons stated tbe plaintiffs are entitled to judgment. An order to this effect has already been signed.

      Error assigned was the judgment of the court.

      John J. Owens, Jr. and Houck & Benjamin, for appellants.
    If it were not for the Act of June 4th, 1879, this attempt to execute a power conferred by the will of Barbara Lloyd would be void, in that it does not refer to the power of appointment: Thompson v. Garwood, 3 Whart. 287; Wetherill v. Wetherill, 18 Pa. 265; Keefer v. Schwartz, 47 Pa. 503.
    The donee of a limited non-exclusive power must so appoint that every one of the objects shall have a share: Neilson’s Est., 17 W. N. C. 158; Russell v. Kennedy, 66 Pa. 248.

      A. A. Vosburg, for appellee.
    Under the act a power of appointment may be validly executed without a recital thereof, or direct reference thereto: Dillon v. Faloon, 158 Pa. 468; Ingersoll’s Est., 167 Pa. 536; Howell’s Est., 185 Par 350; Aubert’s App., 109 Pa. 447.
    The validity of a power of appointment of this character is well settled: Seitzinger’s Est., 170 Pa. 500; Forsythe v. Forsythe, 108 Pa. 129; McNeile’s Est., 217 Pa. 179.
    Where one has a general power of appointment, by will, the property will pass even under a general residuary request in the donee’s will, precisely as if he were the absolute owner: Terpee’s Est., 224 Pa. 482; Francombe v. Hynward, 29 Jurist 344; Finn’s Est., (No. 2), 18 D. R. 408; Graeff v. DeTurk, 44 Pa. 527; Forsythe v. Forsythe, 108 Pa. 129; Darling v. Edson, 4 Pa. Super. Ct. 498; Russell v. Kennedy, 66 Pa. 248.

      March 18, 1912:
   Per Curiam,

To what is said in the opinion of the learned president Judge of the Common Pleas, on which we affirm the judgment, it may be added that under the Act of June 4, 1879, P. L. 88, a power of appointment may be validly exercised without a recital thereof or direct reference thereto: Dillon v. Faloon, 158 Pa. 468.

The judgment is affirmed.


author: Mr. Justice Potter,

text:
    Kirby’s Estate.

      Wills — Estate in fee simple — Rule in Bhelley’s case — Act of April ffl, 1855, P. L. 868.

    Testator by his will gave to his daughter “the use, occupation and income” of his residuary estate, for and during her natural life, and upon her death, “leaving a child or children, and heir or heirs to her,” he gave the entire residue of his estate “to the said child or heir solely, or to the said children or heirs equally share and share alike.” Held, that the daughter took an estate in fee tail which under the Act of April 27, 1855, P. L. 368, was enlarged to a fee simple.
    Argued Feb. 20,1912.
    Appeal, No. 322, Jan. T., 1911, by John B. Kirby, from decree of O. C. Lackawanna Co., Year 1907, No. 481, dismissing exceptions to adjudication in Estate of William E. Kirby, deceased.
    Before Fell, C. J., Brown, Potter, Stewart and Moschzisker, J J.
    Affirmed.
    Exceptions to adjudication. Before Sandio, P. J.
    The material portions of the will of the decedent were as follows:
    “Item: I give, devise and bequeath to my beloved daughter, Mina Belle Kirby, the use, occupation and income of all the rest, residue and remainder of my estate, real, personal and mixed, of what kind or nature, whatsoever the same may be, and wherever situated, for her support, education and maintenance, for and during her natural life, subject to the absolute bequests herein contained in this my will, as follows:
    “Item: I give, devise and bequeath to my beloved daughter, Mina Belle Kirby, absolutely, from out of my said estate, and to her heirs and assigns forever, the following sums named, with the dates of payment, to wit:
    On her attaining the age of twenty-five years the sum of Ten Thousand Dollars.
    On her attaining the age of thirty years, the sum of Ten Thousand Dollars.
    And, on her attaining the age of forty years, the sum of Ten Thousand Dollars.
    Item: Should my said beloved daughter, Mina Belle Kirby, die leaving a child or children, and heir or heirs to her, then I give, devise and bequeath to the said child or heir solely, or to the said children or heirs equally, share and share alike, all the rest, residue and remainder of my said estate, real, personal and mixed, including any or all of the specified sums named in this my will as absolute bequests or legacies, which shall or may lapse to the remainder by reason of her decease prior to the date or dates when said legacies or bequests, or any of them, would legally vest in her.”
    “Item: Should my said beloved daughter, Mina Belle Kirby, die without leaving child or children, heir or heirs, then, all the rest, residue and remainder of my said estate, real, personal and mixed, including any or all of the specified sums named in this my will as absolute bequests or legacies, which shall or may lapse to the remainder by reason of the decease of the said beloved daughter, Mina Belle Kirby, prior to the date or dates when said legacies or bequests, or any of them, would legally vest in her, I give, devise and bequeath to my heirs at law, to be divided equally share and share alike.”

      The court held that the daughter took the estate in fee simple.

      Error assigned was decree dismissing exceptions to adjudication.

      Thomas F. Wells and Morton W. Stephens, for appellant.
    The words “child or children” (or either of them), in a will are primarily words of purchase and not of limitation: Guthrie’s App., 37 Pa. 9; Keim’s App., 125 Pa. 480; Sheets’ Est., 52 Pa. 257; Daley v. Koons, 90 Pa. 246; Dull’s Est., 217 Pa. 358; Bacon’s Est., 202 Pa. 535; Eichelberger’s Est., 135 Pa. 160; Gerhard’s Est., 160 Pa. 253; Clark v. Baker, 3 S. & R. 470; Miller’s Est., 145 Pa. 561.
    The courts have many times shown the well defined distinction in the application of the rule in Shelley’s case to real estate and personal property: Eichelberger v. Barnitz, 9 Watts 447; Sheets’ Est., 52 Pa. 257; Meyer’s App., 49 Pa. 111; Snyder’s App., 95 Pa. 174.

      H. O. Butler and O’Brien & Kelly, for appellee.
    The daughter took a fee: Kemp v. Reinhard, 228 Pa. 143; Shapley v. Diehl, 203 Pa. 566; Pifer v. Locke, 205 Pa. 616; Sheeley v. Neidhammer, 182 Pa. 163; Doebler’s App., 64 Pa. 9; Grimes v. Shirk, 169 Pa. 74; Mason v. Ammon, 117 Pa. 127; Kleppner v. Laverty, 70 Pa. 70; Fitzpatrick’s Est., 233 Pa. 33; Keys’ Est., 4 Pa. D. R. 134; Bacon’s App., 57 Pa. 504.
    March 18, 1912:
   Opinion by

Mr. Justice Potter,

In this case the testator gave to his daughter, Mina Belle Kirby, the use, occupation and income of his residuary estate, for and during her natural life, and upon her death, “leaving a child or children, and heir or heirs to her” he gave the entire residue of his estate “to the said child or heir solely, or to the said children or heirs equally, share and share alike.” The question to he determined is whether the daughter took a life estate only, or an estate in fee. The court below held that the expressed intention of the testator brought the case within the rule in Shelley’s case, and that the daughter took an estate in fee tail which, under the Act of April 27, 1855, P. L. 368, was enlarged to a fee simple. In reaching this conclusion the court below cited and applied the decision in Shapley v. Diehl, 203 Pa. 566. In that case, real estate was conveyed by a father to his son “for the term of his natural life and at his death to his children or heirs.” It is to be noted that this description of the remaindermen as “children or heirs” is substantially the same as that used in the present case. It was there held that the case was one calling for the application of the rule in Shelley’s case, and that under it the son took a fee simple estate. In the course of the discussion, Mr. Justice Mitchell said (p. 568): “The question for us is the sense in which the words were used in this instrument, that is what was the intent of the grantor in the phrase ‘children or heirs?’ If he had omitted the word ‘children’ and said ‘heirs’ only, the precise case for the rule would have been presented and the life estate would have been enlarged to a fee, yet the meaning would have been exactly the same and the children would have come in as first in the line of inheritance. If on the other hand he had omitted the word ‘heirs’ and said ‘children’ only, the clear presumption would have been, with nothing to rebut it, of intent to give to them directly as purchasers. But if that was his actual intent, why did he add the words ‘or heirs’ especially in view of the fact that there were no children then in existence bnt only one child, naturally suggesting the very common form of expression, ‘child or children.’ The most evident explanation would seem to be that he had the word ‘children’ in his mind not as descriptio personarum but as representing the next in the line of inheritance, and then the thought occurring to him that there might not be any children he added, ‘or heirs’ to complete the expression of his intent. * * * The phrase in the present case is ‘children or heirs’ and that means heirs of the grantee of the life estate, the word heirs being used as a synonym to enlarge and explain the preceding word which might otherwise fail of its real intendment. The words, therefore, naturally and properly seem to express the intent that the donees in remainder should take not from the donor directly as purchasers, but in succession by inheritance from the grantee of the life estate.” This reasoning seems to fit precisely the present case. The same construction appears in the decision in Vilsack’s Estate, 207 Pa. 611, where a testator gave his estate after the death of his widow, to his sons and daughters for life, and after the death of any one of them, he gave the shares of those so dying, “to their child or children (should they leave any children at their death) * * * but should neither of my sons or daughters leave no heirs, then their share is to be divided between all of my grandchildren, share and share alike.” In construing this language, the court below (Over, J.) in an opinion adopted by this court, said (p. 613) : “It seems then that the testator intended here to limit the estate given to his children to their lineal heirs, or issue, which shows also his intention to use the word ‘children’ in its comprehensive and extended sense, meaning issue or heirs of the body. If this construction be correct the gift then is to his children for life with remainder to the heirs of their bodies or their issue, which vested in the children a fee tail, enlarged by the act of assembly into a fee simple.” Where the word “heirs” is coupled with the word “children” it is fair to presume that the testator intended to have the one word qualify or explain the other, and create an estate tail. See Wilson v. Heilman, 219 Pa. 237, and other cases therein cited, among which is Hastings v. Engle, 217 Pa. 419, where the testatrix used the words “heirs of the body” and afterwards the word “children,” Mr, Justice Mestrezat said (p. 422): “It is true that prima facie ‘children’ is a word of purchase and not of limitation, and, uncontrolled by the context, must be so construed. But where it is clear that it is used in the sense of ‘heirs’ or ‘heirs of the body,’ used in a former part of the will, it must be so construed, and the intent of the testator be permitted to prevail.”'

Under the rule recognized and applied in the foregoing cases and in many others which might be cited to the same effect, we must conclude that the words “child or children, and heir or heirs to her” as used by the testator in the present case, were properly construed as meaning “heirs of the body” and that the rule in Shelley’s case was correctly applied. Since the decision in Amelia Smith’s Appeal, 23 Pa. 9, it has been held that words in a will which when applied to real estate would create an estate tail, will when applied to personal property pass the entire interest. The decision in Mengel’s Appeal, 61 Pa. 248, is an illustration, as is Biddle’s Appeal, 69 Pa. 190, where Mr. Justice Agnew said (p. 194) that where the language of the will vests a fee tail, in testator’s realty, “the estate in personalty becomes absolutely vested in the first taker.”

As the court below was right in awarding the balance for distribution to the appellee absolutely, the appellant has no interest that entitles him to question the power of the court to appoint a trustee to hold the legacies until the time of payment Is reached.

The assignments of error are dismissed, and the decree of the Orphans’ Court is affirmed.


text:
    Hurst v. Heading Abattoir Company, Inc., Appellant.

      Negligence — Master and servant — Falling through trap door— Elevator — Failure of signal apparatus.

    In an action by a wife tq recover damages for tbe death of her husband from his employer, an abattoir company, a verdict and judgment for plaintiff will be sustained where the evidence shows that the deceased while in the discharge of his duties fell through a trap door covering an elevator shaft, that there was no danger in passing over the door except when the elevator was moving; that electric bells gave notice of the elevator’s movements, but that for a considerable period they had not been working reliably, and that the defendant had been repeatedly advised of these facts but had not corrected the trouble.
    Argued Feb. 28,1912.
    Appeal, No. 150, Jan. T., 1911, by defendant from judgment of C. P. Berks Co., June T., 1908, No. 59, on verdict for plaintiff in case of Kate Hurst v, Reading Abattoir Company, Inc.
    Before Fell, C. J., Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband.
    At the trial the jury returned a verdict for $4,075. On a motion for a new trial and for judgment n. o. v. Endlich, P. J., filed an opinion which was in part as follows :
    It is an uncontested fact in this case that the injury which resulted in the death of plaintiff’s husband was received by him in the discharge of his duty as defendant’s employee. It is equally undisputed that it was received by him in passing from one part of the building to another over a trap-door covering an elevator shaft, opening upwards to let the elevator through, constituting when closed a part of the floor, intended to be used as such, and affording the only means of passage from the side on which he was to that to which he was going. There was no danger in passing over this trap-door except when the elevator was moving. For the purpose of giving notice of its movements there were electric bells fixed at certain points. There appears, however, to be no room under the evidence for a reasonable doubt that these bells, during a considerable period, had been working unreliably. Frequently they did not ring. The defendant was repeatedly advised of this fact. There was no serious attempt on its part to put them into more efficient condition. The batteries would be shaken up by the engineer or some other employee, and then the bells would work for awhile. Several times on the morning of the accident they did not; once quite early they did. There is no pretense that at the precise time of the occurrence they sounded. The defendant’s superintendent was with the deceased, but a few feet behind him. He does not say that the bells rang. It is not clear that there were any other means by which one approaching the trap-door could ascertain whether the elevator was moving or not. The plaintiff’s husband ■ had been employed at this place for quite some time and frequently gone over the trap-door. There is nothing to indicate that he knew the bells to have failed that morning. Nor, since they had not failed each time, is there anything to show that he had not reason to think they were working. He went towards the trap-door rapidly and stepped upon it without first stopping.
    Upon this statement of facts two questions arise involving the right of recovery, (1) whether the deceased had assumed the risk of the injury that befell him and (2) whether any negligence on his part contributed to it.
    Whatever risk there was in the mere presence of the trap-door, the plaintiff’s husband undoubtedly assumed. But there was no danger in that to him so long as the signal apparatus was in working order, unless he chose to ignore its warnings. That, however, the defendant owed him the duty of keeping that apparatus effective can hardly be doubted. See Ortlip v. Traction Co., 198 Pa. 586. Its efficiency was not, therefore, one of the risks he can be deemed to have assumed by accepting his employment or continuing in it. Nor was the knowledge brought home to him by the evidence such as to imply that assumption. Granted he knew all that the facts shown in relation to the elevator could fairly have apprised him of. Then he knew that there were bells intended to give notice of the movements of the elevator, and that when in order they did so; and whilst he knew that they often got out of order, he knew also that, when they did, they were brought back to efficiency in the manner above stated. That he knew them to have failed on the morning of the accident would be a mere guess. He could not, of course, hear that they did not ring, and there is nothing to prove that he observed or was in a position to observe the elevator going up without previous signal. It would be just as permissible to suppose that he heard the bell ring on the one occasion in the morning of the day of the accident when, it was testified, it sounded, and that he was justified by having heard it in believing it to be in working order. In short, whatever peril there was to the deceased, employed where he was, from the failure of the bells to ring, it was not one ordinarily, reasonably or necessarily incident to his employment at that place, but exceptional, and of his knowledge of its existence at the critical moment there is no evidence. It follows that the question of his assumption of that risk was not in the case either as a matter of law to be declared by the court or as one of fact to be found by the jury.
    The question of his contributory negligence was undoubtedly in the case, — not indeed as one to be negatived by plaintiff’s evidence in the first instance: Baker v. Gas Go., 157 Pa. 593; Weitzel v. Traction Co., 184 Pa. 407, 412, nor as one to be affirmed by the court: See Joyce v. R. R. Co., 230 Pa. 1, but as one to be passed upon by the jury in the light of all the circumstances in evidence bearing upon the prudence or imprudence of his actions and movements. It was so submitted to the jury and negatived by their verdict. Upon the familiar principle laid down in Phila. Trust Co. v. R. R. Co., 160 Pa. 590, 600, the court is without the means of testing the accuracy of their conclusion on a matter which the law refers to them exclusively.

      Error assigned amongst others was in refusing judgment for defendant n. o. v.

      John B. Stevens, with him Garrett B. Stevens, for appellants.
    The servant assumes the risk of the known negligence of his employer, if he accepts or continues in the service after knowledge of such negligence: McCormick Harvesting Machine Co. v. Zakzewski, 4 L. R. A. (N. S.) 848 note (220 Ill. 522, 72 N. E. Repr. 147); Brossman v. R. R. Co., 113 Pa. 490; Lee v. Dobson, 217 Pa. 349; McCarthy v. Shoneman, 198 Pa. 568; Kupp v. Rummel, 199 Pa. 90; Wannamaker v. Burke, 111 Pa. 423; Pawling v. Hoskins, 132 Pa. 617.

      Henry P. Keiser, for appellee,
    cited: Patterson v. Trust Co., 211 Pa. 173; Lillie v. Car & Foundry Co., 209 Pa. 161.
    March 18,1912:
   Per Curiam,

The facts of the case and the law applicable thereto are clearly stated in the opinion of the learned president judge of the Common Pleas, on which we affirm the judgment.


text:
    Yocum v. Reading City, Appellant.

      Negligence — Defective street — Holes in asphalt — Motor cycle— Contributory negligence.

    In an action against a city to recover damages for personal injuries sustained by the plaintiff by reason of a fall from a motor cycle, the plaintiff cannot be convicted of contributory negligence as a matter of law, where the evidence shows that at the time of the accident the plaintiff was riding over an asphalt pavement broken up with numerous holes; that he was not familiar with the street, which had been recently sprinkled; that he slowed down to a very slow speed; that beyond a particular corner he encountered a large hole, but passed it keeping close to the curb; that looking ahead of him he observed between the curb and the street railway track several teams, some moving and some standing near the curb, and that with his attention directed partly to the street bed and partly to the teams, he ran into another hole which he did not see and was thrown and injured.
    Argued Feb. 26,1912.
    Appeal, No. 153, Jan. T., 1911, by defendant from judgment of C. P. Berks Co., Sept. T., 1909, No. 30, on verdict for plaintiff in case of Charles Yocum v. Reading City.
    Before Fell, C. J., Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    At the trial the jury returned a verdict for plaintiff for |8,156.50. On a rule for a new trial and for judgment for defendant n. o. v. Endlich, P. J., filed the following opinion;
    The complaint that the verdict rendered in this case is excessive was abandoned at the argument. The remaining reasons assigned in support of the application for a new trial, except those relating to the refusal of defendant’s points, were not attempted to be sustained by any contention pertinent to them. The points referred to contemplating binding instructions in favor of defendant, their consideration is more properly involved in the disposition of the application for judgment n. o. v., — which, indeed, is the only one now pressed. It is grounded, as the city solicitor explicitly states, upon the theory that the testimony of the plaintiff himself discloses contributory negligence on his part to be declared by the court.
    The very recent decision in Joyce v. R. R. Co., 230 Pa. 3, reiterates the well-established rule that the question of contributory negligence is for the court only where both the facts and the inferences to be drawn from them are free from doubt, — so much so as to make it inconceivable that any two minds could rationally differ in their conclusions.
    The plaintiff had had a year’s experience in riding his motor-cycle when the accident happened upon Eighth street, one of the principal thoroughfares of the city. He was riding south towards Penn street, which is two blocks from the point where he came upon Eighth street. He had not been in the habit of passing over this portion of Eighth street, and was not familiar with its condition. The block immediately north of Penn street, between it and Washington street, had for some considerable time been and then was very much out of repair. The asphalt pavement was broken up with numerous holes. When plaintiff reached Washington street he found the street freshly sprinkled, and slowed down to a very low speed. Beyond Washington street he at once encountered a large hole, but passed it keeping close to the curb. Looking ahead of him he observed between the curb and the street railway track several teams, some moving and one standing at the curb. With his attention directed partly to the street bed and partly to the teams, he ran into another hole which he did not see. His machine broke and he, in falling, was very severely and permanently injured. His own testimony in chief and on cross-examination as to what he was doing and how he was proceeding cannot be declared as matter of law to convict Mm of any omission of duty. After getting by the first hole, he says—
    I proceeded but a very short distance when my attention was attracted by some teams; I was going ahead, I looked carefully. Q. Did you look at the roadway? A. Yes, sir. Q. Did you see any hole? A. No, sir..... Q.....You say you didn’t see a hole? A. No, sir..... Q. You didn’t look down at the time that you were passing there because you say you were looking at the teams? A. I looked carefully ahead when I was riding there, straight ahead.....Q. And your attention was directed to the teams; is that right? A. Yes, sir. Q. And you you were not looking down on the street at that time? A. No, sir, not when I was looking at the teams.....Q. And you were thinking of passing by those teams? A. Yes, sir, I was thinking of passing the team that was moving; it was my intention that that team should pass the one that was tied to the post and I would pass it at Court street.....Q. (After passing the first hole) you didn’t look for any more holes after that? A. No, sir. I looked ahead on the road and watched the teams too .....as a man will do when he is driving, he cannot give his sole attention to a horse or to an automobile or to the road, because in doing one or the other something else may happen; he has to watch for both. Q. Just at that particular time.....you were not paying any attention to the street and you said so, didn’t you? A. No, sir; I looked ahead on the road. Q. You just said that your attention was directed to the teams? A. Well, I looked at the road and then looked at the team; I couldn’t look at the two at one time.....Q. And you looked down on the ground? A. I looked at the ground and then looked around for teams, that I might avoid the teams.....Q. Well, it was daylight? A. It was daylight. Q. It was light enough for you to have seen the hole if you had looked for it? A. No, sir, I couldn’t see the hole. Q. You couldn’t see the hole? A. I didn’t see the hole. Q. And your eyesight was good? A..... yes, sir.
    If in all this there are any inconsistencies, it was of course for the jury to deal with them and to ascertain the effect of the testimony as a whole: Kohler v. R. R. Co., 135 Pa. 346; Danko v. Rys. Co., 230 Pa. 295. It certainly does not exclude, as unreasonable and capricious, an interpretation whereby his conduct would appear to have been unobjectionable, judged by the rules laid down in such cases as Evans v. Philadelphia, 205 Pa. 193; Quinlan v. Philadelphia, 205 Pa. 309; McClay v. Philadelphia, 224 Pa. 174. Under the charge, which is not impugned, the jury must be understood as having put that interpretation upon it, and that settles his right to recover.
    The rules to show cause are discharged.

      Error assigned was in refusing binding instructions for defendant and in refusing motion for judgment n. o. v.

      Henry P. Reiser, for appellant.
    The accident happened at about half past ten in the morning with nothing to obstruct the plaintiff’s view and the result can be. reconciled only upon the theory that he took his chances in riding along a street that was apparently dangerous and therefore negligent in doing so, as well as in not looking for defects which he knew existed.: Dwyer v. Port Allegheny Borough, 216 Pa. 22; Evans v. Philadelphia, 205 Pa. 193; Erie v. Magill, 101 Pa. 616; Fleming v. Lock Haven, 15 W. N. C. 216; Wilson v. Charlestown, 90 Mass. 137; Hill v. Tionesta Township, 146 Pa. 11; Forks Twp. v. King, 84 Pa. 230; Shallcross v. Philadelphia, 187 Pa. 143; Robb v. Connellsville Borough, 137 Pa. 42; Sickel v. Philadelphia, 209 Pa. 113; Dougherty v. Philadelphia, 210 Pa. 591; Iseminger v. York Haven Water & Power Company, 206 Pa. 591.

      John B. Stevens, with him Isaac Eiester, for appellee.
    The case was for the jury: Danko v. Rys. Co., 230 Pa. 295; Joyce v. R. R. Co., 230 Pa. 1; Cronmuller v. Evening Teleg., 232 Pa. 14; McManamon v. Hanover Twp., 232 Pa. 439; Wood v. Bridgeport Borough, 143 Pa. 167; Brown v. Milligan, 33 Pa. Super. Ct. 244; Graham v. Philadelphia, 19 Pa. Super. Ct. 292.
    The plaintiff’s right to recover was based on the cases of Evans v. Phila., 205 Pa. 193; Quinlan v. Phila., 205 Pa. 309; McCay v. Phila., 224 Pa. 174, and Graham v. Phila., 19 Pa. Super. Ct. 292.
    March 18, 1912:
   Per Curiam,

The negligence of the city in not maintaining its streets in a safe condition, if not conceded was not disputed and the' only question at the trial was whether the plaintiff made out a case clear of contributory negligence. On this subject nothing can be added to what is said by Judge Endlich in discharging the rules for a new trial and for judgment non obstante veredicto.

The judgment is affirmed.


author: Mr. Justice Elkin,

text:
    Schnader’s Estate.

      Wills — Accumulations—Minority of granddaughter — Trusts and trustees.

    Where a testator devised real estate to a trustee to pay the rents, issues, income and profits to a granddaughter, or her lawful issue annually during her natural life, payment to commence “upon her or her said issue attaining the age of twenty-one years,” the granddaughter on attaining her majority is entitled to receive absolutely all of the income that had accumulated during her minority.
    Argued Feb. 26,1912.
    Appeal, No. 167, Jan. T., 1911, by Milton H. Schnader, from decree of O. C. Berks Co., Dec. T., 1910, No. 21, dismissing exceptions to adjudication in Estate of Davis O. Schnader, deceased.
    Before Fell, C. J., Beown, Mesteezat, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to adjudication.
    From the record it appeared that Jacob C. Schnader by a codicil to his will directed as follows:
    Item: I give devise and bequeath to my Son Milton H. Schnader his heirs and assigns the following mentioned real and personal Estate, in trust
    One two Story Brick house and lot of ground on tenth Street No. 250
    One two Story Brick House and lot of ground on the South eleventh St. No. 232
    One two Story Brick house and Lot of ground on the South side Muhlenburg St. No. 952
    One two Story Brick house and Lot of ground on the North side of Cotten Street No. 951 he to pay the rents, issues, income and profits thereof to my granddaughter Maud Bachman or to her lawful issue annually for and During her natural life the Same to commence upon her or her Said issue attaining the age of twenty one years. Provided nevertheless that Said mentioned real and personal property may be transferred and conveyed in fee Simple to my Said grandaughter or to her Said issue by Said trustee whenever in his Judgment and discretion and with the consent of my wife, he Shall deem it expedient and prudent to, Do, So, and provided also that in the event of the death of my Said granddaughter without Leaving Lawful issue, I Devise and bequeath Said real and personal property to my Son Milton H. Schnader his heirs and assigns
    The granddaughter, S. Maude Bachman, having reached the age of twenty-one years was awarded the accumulations of income which had accrued during her minority.
    Exceptions to the adjudication were dismissed by the court in an opinion by Bland, P. J.

      Error assigned was the decree of the court.

      Charles T. Tyson, with him William J. Rourke, for appellant.
    The distribution of the surplus was erroneous: Weinman’s Est., 223 Pa. 508; Wright’s Est., 227 Pa. 69; Roney’s Est., 227 Pa. 127; Washington’s Est., 75 Pa. 102.

      Isaac Hiester, for appellee.
    The income vested in the granddaughter as it accrued, though not payable to her until she arrived at the age of twenty-one years, and the case in all respects resembles Penrose’s App., 102 Pa. 148.
    March 18,1912:
   Opinion by

Mr. Justice Elkin,

The fund for distribution represents the income from real estate accumulated during the minority of the beneficiary who was living at the time of the death of the testator. It was not an unlawful accumulation of income under the act of 1853 because this act did not forbid an accumulation for the benefit of a minor during an existing minority. The provision for accumulation in the will of the testator during the minority of his granddaughter is not forbidden by the act and is clearly within the exception to the general rule. We entirely agree with the contention of the learned counsel for appellee, that the income vested in the beneficiary, as it accrued, although it was not payable to her until she arrived at the age of 21 years. The corpus was real estate devised in trust primarily for the benefit of the granddaughter. The trustee was required to pay the rents, issues, income and profits to the granddaughter, or her lawful issue, annually, during her natural life, payment to commence “upon her or her said issue attaining the age of twenty-one years.” She has attained the age of 21 years and the trustee is accounting for the income accumulated during her minority: The clear intention of the testator was to give the income to the granddaughter if living at that time, and if not then living her lawful issue were to take as beneficiaries. This case in principle is on all fours with Penrose’s Appeal, 102 Pa. 448. For the purposes of the present case it is unnecessary to consider the numerous questions raised by the thirty assignments of error set out in the paper book of appellant. We are dealing with the account of the trustee and the fund for distribution represents accumulated income. There is no other question properly before the court. The testator directed this income to be paid to the granddaughter and she is in court demanding it. The auditing judge directed that she should have it and this disposition of the fund is so clearly right as to make elaborate discussion unnecessary. The facts warranted the surcharge of interest and there is nothing in the record to justify a reversal on this ground.

The title to the real estate is not involved in this proceeding and we do not therefore pass on it. That question, if it be one, can be raised by the proper parties in a proper proceeding.

Decree affirmed at the cost of appellant.


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

      Railroads — Sparks—Negligence—Spark-arrester.
    In an action against a railroad company to recover damages for the burning of plaintiff’s farm buildings, where it is undisputed that tbe fire was caused by sparks thrown out by a particular locomotive, tbe case is for tbe jury and a verdict and judgment for tbe plaintiff will be sustained, where it appears that there was a spark-arrester of an approved pattern on the locomotive; that this spark-arrester was of a type adapted to tbe use of anthracite coal; that tbe company permitted and directed its employees to use for firing the engine soft coal with anthracite in proportion of one to ten; that tbe spark-arrester was adequate for the mixture; that tbe anthracite and soft coal were not supplied to the engine, already mixed in that proportion, but separately side by side, so that the engineer had the opportunity to mix them in any proportions which pleased him; that in order to get up steam quickly and get more power it would be convenient for him to use a greater proportion of soft coal in the mixture; that just before the burning the engine in question was started with a load up grade and around a curve, and that it was puffing and laboring and throwing out smoke, although owing to the time of day sparks were not actually visible.
    Argued Feb. 27, 1912.
    Appeal, No. 51, Jan. T., 1912, by defendant, from judgment of C. P. Berks Co., Aug. T., 1909, No. 120, on verdict for plaintiff in case of S. B. Wagener and C. B. Wickersham, trading as S B. Wagener & Co. v. Philadelphia & Reading Railway Company.
    Before Fell, C. J., Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for the burning of farm buildings.
    At the trial the jury returned a verdict for plaintiff for $3,500.
    On a rule for a new trial and for judgment for defendant n. o. v. Endlich, P. J., filed the following-opinion :
    This is an action of trespass to recover damages for the burning of certain of plaintiff’s buildings with contents, as alleged in the declaration, through the negligence of defendant’s servants in the management and direction of a locomotive engine upon its nearby railway and the want of a proper spark-arrester in the same. About the fact that the fire was set by a spark or sparks thrown out by the locomotive there was not at the trial and is not now any dispute. That there was a sparkarrester in this locomotive and that it was of an approved pattern, was so fully shown by the evidence that the jury was instructed to accept it as a fact. The contention, however, was that this spark-arrester was one adapted to the use of anthracite coal in firing the engine; that the company permitted and directed its employees in charge of it to use for that purpose soft coal with anthracite in the proportion of 1 to 10; that the spark-arrester was adequate for that mixture; that the anthracite and soft coal were not given to the employees already mixed in the proportions stated, but separately, side by side, so that the fireman could vary them as he chose; that in order to get up steam quickly and get more power it would be convenient for him to use a greater proportion of soft coal in the mixture; and that for such a mixture the spark-arrester would be inadequate. All this rested upon testimony brought out by defendant or from its witnesses, to the benefit of which, of course, the plaintiffs were entitled before the jury: Susquehanna Mut. Fire Ins. Co. v. Gackenbach, 115 Pa. 492, 499; Hus-var v. R. R. Co., 232 Pa. 278, 281. Upon the basis of evidence that this engine had just been started, how it acted and labored at the time, the load it was drawing, the grade and character of the stretch of track it was passing over, etc., it was argued by plaintiffs that the jury had a right to infer that the prescribed and safe proportions of the mixture were not observed by the fireman, but that, in order to get up steam and power he was doing just that which would accomplish that purpose and which the company had put it into his reach to do, namely increasing the proportion of soft coal or using it alone, thereby making the spark-arrester inadequate as a protection against the undue emission of sparks capable of setting fire to the plaintiffs’ buildings. The charge left it to the jury to say whether this was the proper and the only possible explanation of the occurrence under the evidence, and in the event of their so concluding to find for the plaintiffs. The verdict was for the latter in an amount which is not assailed as excessive. Claiming that it is otherwise erroneous, however, the defendant has obtained these rules.
    The burden of its argument in support of both is that the plaintiff’s case is defective in not showing sparks of an excessive size to have actually escaped from the engine; that only if that were shown by direct evidence would there be any proper basis for inferring that the engine was improperly fired, or that the spark-arrester was inadequate to the requirements of such method of firing as may have been adopted. It is not denied that the negligence charged against the company might be proved circumstantially: John Hancock Ice Co. v. B. B. Co., 224 Pa. 74, 231 Pa. 117. But it is insisted that in its circumstantial proof the first and indispensable step must be to show the fact of the emission of sparks greater in size than the mesh of the spark-arrester, in good order, would allow to escape when the firing was done with anthracite coal or the prescribed mixture of the same and soft coal, and that in the absence of such proof in this case there can be no inference of negligence against the defendant and no recovery from it by plaintiffs. Let it be assumed for present purposes that there is no such proof here, and still there remains what seems to be an ample basis for the inference in question.
    The fact that fire was set to plaintiffs’ buildings by a spark or sparks escaping from defendant’s engine No. 856 is undisputed. The fireman had at his hand two kinds of fuel, one of them better adapted than the other to quickly getting up steam and power. The mere existence of the opportunity to use it in preference to the other is not proof of his having so used it: Equitable Sav. & Loan Ass’n. v. Boland, 198 Pa. 643, 646; Pollock v. Pollock, 71 N. Y. 137. But there was occasion for quickly getting up steam, etc. The engine had just been started with a load to be drawn up-grade and around a curve, and it was puffing and laboring and throwing out smoke. The time was shortly after noon, when “the air may be full of live sparks.....and yet the eye cannot detect them:” John Hancock Ice Co. v. B. B. Co., 231 Pa. 117, 121. It is undoubted that sparks must have been emitted and carried alive over a distance of 44 feet to the plaintiffs’ barn, where they ignited the straw and chaff. A spark is an unconsumed particle of fuel in a state of combustion. The high wind blowing at the time would naturally tend to hasten its consumption. In order to reach the plaintiff’s barn in a condition to set vhe fire it must, as one of defendant’s witnesses admits, have been of considerable size. It is agreed on all hands that particles of ignited soft coal escaping through a spark-arrester expand in the air. See Badman v. B. R. Co., 42 Pa. Super. Ct. 531, 536. Taking all this together, why should the jury be, as a matter of law, forbidden to infer that it was such a spark that did the mischief; that, in other words, the fireman made use of the opportunity of firing with soft coal beyond the prescribed proportion, and that it was as a result of his having done so that a spark capable of carrying fire to plaintiffs’ buildings escaped? It might strengthen this conclusion if it were shown either that the engine was in the habit of throwing out large sparks, or that it threw out such at the particular time the fire occurred. But the rules of evidence, founded in common sense: Rodgers v. Stophel, 32 Pa. Ill, 113, and necessity: Mish v. Wood, 34 Pa. 451, 454, give way to necessity: Garwood v. Dennis, 4 Binn. 314, 326; Com. v. Barr, 25 Pa. Super. Ct. 609, 613. If the proof just indicated as helpful where practicable were to be held indispensable, then, no matter how flagrant the fireman’s abuse of his opportunity to fill up the fire-box with soft coal, there can be no redress to plaintiffs for the injury resulting from that act to them, because, owing to the nature of the fuel thus improperly used and the weather conditions, the sparks emitted were partially or wholly consumed before dropping to the ground, or owing to the time of day could not be seen, or in any event could not be measured while flying through the air. It is not conceived that the availability of circumstantial evidence is subject to such limitations. The decisions in John Hancock Ice Co. v. R. R. Co., 224 Pa. 74, and 231 Pa. 117, do not impose them. On the other hand in Taylor v. Assnr. Corp., 208 Pa. 439, the Supreme Court approved the rule laid down in Merrett v. Accid. Ass’n., 98 Mich. 338 (57 N. W. Repr. 169), that, where the evidence points to one of several possible explanations of an occurrence as more probable than the others under the circumstances, the jury may adopt it as supported by the preponderance of the evidence. And the most stringent test of the sufficiency of circumstantial evidence to justify a given conclusion goes no further than to require that it point to the same as the only rational explanation of the occurrence founded in the evidence: Johnson v. Com., 115 Pa. 369, 393; Com. v. Johnson, 162 Pa. 63, 69; Com. v. Roddy, 184 Pa. 274, 288; Com. v. Kovovic, 209 Pa. 465, 468. Such was the test prescribed to the jury in this case. Whether the evidence met it or not was one of those questions depending upon the ascertainment of facts and the probable and reasonable inferences and presumptions from them, whose decision is by our law committed to the jury and when rendered by it admits of no control by any rule of accuracy the court has the power or means to apply: Phila. Trust Co. v. R. R. Co., 160 Pa. 590, 600.
    It follows that on defendant’s own assumption its position is not sustainable, and it is therefore unnecessary to inquire whether the evidence in the case justifies that assumption quite as broadly as it is made. As for the manner of the submission of the case to the jury, it is not believed that the charge taken as a whole did the defendant any wrong. Certainly the essential conditions of plaintiffs’ right to recover against it were, throughout, prominently kept before the jury, and they were told that no duty rested upon the defendant to explain how the occurrence happened: Devlin v. Light Co., 198 Pa. 583, 585.
    The rules to show cause are discharged.

      Error assigned was in refusing binding instructions for defendant, and in not entering judgment for defendant n. o. y.

      Snyder & Zieber, for appellant.

      William Kerper Stevens, with him Thomas K. Leidy, for appellees.
    March 18, 1912:
   Per Curiam,

The judgment is affirmed on the opinion of Judge Endlich.