text:
    Philadelphia to use v. Harry C. Nichols Company, Appellant.

      Municipalities — Contractors—Bonds to protect subcontractors and material men.

    Where a contractor’s bond to secure subcontractors and material men, required by city ordinance, has been voluntarily given, it may be enforced according to its terms, although it exceeds the requirements of the ordinance.
    A city ordinance provided that contractors for public work should execute a bond to pay all persons supplying them “with labor or materials, whether as subcontractors or otherwise, in the prosecution of the work provided for in such contracts.” The ordinance authorized anyone who had furnished “labor and materials, either as a subcontractor or otherwise,” to bring suit on the bond in the name of the city to his use. The condition of such a bond was to pay “any and all persons, any and all sums of money which may be due, for labor and material supplied or performed in and about the said work.” The contractor and the subcontractor for bricks both became financially embarrassed, and a material man of the subcontractor continued to furnish bricks to parties who were carrying on the original contracts who had an interest to do so. Suit was brought by the material man against the contractor, the surety in the bond, and the subcontractor. Another person was by amendment made a codefendant. Neither this person nor the subcontractor were partners of the contractor, and the surety was not charged as a surety for a partnership. The court amended the record by striking out the name of the subcontractor, and of the-additional codefendant, as parties defendant, and a judgment was obtained against the contractor and the surety. Held, (1) that the bond was not broader than the purpose and scope of the ordinance, and could be enforced according to its terms; (2) that the surety was not relieved by reason of the work being carried on under the original contract by one having an interest in seeing that the contract was executed; (3) that the amendment of the record was properly allowed; (4) that a verdict and judgment for plaintiff should be sustained.
    Argued Jan. 19, 1906.
    Appeal, No. 306, Jan. T. 1905, by-defendant, from order of C. P. No. 4, Phila. Co., March T., 1901, No. 1,268, dismissing exceptions to adjudication in case of The City of Philadelphia to use of Edmund Webster and Andrew D. Keyser, trading as Edmund Webster and Nephew, y. The Harry C. Nichols Company, James Harffey and The Union Surety and Guaranty Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed..
    Assumpsit upon a bond.
    The case was referred to George Wharton Pepper, Esq., who found the facts to be as follows:
    1. On March 30, 1896, the councils of Philadelphia passed an ordinance which was duly signed by the mayor. The ordinance was as follows :
    “ That hereafter any person or persons entering into a contract with the city of Philadelphia for the erection or construction of any public buildings or for the prosecution or completion of any public work, or for repairs upon any public building or public work, either in the capacity of subcontractor or material and supply man, or for labor furnished upon said buildings or work, shall be required before commencing such work to execute a penal bond in such sum as may be required by ordinance or by the head of a department or bureau, together with such sureties as may he required by ordinance or said head of department or bureau with the additional obligations that such contractor or contractors shall and will promptly make payment to all persons supplying him or them with labor and materials, whether as a subcontractor or otherwise, in the prosecution of the work provided for in such contract, and any person or persons making’ application therefor and furnishing affidavit to the department or bureau under the direction of which said work is being, or has been prosecuted, that labor or materials for the prosecution of such work has been supplied by him or them, and payment for which has not been made, shall be furnished with a certified copy of such contract and bond upon which said person or persons supplying such labor and materials, either as a subcontractor or otherwise, shall have a right of action, and shall be authorized to bring suit in the name of the city of Philadelphia for his or their use and benefit against said contractor and sureties, and prosecute the same to final judgment and execution: Provided, that such action and its prosecution shall involve the city of Philadelphia in no expense, and that the person or persons so authorized to bring suit shall first furnish such indemnity to the city of Philadelphia against costs as shall be approved by the city solicitor: Provided, also, that said bond shall contain a condition that no suit shall be brought upon the same after the expiration of two years from its date.”
    2. On March 29,1899, the Harry C. Nichols Company, a corporation formed under the laws of the state of Virginia, having been awarded by the city a contract for the building of a schoolhouse on the north side of Oxford street between Glen-wood avenue and Corlíes street, entered into a contract with James Harffey by which Hartley agreed to furnish the materials and do the brickwork for the school building covered by the Nichols company’s contract with the city. The agreement recites that the Nichols company “ has entered into articles of agreement with the city of Philadelphia.” In point of fact, although the matter appears not to be material, the contract between the Nichols company and the city was not entered into until June 20, 1899.
    3. On April 14,1899, Harffey as principal, and Andrew Diamond as surety, sealed and delivered to the Union Surety and Guaranty Company a bond for the faithful performance of the subcontract for the brickwork. The Union Surety and Guaranty Company exacted this bond for the reason that it was about to become surety for the Nichols company upon the bond to be given by the Nichols company as the principal contractor for the school building in the manner to be presently specified.
    4. On June 5, 1899, the Nichols company, Harffey and Diamond entered into the following written agreement:
    “Whereas The Harry C. Nichols Company, Harry C. Nichols, president, has entered into a contract with the city of Philadelphia for the erection and construction of a schoolhouse located at Oxford street and Glenwood avenue, Philadelphia aforesaid.
    “And Whereas in'the erection and construction of same said company contracted with Andrew Diamond and James Harifey both of the city of Philadelphia, contractors, to respectively assume the stonework (not cut stone) and brickwork thereof for the price or sum of seven thousand nine hundred dollars each.
    “And Whereas in consideration of the assistance rendered said Nichols company by the said Diamond & Harffey whereby said contract was procured by Nichols company and the work and labor performed by the said Diamond & Harffey in the furtherance of the said Nichols company’s contract whereby the same shall be performed.
    “ It is hereby expressly covenanted and agreed by and between the aforesaid Harry C. Nichols Company, Andrew Diamond and James Harffey, that the said company shall divide into two equal parts its net profits of the entire contract and give to the said Andrew Diamond and James Harffey jointly one half equal part, and the remaining one half equal part of said entire net profits to be retained by the said Harry C. Nichols Company.
    “ The said distribution of net profits to be in addition to the contract consideration of seven thousand nine hundred dollars each aforementioned and not to be construed a revocation or alteration of same, and to be divided when said company has received its consideration in full from the city of Philadelphia.
    It does not appear that either Harffey or Diamond ever acquired or exercised any powers of control over the performance of any portion of the work covered by the contract between the Nichols company and the city, except that part of the work described in the subcontract. As far as appears from the testimony, Harffey had no relation to the Nichols company except such as was created by his subcontract and such as was created by the contract above recited; and Diamond had no relation to the Nichols company except such as was created by the contract last mentioned and by his subcontract for stonework.
    . 5. On June 20,1899, the Nichols company entered into a written contract with the city for the construction of the schoolhouse for 164,900. On the same day the Nichols company as principal and the Union Surety and Guaranty Company as surety, executed and delivered the city a bond in the sum of 132,450, reciting the construction contract of even date, and conditioned as follows :
    “ That if the said Harry C. Nichols Company shall and will promptly pay or cause to be paid to any and all persons any and all sum or sums of money which may be due for labor and materials furnished and supplied or performed in and about the said work, and shall and will comply with all the.pro visions of the ordinance of select and common councils of the city of Philadelphia, entitled ‘ An ordinance for the protection of subcontractors as well as for persons furnishing materials and labor for the construction of buildings for the city of Philadelphia or any other city work,’ approved the thirtieth day of March, A. D. 1896 ; then this obligation to be null and void; otherwise to be and remain in full force and virtue.”
    The bond also contained the following provision :
    “It being understood and agreed that no suit shall be brought upon this bond after the expiration of two years from the date hereof.”
    This is the bond in suit.
    6. Both the Nichols company and Harffey duly entered upon the performance of their coutracts. In the course of such performance Harffey ordered bricks from Edmund Webster & Nephew, the plaintiffs. Before bidding on the work Harffey had applied to the plaintiffs for prices and had been quoted a price of $7.25 per thousand for hard bricks and $13.00 per thousand for re-pressed bricks. After the date of the contract between Harffey and the Nichols company, when Harffey gave an order for bricks, Edmund Webster, one of the plaintiffs, went to the office of the Union Surety and ■ Guaranty Company and was there told that as the Nichols company and Harffey had given bond for the completion of the schoolhouse, there would be sufficient money to erect the building and that all would be paid: “ All of us would get our money.” A price was accordingly made by the plaintiffs to Harffey somewhat more favorable than the price originally quoted, to wit.: $7.00 per thousand for hard bricks and $13.00 per thousand for re-pressed bricks. The bricks were ordered from time to time as they were needed. They were delivered by the plaintiffs at the schoolhouse. All the bricks specified in the plaintiffs’ statement were in fact so delivered and were used in the construction of the building.
    7. On December 18, 1899, the city of Philadelphia, by ordinance, duly approved the contract between the Nichols company and the city, and approved the Union Surety and Guaranty Company as surety upon the bond theretofore given by the Nichols company to the city.
    8. On or about January 15,1900, Harffey got into financial difficulties, and Diamond, his bondsman, completed the work under the subcontract. On or about said date Diamond filed with the Union Surety and Guaranty Company a form of notice or assignment, signed by Harffey, and authorizing Diamond to receive such sums as would otherwise be payable to Harffey. Such bricks as were delivered by the plaintiffs after that date appear to have been charged upon their books just as they had previously been, and they appear to have been consigned to Harffey. The exact relation between Harffey and Diamond does not seem to have been clear to the plaintiffs; but at least one of the partners in the plaintiff firm had notice during the continuance of the work that Diamond had taken up the Harffey contract.

      9. In March, 1900, the Nichols company stopped work under its contract with the city. Thereupon one Levin took up the work and completed it. Levin’s action in the matter is explained by the circumstances that he had made himself liable to indemnify the Fidelity and Deposit Company, which had in turn given a counter indemnity bond to the Union Surety and Guaranty Company in respect of the risk assumed by the last named company as surety upon the bond of the Nichols company to the city. On April 1, 1900, plaintiffs had delivered bricks of an aggregate price of $1,983.70, and they had received payments on account, one on “ 3/22/00 of 11,200 ” and one on “4/21/00 of $720.40,” making a total of $1,920.-40; so that the balance due the plaintiffs at the time of the abandonment of the work by the Nichols company was only $63.30. All the bricks for the price of which this suit is brought were (with the exception of the small balance just mentioned) delivered by the plaintiffs at the schoolhouse after the failure of the Nichols company. The contract price of the bricks so delivered, plus the balance due April 1, 1900, was $2,725.75, upon which the plaintiffs are entitled to interest from July 6, 1900 (the date of the delivery of the last order), provided the Union Surety and Guaranty Company is liable at all.
    10. Before issuing the writ in this cause, demand for payment was duly made by the plaintiffs upon the Nichols company, Harffey, and upon the Union Surety and Guaranty Company, and payment was refused. The plaintiffs also have furnished indemnity against costs to the city of Philadelphia in the sum of $100, as required by the ordinance of March 30,1896.
    11. After the testimony before the referee was closed and the cause had been submitted for his decision, counsel for the plaintiffs took a rule against Diamond to show cause why the judgment theretofore entered against him should not be opened. No cause having been shown, the rule was in due course made absolute. Counsel for plaintiffs then made to the referee a motion to amend the record by striking off the names of Harffey and Diamond as defendants.
    The referee allowed the amendment by striking out the names of James Harffey and Andrew Diamond.
    The referee found in favor of the plaintiff for $2,725.75.

      Errors assigned were in overruling exceptions to referee’s report.

      David Jay Myers, for appellant,
    cited: Dunbar v. Fleisher, 137 Pa. 85; Folz v. Trust, etc., Co., 201 Pa. 583; North v. Yorke, 174 Pa. 349; Reynolds v. Barnes, 76 Pa. 427; Urich v. Zern, 2 Pa. Dist. Rep. 55; Hunter v. Reilly, 36 Pa. 509; Kennedy v. McNickle, 7 Phila. 217; Rudolph v. Sturgis, 11 Pa. Dist. Rep. 395; Pentz v. Pentz, 6 Pa. Dist. Rep. 708; Overseers of Roxborough v. Bunn, 12 S. & R. 292; Krause v. R. R. Co., 4 Pa. C. C. Rep. 60; McPartland v. Railroad Co., 18 W. N. C. 79; Wildermuth v. Long, 196 Pa. 541; Garman v. Glass, 197 Pa. 101; Meyers v. Elkins, 7 W. N. C. 280; Freeland v. R. R. Co., 2 Pearson, 73; Kaiser v. Roberts, 5 Kulp, 459.

      Joseph A. Culbert and John G. Johnson, for appellee, were not heard.
    March 5, 1906:
   Opinion by

Mr. Justice Fell,

This action was on a bond given by the Harry C. Nichols Company, principal, and the Union Surety and Guaranty Company, surety to the city of Philadelphia, conditioned that the Nichols Company should pay all sums due for labor or materials supplied in the erection of a schoolhouse for the building of which the said company had entered into a contract with the city. The Nichols Company contracted with one Harffey for the brickwork for the building and the use plaintiffs furnished the bricks used under his contract.

At the trial before the referee chosen by the parties, three grounds of defense were relied upon: First, that an action on the bond could not be maintained by a party who furnished materials to a subcontractor;. second, that the surety was not liable for materials furnished after the subcontractor abandoned the work; third, that the misjoinder as defendants in the action of persons who are not obligors on the bond prevented a recovery and that an amendment could not be allowed.

The bond was given in pursuance of the ordinance of councils of March 30,1896, entitled “An ordinance for the protection of subcontractors as well as for all persons furnishing labor and materials for the construction of buildings for the city of Philadelphia or for any other city contracts,” which provides that any person entering into a contract with the city for the prosecution of any public work shall execute a bond to pay all persons supplying him “ with labor or materials, whether as subcontractor or otherwise, in the prosecution of the work provided for in such contract.” The ordinance authorizes anyone who has furnished “ labor and materials, either as a subcontractor or otherwise,” to bring suit on the bond in the name of the city to his use. The condition of the bond to pay “ any and all persons any and all sums of money which may be due for labor and material supplied or performed in and about the said work ” is more explicit than the requirement of the ordinance, but it is not broader than the purpose and scope of the latter. The bond having been voluntarily given, it may be enforced according to its terms, although it exceeds the requirements of the ordinance. The exact question here raised as to the construction of the ordinance was decided in Bowditch v. Gourley, 24 Pa. Superior Ct. 342, and we concur in the conclusion announced by that court that “ to sanction any other construction would be destructive of the very purpose of the ordinance by taking from the honest labor or material man the particular security which the city councils had provided for his protection.”

Both Harffey and the Nichols Company got into financial difficulties and Harffey’s contract was carried out by one who had become liable to indemnify his surety. After the failure of Harffey the use plaintiffs continued to furnish bricks consigned and charged to him, but with notice that his bondsman had taken up the contract. New contracts were not made but the original contracts were carried to completion by parties having an interest to do so. There was no change in the relation of the contracting parties. The work was done under the contracts either by or for the parties who had agreed to do it, and the Union Surety and Guaranty Company was not relieved from liability on its bonds.

The action was brought against the obligors named in the bond and against Harffey. Diamond was by amendment made a codefendant, and judgment was entered against him for want of an affidavit of defense. This judgment on his motion was opened and the record was amended by striking therefrom his name and that of Harffey after the expiration of the period specified in the bond as the limit of time in which suit could be brought. The writ was issued against the Nichols Company Harffey and the Union Surety and Guaranty Company as individuals, and Diamond was brought in as an individual defendant. The four defendants were not named in the statement as partners but it was averred in the statement that “ Harffey and Henry C. Nichols Co. formed a partnership with one Andrew Diamond for the purpose of erecting and constructing the said building.” This averment was erroneous and would have been useless if correct. But it did not charge the Union Surety and Guaranty Company as a partner, nor charge it as surety for a partnership. The amendment was therefore properly allowed. The cahse of action was the obligation of the bond. The striking out of the names of those defendants who had assumed no liability did not change the cause of action against the obligors, nor alter nor increase their liability, nor charge them in any other capacity than that in which they had been sued.

The judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Potter,

license: Public Domain

text:
    Sutton v. Pennsylvania Railroad Company, Appellant.

      Railroads — Eminent domain — Land damages — Evidence—Competency of witness — Instructions—Request for instructions.

    Witnesses are, competent to testify as to land values in railroad condemnation proceedings, where it appears that they are property owners, are well acquainted with the property under investigation, that they know what people are asking for property in the vicinity, and of the actual selling price of two or three properties, and that they had lived in the neighborhood for nearly twenty years, and had experience for a long period in appraising the values of properties for the purpose of making loans thereon.
    On the trial of a railroad condemnation case the trial judge cannot be convicted of error in failing to call the attention of the juiy to the assessed value of plaintiff’s property, based on the testimony of the township assessor who had held office for many years, where it appears that the railroad company did not ask for specific instructions as tó the weight to be given to the testimony of the assessor, or that the attention of the trial judge had been called to the omission to charge on this subject.
    In the absence of request the court will not be reversed for what is left unsaid, if what was said was not misleading.

      On the trial of an issue to assess damages for land taken by a railroad company for the purpose of widening its right of way, the defendant company is entitled to the affirmance of a point framed with the purpose of calling attention to the necessity for distinguishing between the results from the operation of the railroad at and before the time of the taking of the land in question, and those which might follow in increased measure from the future and enlarged operation of the road.
    A party is entitled to a distinct and responsive answer to his points if they are properly drawn, present questions that fairly arise, and can be answered by a simple affirmance or refusal.
    Argued Jan. 31, 1906.
    Appeal, No. 380, Jan. T., 1905, by-defendant, from judgment of C. P. Montgomery Co., June T., 1903, No. 192, on verdict for plaintiff in case of William Henry Sutton v. Pennsylvania Railroad Company.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Stewart, JJ.
    Reversed.
    Appeal from award of jury of view.
    The opinion of the Supreme Court states the case.
    Yerdict and judgment for plaintiff for $42,954.54. Defendant appealed.

      Errors assigned were (1, 2) in admitting the testimony of Joseph T. McClellan and Alfred Godwin; (3) in failing to call the jury’s attention to the assessed valuation of plaintiff’s property based upon the evidence of Charles Humphreys, who had been a real estate assessor for sixteen years; (4) answer to defendant’s second point, point and answer being as follows :
    2. If the plaintiff and his witnesses have failed to distinguish between the smoke, noise or dust, which may ensue exclusively from the new taking, and that which results from the operation of the railroad at the time of the present taking, plus that which may come from the increase of traffic on the present road as operated, then the jury have no basis upon which it may consider damages for smoke, noise or dust, as depreciating- the market value of the plaintiff’s property, and they may not allow one cent for speculative damages. Answer: The jury are not to allow anything for purely speculative damages; but, if, in this case, you find that, by reason of this new taking, there will be an increase of smoke, noise or dust, which majr depreciate the value of the plaintiff’s property, then you can take that into consideration, in connection with the other damages, not as an independent item of damage, but it is to be considered amongst other damages, if you shall find that any damage has been created, or is likely to be created, by the increased smoke, noise or dust.

      H. H. Larzelere, with him G. Henry Stinson, for appellant.—
    It was error to admit the testimony of plaintiff’s witnesses for value: Ry. Co. v. Vance, 115 Pa. 325; Michael v. Crescent Pipe Line Co., 159 Pa. 99; Struthers v. R. R. Co., 174 Pa. 291; Friday v. Penna. R. R. Co., 204 Pa. 405.
    The assessor’s testimony should have been properly presented to the jury: Peirson v. Duncan, 162 Pa. 187; Renn v. Tallman, 25 Pa. Superior Ct. 503; Herstine v. Lehigh Valley R. R. Co., 151 Pa. 244; Bisbing v. Third Nat. Bank, 93 Pa. 79; Penna. Canal Co. v. Harris, 101 Pa. 80.

      Montgomery Evans, with him John M. Dettra, for appellee.
    Plaintiff’s witnesses were qualified: Hope v. R. R. Co., 211 Pa. 401; Reed v. R. R. Co., 210 Pa. 211; Galbraith v. Philadelphia Co., 5 Pa. Superior Ct. 178; Jones v. R. R. Co., 151 Pa. 30; Hewitt v. R. R. Co., 19 Pa. Superior Ct. 304.
    March 5, 1906:
   Opinion by

Mr. Justice Potter,

This is an appeal from a judgment entered upon the verdict of a jury, in the trial of an appeal from an award of viewers in proceedings to assess damages for the taking of plaintiff’s land for railroad purposes.

The first and second assignments of error relate to the admission of the testimony of witnesses whose competency it is alleged was not established. Both these assignments are faulty in failing to refer to the pages of the paper-book where the matter may be found in its regular order in the printed evidence. The two witnesses whose competency is questioned were property owners in the vicinity and were well acquainted with the property in question. They did not claim to be experts, but said they were able to judge of the value of plaintiff’s property because they knew what people were asking for property and what they were willing to pay for it in the vicinity, and they also knew the actual selling price of properties in the neighborhood. It is true that each of them specified only two or three properties. But there was no cross-examination to test their further knowledge in this respect. It may be that further interrogation would have shown that they possessed a wider acquaintance with the values of specific properties. Both of the witnesses had lived in the neighborhood for nearly twenty years, and one of them had had an experience of nearly that length of time in appraising the values of properties for the purpose of making loans thereon. We cannot say that either of these witnesses fell short of the standard laid down in Friday v. Pennsylvania R. R. Co., 204 Pa. 405; Reed v. R. R. Co., 210 Pa. 211, and Hope v. R. R. Co., 211 Pa. 401. Their qualification for estimating intelligently the injury sustained by the plaintiff in this case would seem to have been quite up to the requirements held sufficient in Leiby v. Water Co., 205 Pa. 634, where two witnesses living in the neighborhood and familiar with the ground taken by defendant, but neither of whom could recall more than two actual sales, were held to be competent. These assignments are therefore not sustained.

The third assignment of error complains that the court below failed to call the attention of the jury to the assessed value of plaintiff’s property, based on the testimony of the township assessor, who had held that office for sixteen years. The court did, however, in the course of the charge, call attention in a general way to the qualifications of the witnesses and pointed out that it was the special business of some of them who were real estate agents, to be informed as to the value of lands in the vicinity. Reference was also made to other witnesses who were not experts but who owned lands in the neighborhood. It is suggested in the argument that the defendant’s witness, Humphreys, who had been the township assessor for many years, was such a specially well qualified and disinterested witness as to the value of plaintiff’s land, that the omission of the court to refer in any way to his testimony must have seriously prejudiced the defendant’s case. The trial judge might very well have called the attention of the jury to the special qualifications of this witness, whose training and observation had apparently fitted him to speak accurately with regard to the value of the land. The propriety of a similar instruction was upheld in Heilbruner v. Wayte, 51 Pa. 259, which was an action to recover the price of timber sold. There a public measurer was called as a witness to the condition of the timber when delivered. The court charged that “ The measurer is generally a sworn officer, and what he does is to be taken at least as prima facie evidence that his measurement was correct.” The action of the court in that case, in impressing upon the jury the idea that the testimony of the public measurer was of more value than the testimony of other witnesses, was assigned as error, but this court dismissed the assignment and affirmed the judgment. At the trial of the present case the defendant did not ask for specific instructions as to the weight to be given to the testimony of the assessor, nor does it appear that the attention of the trial judge was called to the omission to charge on this subject. If specific instructions upon this point were desired, they should have been asked for. “ In the absence of request the court will not be reversed for what is left unsaid, if what was said was not misleading : ” Ott v. Oyer, 106 Pa. 6.

The fourth assignment of error complains of the refusal of a point in which the trial judge was asked to instruct the jury as to the weight to be given to the testimony of plaintiff’s witnesses as to damages resulting from smoke, noise and dust. The point submitted appears to have been a proper one, as it called attention to the necessity for distinguishing between the results from the operation of the railroad at and before the time of the taking of the land in this case, and those which might follow in increased measure from the future and enlarged operation of the road. The answer of the trial judge was not responsive to this point, as he merely instructed the jury that they might consider the probable increase of smoke, noise and dust in connection with the other damages. But the intention of the point as presented, was evidently to cause the jury to scrutinize the evidence of the witnesses, to see whether, in making their estimate of damages, they had distinguished between the injuries resulting from the operation of the road as it had been conducted, and those which would be caused by the operation of the road under the new construction. This was a proceeding to widen the roadbed, and in so far as damages from smoke, dust and noise were concerned, it was only the increased burden in this respect, caused by the operation of the widened roadway, which could be considered. If the witnesses had failed to make this distinction, as was suggested in the point, then the basis upon which they estimated that portion of the damages was incorrect. The credibility of the witnesses was for the jury and the instruction asked for was intended to remind the jury that, before accepting the estimate of the witnesses, they must be satisfied that in so far as it related to smoke, noise and dust, it was confined exclusively to those resulting from the new taking. In any view of the case, the defendant was entitled to a direct answer to this point, and the failure of the court to give it was error. Chief Justice Tilghmait said in Smith v. Thompson, 2 S. & R. 49 (51) : “ When a question is distinctly proposed to the court, the party proposing it is entitled to a distinct answer, and it is error to refuse or evade it. This is a rule of very great importance.” Again, in Whitmire v. Montgomery, 165 Pa. 253 (261) Justice Fell says, “ The rule is that a party is entitled to a distinct and responsive answer to his points if they are properly drawn, present questions that fairly arise, and can be answered by a simple affirmance or refusal.”'

The fourth assignment of error is therefore sustained, and the judgment is reversed with a venire facias de novo.


author: Pee Curiam,

text:
    Ritter, Appellant, v. Knerr.

      Will — Devise—Construction of will — Vested and contingent estates.

    Testatrix left the residue of her estate in trust with the intent of keeping it “intact” until after the death of her husband, and to pay one-half of the income to him during the joint lives of her son and husband, and to the latter in prescribed proportions according to circumstances, should the son die first. By a subsequent clause she directed that after the death of her husband all of the estate “and the income accruing therefrom, shall descend to my son.” “Should, however, my son die before my husband all the estate shall remain intact until after the death of my husband.” Then followed a different division of the income varying according to the survivorship of testatrix’s grandchildren. In a subsequent clause she provided that after the death of the husband and the son the estate should remain in trust and the income “shall be for the use of the legitimate children of my son.” The son died before the father. Held, (1) that the estate devised to the son was contingent on his surviving his father, and as he died first it never vested; (2) that on the death of the father the estate passed under a dry trust to the son’s children.
    Argued Jan. 31,1906.
    Appeal, No. 16, Jan. T., 1906, by plaintiff, from judgment of C. P. Lebigh Co., Jan. T., 1906, No. 59, on case stated in suit of Emily May Ritter and M. P. Schantz, executors of J ohn H. Ritter, deceased, v. Harvej»- PI. Knerr.
    Before Mitchell, C. J., Brown, Mbstrezat, Potter and Stewart, JJ.
    Affirmed.
    Case stated to determine marketable title to real estate. Before Trexler, P. J.
    ■ From-the record it appeared that plaintiffs claimed that under the will of Rachel E. Ritter, John Ploward Ritter took an estate in fee simple, and that under a power of sale contained in the will of John Howard Ritter, they had a right to sell the property in question.
    ■ The material portions of the will of Rachel E. Ritter are as follows :
    “ 2. All my other property real or personal, shall remain undivided between my husband, Lewis Ritter, and my son, John Howard Ritter. . . .
    “ The income accruing from said estate, real or personal, after all annual current expenses are paid, shall be divided equally between my husband, Lewis Ritter, and my son, John Howard Ritter.
    “4. After the death of my husband, Lewis Ritter, all of the estate, real or personal, and the income accruing therefrom shall descend to my son, J ohn Ploward Ritter.
    “5. Should however, my son, John Howard Ritter, die before my husband, Lewis Ritter, all the estate, real or personal, shall remain intact until after the death of my husband, Lewis Ritter. My husband, Lewis Ritter, shall have for his use the three-fifths of the income and my granddaughter, Emily May Ritter, if she lives, two-fifths of the income after all current yearly expenses of said estate have been paid. Provided, That should my granddaughter, Emily May Ritter, die before her father, John Howard Ritter, or her grandfather,- Lewis Ritter, my husband, then four-fifths (4-5) of the income shall be for the use of my husband, Lewis Ritter, and one-fifth (1-5) of the income to my grandson, Howard Edward Ritter, son of my son, John Howard Ritter. Provided, That should my grandson, Howard Edward Ritter die before my husband, Lewis Ritter, then the entire income of said estate, real or personal, shall be for the usé of my husband, Lewis Ritter, during his natural life. Provided also that this article shall not affect the provisions of article fourth.
    “ 6. After the death of my husband, Lewis Ritter, and my son, John Howard Ritter, all remaining estate, real or personal, if any, shall remain in trust and the income of'which shall be for the use of the legitimate children of my son, John Howard Ritter, to be divided equally.”
    The court entered judgment for defendant on the case stated.

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

      Francis G. Lewis, for appellants.

      James L. Schaadt, with him Charles W. Kaeppel, for appellee.
    March 5, 1906:
   Pee Curiam,

The testatrix left the residue of her estate in trust, the dominant intent of which is unquestionably to keep the estate “ intact ” until after the death of her husband, and to pay one-half of the income to him during the joint lives-of her son and husband, and to the latter in prescribed proportions according to circumstances, should the son die first.

By the fourth clause of the will, after the death of the husband all of the estate “ and the income accruing therefrom, shall descend to my son,” etc. This meant a fee to the son, but it was contingent on his surviving the husband, for the very next clause is “should however, my son die before my husband all the estate shall remain intact until after the death of my husband,” and thereupon follows a different division of the income varying according to the survivorship of testatrix’s grandchildren. Then in the sixth clause it is provided that after the death of the husband and son the estate shall remain in trust and the income “ shall be for the use of the legitimate children,of my son.” The estate devised to the son, John H. Ritter, was therefore contingent on his surviving his father, and as he died first it never vested. On the death of his father, testatrix’s husband, the estate passed under a dry trust to J ohn’s children. J ohn’s executors had no title to convey and the judgment was rightly entered for the defendant on the case stated.

Judgment affirmed.


text:
    Hughes v. Fayette Manufacturing Company, Appellant.

      Negligence — Master and servant — Dangerous machine — Notice ip employer.

    Where an employee in a brick manufacturing establishment notices sparks flying from a wheel at which he is at work, and also that the wheel makes a screeching noise, and he complains to the superintendent that he does not like the looks of things, and the superintendent tells him to go ahead with his work, that there is no danger, and that he, the superintendent, would have the wheel fixed, the employer will be liable for personal injuries sustained by the employee by the subsequent breaking of the wheel while the employee continues to work at it.
    A servant is not entitled to have his ease submitted to the jury, unless he introduces, in addition to the fact of the occurrence of the accident, some specific testimony which fairly tends to show that the employer was guilty of negligence. In the absence of such testimony the case must obviously fall within the operation of the principle that an action is not maintainable where the plaintiff’s evidence is equally consistent with the absence or with the existence of negligence. This rule, however, does not imply that it is only from direct evidence that the master’s culpability can be inferred. The burden of proof is satisfied by the production of circumstantial evidence.
    Argued Feb. 7, 1905.
    Reargued Feb. 5, 1906.
    Appeal, No. 283, Jan. T., 1904, by defendant, from judgment of C. P. Delaware Co., June T., 1903, No. 78, on verdict for plaintiff in case of Samuel S. Hughes v. Fayette Manufacturing Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ., on reargument.
    Affirmed.

      Trespass to recover damages for personal injuries. Before Johnson, P. J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    . Towards the conclusion of the plaintiff’s case, counsel for plaintiff made the following offer:
    Mr. Alexander: If your honor please, just one minute. I would like to offer in evidence the Carlisle tables to show the expectancy to us.
    Mr. Schaffer: They are objected to.
    The Court: Objection overruled.
    Mr. Schaffer: Will your honor grant me an exception?
    The Court : Yes. They are slight evidence. [6]
    Defendant presented these points :
    1. The allegata and probata in the case not being in agreement, the verdict must be for the defendant. Answer: Refused. [3]
    2. Under all the evidence in the case, the verdict must be for the defendant. Answer: Refused. [4]
    Verdict and judgment for plaintiff for $5,378.62. Defendant appealed.

      Errors assigned were (2) in entering judgment on verdict for plaintiff; (3, 4) answer to points; (5) in charging that “ To entitle this plaintiff to recover he must be free from negligence himself, because if he materially contributed by his conduct to this accideirt he cannot recover; ” (6) ruling on evidence, quoting the bill of exceptions.

      William I. Schaffer, with him John A. Poulson and Maurice W Sloan, for appellant.
    The master must know of the danger; he must know not that the conditions exist, but that they involve danger to the servant to be held liable: Labatt on Master and Servant, 260; Snodgrass v. Carnegie Steel Co., 173 Pa. 228; Corcoran v. Wanamaker, 185 Pa. 496.
    The doctrine res ipsa loquitur, dangerous and uncertain at best, is never to be applied except where it not only supports the conclusion contended for, but also reasonably excludes every other: Allen v. Kingston Coal Co., 212 Pa. 54.

      We are unable to reconcile tbe case in hand with the cases of which Alexander v. Pennsylvania Water Co., 201 Pa. 252; Augerstein v. Jones, 139 Pa. 183; Simpson v. Locomotive Works, 139 Pa. 245, are examples, and we respectfully suggest that it may extend the doctrine in Reese v. Clark, 198 Pa. 312, to very dangerous limits in the administration of the law of negligence.
    It is not permissible to guess at the cause of an injury, and assume it something for which defendant was responsible: Reese v. Clark, 146 Pa. 465; Oil Company v. Torpedo Company, 190 Pa. 350.
    A theoretical cause will not suffice to explain an accident: McClain v. Henderson, 187 Pa. 283; Benson v. Allegheny Heating Co., 188 Pa. 614; Mixter v. Imperial Coal Co., 152 Pa. 395; Wagner v. Traction Co., 212 Pa. 132.
    The true rule would seem to be that a promise to repair by a superintendent is only binding upon the employer where the law imposes the duty irrespective of the promise. If the law does not impose the duty a vice principal cannot impose it: Leonard v. Herrmann, 195 Pa. 222; Diehl v. Lehigh Iron Co., 140 Pa. 487; Lehman v. Carbon Steel Co., 204 Pa. 612.
    The allegata and probata must agree in cases of tort as in other cases: Goodman v. Coal Township, 206 Pa. 621; Wiest v. Electric Traction Co., 200 Pa. 148; Noonan v. Pardee, 200 Pa. 474; Wilkinson Mfg. Co. v. Welde, 196 Pa. 508; Ryder v. Jacobs, 182 Pa. 624; Ubelmann v. American Ice Co., 209 Pa. 398.
    Any contributory negligence on the part of the plaintiff defeats his right to recover: Monongahela City v. Fischer, 111 Pa. 9; Oil City Fuel Supply Co. v. Boundy, 122 Pa. 449; Long v. Milford Township, 137 Pa. 122; Mattimore v. Erie, 144 Pa. 14.
    To admit the Carlisle tables in the way in which they were admitted without any explanation from the court as to what they were and without any caution from the court to the jury as to the weight to be given them as evidence, was error: Kerrigan v. Pennsylvania R. R. Co., 194 Pa. 98; McKenna v. Citizens’ Natural Gas Co., 198 Pa. 31; Emery v. Phila., 208 Pa. 492; Iseminger v. York Haven Water & Power Co., 209 Pa. 615.

      An employee who continues in the employment which by reason of defective machinery or appliances he knows to be dangerous assumes the risk of any accident that may result therefrom: Talbot v. Sims, 213 Pa. 1.

      William C. Alexander, for appellee.
    The real question is, did the chain of circumstances, testified to by the plaintiff and his witnesses in this case, raise- an inference of negligence on the part of the defendant ? If it did, then the burden was on the defendant to overcome that inference, and whether the evidence of the defendant did overcome that inference, was a question for the jury: Folk v. Schaeffer, 186 Pa. 253.
    The case at bar is ruled as to the question of negligence on the.part of the defendant by: Sopherstein v. Bertels, 178 Pa. 401; O’Brien v. Sullivan, 195 Pa. 474; Calhoun v. Holland Laundry Co., 208 Pa. 139.
    There was a duty resting upon the company to know, as far as it was possible to know, the character of the material which it placed in the hands of its agents: Tissue v. B. & O. R. R. Co., 112 Pa. 91; Wagner v. Jayne Chemical Co., 147 Pa. 475; Shearman & Redfield on Negligence, sec. 185 et seq.
    A servant is not called upon to set up his own unaided judgment against that of his superiors. His dependent and inferior position is to be taken into consideration and if the master gives him positive orders to go on with the work under positive circumstances, the servant may recover for an injury thus incurred, if the work was not inevitably or imminently dangerous: Patterson v. P. & C. R. R. Co., 76 Pa. 389; Wagner v. Jayne Chemical Co., 147 Pa. 475; Reese v. Clark, 198 Pa. 312; Calhoun v. Holland Laundry Co., 208 Pa. 139.
    March 5, 1906:

      Owing to my being of counsel; the report of this case was prepared by Albert B. Weimer, Esq., Assistant State Reporter. — Wm. I. Schaffer, State Reporter.

   Opinion by

Mr. Justice Potter,

The plaintiff was employed as a brick molder in the works of the defendant company. He worked at a table in the mixing room which was near the machinery by which the material used to manufacture the bricks was broken and ground. This consisted of a pan set on the floor in which heavy rollers were revolved by means of a vertical shaft in the center of the pan. The shaft was attached to a horizontal wheel some eight feet from the floor, and this wheel weighed over 1,900 pounds and was some five and a half feet in. diameter. The wheel was 'furnished with cogs and teeth, and was operated by another cogwheel connected by a shaft with the electric power. While in operation this wheel turned slowly, making only about thirty-eight revolutions per minute.

On March 27, 1903, while the machinery was in operation, plaintiff noticed that sparks were flying from the crown wheel and also that it was making a screeching noise. He had noticed the sparks the afternoon before, and had then spoken to his brother, Edwin Hughes, who worked in the same room, about it; and the latter testified that “ The machinery was not working quite in order.” Both the plaintiff and his brother testified that shortly after Mr. Griffith, the superintendent of the mill, came in, and they both called his attention to the sparks flying from the wheel, and the plaintiff said, “ That wheel there did not look quite right to me; ” and that he did not care about working at the pan. Griffith told him to go ahead; that there was no danger, and that he would have it fixed. Two other witnesses, also workmen in the mill, William Smith and Geoi-ge A. Rice, testified that they saw fire flying from the cogs of the wheel both on March 27, and on the previous afternoon. After the alleged conversation with Griffith, the superintendent, plaintiff went back to his table and continued to work. In about half an hour, the crown wheel broke into three pieces, one of which fell upon his leg inflicting serious and permanent injuries.

There was no positive evidence as to the cause of the breaking of the wheel. Edwin Hughes testified that immediately after the accident the upright shaft on which the cogwheel worked was out of plumb. He also said that the cogs in the crown wheel were cut down to about a half inch all the way around — “ just tapered to a sharp point, and sometimes knocked off. They were worn right down in one another.” The witness Smith testified that after the accident some of the cogs on the broken wheel were all ripped off. From this testimony it was argued that the breaking of the wheel was caused by the shaft being out of plumb which resulted in increasing the friction upon the cogs. There was no direct testimony that the shaft was out of plumb befdre the accident, but the evidence was such that the jury might infer that it was. The defendant offered testimony to show that the wheel frequently emitted sparks, that this was caused by dust and gritty substances coming in contact with the wheel and cutting the grease; that sparks were never considered a sign of danger, but merely that the wheel needed oiling;. that this wheel was new, and had -been purchased from manufacturers of high standing; that the upright shaft was not perfectly rigid and could not have been operated if it had been, b.ut worked in a socket; that only one cog was broken, that the cogs were not broken in such a way as to indicate that they had been worn down before the breaking of the wheel; and that the broken wheel showed no defect in it that might have caused it to break.

The court below reserved the question of law, “ Has any evidence been submitted which entitled the plaintiff to recover ? ” The jury found for the plaintiff, and the court subsequently refused to enter judgment for the defendant on the point of law reserved, and did enter judgment for the plaintiff on the verdict. This action is assigned as error; as is also the refusal of the court to give binding instructions for the defendant.

If the evidence of sparks from the machine were the only thing in the case, there should have been no submission to the jury, as the mere absence of oil, or the presence of particles of dust will cause sparks to fly, as was shown by uncontradicted evidence. But there was much more in the case than this. The plaintiff testified that the wheel was making a screeching noise on the day of the accident, as well as emitting sparks ; and he complained to the defendant’s superintendent that lie did not like the looks of things, and was averse to continuing his work at that point. . In reply, the superintendent told the plaintiff to go ahead with his work, that there was no danger, and that he would have it fixed.

In view of the evidence of the screeching noise, and the fact that so many witnesses noticed the fire flying, it would seem that there was more friction in the working of the machinery than usual, and that it may have indicated more serious trouble than the mere lack of oil or the presence of dust. We do not feel that we can say as a matter of law that the jury were not justified, in finding that the defendant was negligent in failing to examine and readjust the machinery, when complaint of its improper working was made. It will not do to hold that in such cases as this, the plaintiff must make an absolute explanation as to the actual cause of the accident. The reason for the breakage of machinery which is run under heavy strain, is oftentimes obscure, and it would seem that where, as in this case, the operation of the machine was so obviously abnormal as to frighten experienced workmen, the jury might be justified in saying that the defendant was negligent in ordering the plaintiff back to work without stopping the machinery and having a careful examination made, in order to detect the cause of the trouble.

A true statement of the rule applicable to such circumstances is, we think, set forth in 2 Labatt on Master and Servant, sec. 835, as follows : “ A servant is not entitled to have his case submitted to the jury, unless he introduces, in addition to the fact of the occurrence of the accident, some specific testimony which fairly tends to show that the employer was guilty of negligence. In the absence of such testimony the case must obviously fall within the operation of the principle that an action is not maintainable where the plaintiff’s evidence is equally consistent with the absence or with the existence of negligence. This rule, however, does not imply that it is only from direct evidence that the master’s culpability can be inferred. The burden of proof is satisfied by the production of circumstantial evidence.”

As we said in Folk v. Schaeffer, 186 Pa. 253, “ under the circumstances shown by the plaintiff, the burden was thrown on the defendant to show that due care had been used, and in the absence of any explanation the jury might infer want of care.”

There is nothing in the evidence as we view it, to justify any charge of contributory negligence against the plaintiff, so that the instruction of the court in this, respect was not material, and while counsel for plaintiff signified his wish to offer in evidence the Carlisle tables, yet it does not appear that they were used in any way, before the jury; therefore, the complaint that the court failed to point out their proper office, and the limitations upon their use, is not well founded. We are satisfied that upon the whole record, this case was forthe jury, and we do not find any reversible error in the manner of its submission.

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


text:
    National Bank of Phœnixville, Appellant, v. Buckwalter.

      Promissory notes — Joint makers — Limitation of liability — Joint action.

    The indorsee of a promissory note cannot maintain a joint action against the ten makers of the note, where the note on its face states that the liability of each of the makers is limited to one-tenth of the amount of the note.
    Argued Feb. 5, 1906.
    Appeal, No. 242, Jan. T., 1905, by plaintiff, from order of C. P. Chester Co., Jan. T., 1905, No. 73, refusing to take off nonsuit in case of The National Bank of Phoenixville v. E. L. Buckwalter et al.
    Before Mitchell, C. J., Fell, Brown, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on a promissory note. Before Hemphill, P. J.
    At the trial the court entered a compulsory nonsuit. On a motion to take off the nonsuit Hemphill, P. J., filed the following opinion:
    Upon the trial of this case a nonsuit was entered because of the misjoinder of the parties defendant. The obligation upon which suit was brought read as follows: .
    “ $3,500. Phcenixville, Pa., January 11, 3 902.
    “ Six months after date we promise to pay to the order of the Tuxedo Pottery Company of Phoenixville, Pa., at the National Bank of Phcenixville, thirty-five hundred dollars, without defalcation, value received.
    “ It is agreed and distinctly understood, that each of the undersigned is to be liable for only one-tenth of the above amount, viz: three hundred and fifty dollars ($350). This obligation is given as collateral security for notes discounted by said bank for said Pottery Company or any renewals thereof to an amount not exceeding 13,500, and to remain in force as long as any of said notes are unpaid.”
    Then follow the signatures of E. L. Buckwalter and nine others, all of whom were sued jointly in this action.
    The general rule of law is thus stated in 1 Parsons on Contracts, page 11: “ Whenever an obligation is undertaken by two or more or a right given to two or more, it is the general presumption of law that it is a joint obligation or right. Words of express joinder are not necessary for this purpose ; but, on the other hand, there should be words of severance, in order to produce a several responsibility or a several right.”
    So that had the writing terminated with the words, “ value received,” being the usual formal language of a promissory note, the presumption of law would have been that the obligation was joint. But when further on it expressly states that, “ it is agreed and distinctly understood that each of the undersigned is to be liable for only one-tenth of the above amount ” —$350—these are words of severance and make the responsibility of the signers several and not joint.
    Consequently they could not be held liable in the present suit, as a verdict and judgment for the full amount, $3,500, against each and all, while the liability of each is distinctly stated to be but the one-tenth of that sum. Again, if this were a joint obligation, and nine of the obligors should become insolvent, the remaining obligor would be responsible for the whole amount, which' would be contrary to the agreement.
    A case directly in point is Costigan v. Lunt, 104 Mass. 217, where Costigan agreed to build a boat for Lunt and Cummings for a certain sum, each to pay his one-half; and it was held, that the contract was not joint but several, the court saying: “ His contract was to build a boat for them, and when finished it was to belong to them as tenants in common. But their promise to pay for it is several and not joint. It is true that they expressed themselves in the plural number and use the expression, ‘ we will pay,’ in reference to the several installments that were to become payable at various stages and upon the final completion of the contract. But the terms of this promise must be considered as qualified by the stipulation that each of the defendants is to pay one-half of the entire price in installments. Taking the whole instrument together, it must be interpreted as providing that each defendant shall pay one-half of each installment, as it becomes due, and no more. . . . It is very plain that no judgment could be rendered against the two jointly for any installment, without rendering them jointly and severally liable for the amount and making each to that extent a surety for the other, and for that reason the plaintiff is not entitled to such a judgment.”
    A careful consideration of the case and examination of the authorities has satisfied us that we were right in holding upon the trial that the liability of the defendants was several and not joint, and that consequently there could be no recovery against them in the present action.
    We must therefore refuse to take off the nonsuit and dismiss the rule.

      Error assigned was refusal to take off nonsuit.

      Wm. M. Hayes, with him I N. Wynn, for appellant.

      H. H. Giilkyson, Thomas W. Pieroe and J. Frank E. Hause, for appellees.
    March 5, 1906:
   Pee Curiam,

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


text:
    Downing, Appellant, v. Coatesville Borough.

      Negligence — Boroughs—Streets—Dedication of street — Acceptance by municipality.

    No recovery can be had from a borough for personal injuries sustained by a fall in a hole in a street where it appears that the portion of the street in which the hole was located had been dedicated to public use by an adjoining landowner for his own convenience, but had never been accepted by the borough as a public street.
    Argued Feb. 5, 1906.
    Appeal, No. 263, Jan. T., 1905, by plaintiff, from order of C. P. Chester Co., Jan. T., 1905, No. 74, refusing to take off nonsuit in case of Annie S. Downing v. Coatesville Borough.
    Before Mitchell, C. J., Fell, Beown, . Elkin and Stewaet, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Hemphill, P. J.
    From the record it appeared that plaintiff was • injured by falling in a hole on a sidewalk in the borough of Coatesville. There was evidence that the portion of the street in which the hole was located had been thrown- open to public use by a former owner of an adjoining property, but there was no evidence that the strip in question had been accepted as a public street by the borough.
    - The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refusal to take off .nonsuit.

      Granville L. Rettew, for appellant,
    cited: Com. v. Moorehead, 118 Pa. 344; Com. v. Shoemaker, 14 Pa. Superior Ct. 194; Com. v. Llewellyn, 14 Pa. Superior Ct. 214; Root v. Com., 98 Pa. 170; Com. v. Cole, 26 Pa. 187; Murray v. Wilkes-Barre Lace Mfg. Co., 10 Kulp, 566; People v. Loehfelm, 102 N. Y. 1; Green v. Town of Canaan, 29 Conn. 157; City of Hammond v. Maher, 30 Ind. App. 286.

      Alfred P. Reid, for appellee,
    cited: Com. v. Moorehead, 118 Pa. 344; Steel v. Huntingdon Borough, 191 Pa. 627; Com. v. Shoemaker, 14 Pa. Superior Ct. 194; Com. v. Cole, 26 Pa. 187; Washington Borough v. Steiner, 25 Pa. Superior Ct. 392; Com. v. R. R. Co., 135 Pa. 256; Root v. Com., 98 Pa. 170; Com. v. Royce, 152 Pa. 88; Verona Borough v. R. R. Co., 152 Pa. 368; Weiss v. South Bethlehem Boro., 136 Pa. 294.
    March 5, 1906:
   Pee Curiam,

The learned judge below conceding that throwing open a strip of his lot as a part of a street to' the public for a number of years, may amount to dedication to public use as against the owner, nevertheless states accurately the rule that such action by the owner cannot of itself make the land part of the street so as to bind the municipality. Some act of acceptance on the part of the municipality must be shown before it can be held liable for failure to keep in repair, etc., citing: In re Alley in Pittsburg, 104 Pa. 622; Com. v. Moorehead, 118 Pa. 344, and Steel v. Boro. of Huntingdon, 191 Pa. 627.

. ' Applying this rule to the facts before him the judge said: “ In our case there was no evidence whatever of the acceptance of this sidewalk by the borough by either act or deed; it apparently was thrown -open to the public street by Miss Perkins for the convenience and accommodation of her tenants, for on her property immediately north where she resides, she still retains her fence along the eastern side of the roadway.” This amply sustains the nonsuit.

Judgment affirmed.


author: Peb Curiam,

text:
    Griffith, Appellant, v. West Chester Street Railway Company.

      Negligence — Street railways — “Stop, look and listen” — Collision between car and wagon — Nonsuit.
    In an action against an electric railway company it appeared that plaintiff approached a grade crossing driving a wagon at the rate of five miles an hour. A car going at the rate of twelve to fifteen miles an hour struck the wagon and plaintiff was injured. It appeared that if plaintiff had looked when as far distant from the track as 100 feet he could have seen the fully lighted approaching ear, or if he did not look then, and when at any other substantial distance from the track, he had begun to look and continued to look, he must have seen the approaching car and have avoided the accident. Held, that a nonsuit was properly entered.
    Argued Feb. 6, 1906.
    Appeal, No. 276, Jan. T., 1905, by plaintiff, from order of C. P. Chester Co., Jan. T., 1905, No. 100, refusing to take off nonsuit in case of Joseph S. Griffith v. West Chester Street Railway Company.
    Before Mitchell, C. J., Fell, Brown, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Butler, J.
    At the trial the court entered a compulsory nonsuit.

      On a motion to strike off the nonsuit the following opinion was filed by Butler, J.
    We will sustain the motion for a nonsuit. It appears from the evidence that the railway track runs along the southern side of a large field, and that Bradford avenue extends along the eastern side of the same field, Bradford avenue intersecting the track just outside the southeastern corner of the field. This field in its contour, as it lies between the track and Bradford avenue, presents no obstacle to a view. So far as the intervening ground is concerned, a traveler on Bradford avenue approaching the crossing when distant from it some 800 or 400 feet, has an unbroken view from the crossing up the track some 300 or 400 feet; and this view of the track continues unbroken as the traveler approaches the track and makes the crossing. There is along the track a four-foot fence with some vines growing on it, and there is along Bradford avenue a line of maple trees about as high as a telegraph pole and situated about two panels of fence or twenty feet apart.
    The accident occurred on the evening before Thanksgiving. It is admitted that the ear which caused the accident was properly and fully lighted. The plaintiff said that when about 200 feet from the crossing, he being on Bradford avenue, he saw a car cross the avenue. He then drove on, and when his horse, going at about five miles an hour, was within a few feet of the track, he saw a second car coming from the Avest, within forty or fifty feet of the crossing; that he was unable to stop his horse, and the accident thus occurred. The car Avhich caused the accident was traveling at from twelve to fifteen miles an hour. The plaintiff was traveling some five miles an hour. When the plaintiff was as much as 100 feet from the crossing, the car which struck him must have been about 300 feet from the crossing. There was nothing then between the plaintiff and the car, which it is claimed could obstruct his view, excepting the four-foot fence along the track and the maples along Bradford avenue, some twenty feet apart, and as nearly free of leaves as they must have been so late as the day before Thanksgiving. We think it entirely clear, therefore, that if the plaintiff had looked in the most casual Avay when as far distant from the track as 100 feet, he must have seen the fully lighted approaching car, or if he did not look then, and when at any

      other substantial distance from the track he had begun to look, and continued to look, he must have seen the approaching car and have avoided the accident. Because we think it entirely clear and indisputable that if he had looked, he must have seen and avoided the car, the conclusion irresistibly follows that he did not look, and that the accident was, therefore, as a matter of law, to be declared by the court, contributed to by negligence on his part. The fact that he saw a car make the crossing when he was 200 feet distant, and that he supposed there would be no other car soon following, might have relieved the plaintiff from some degree of vigilance that otherwise would have been required, but we think it did not relieve him from the obligation of observing, in a general way at least, the track to the west until he reached arid made the crossing. That was the only direction in which danger could come, as the road was but a single track, and, therefore, no car could come from the east, the direction in which the first car had gone.
    For the reasons given we sustain the motion for a nonsuit.
    We may further add, that it is not free from question whether the plaintiff was not guilty of contributory negligence, if the view of the track to the west was unobstructed until he came near it, in undertaking to make the crossing driving at the rate of five miles an hour. We are much inclined to think it was his duty, as it is the duty of everyone about to cross a railway track, where a view may be had of the track for some distance before reaching it, to approach it at such speed that the horse will be under control and may be stopped short of the track if occasion demands.

      Error assigned was refusal to take off nonsuit.

      W. S. Harris, for appellant.
    No paper-book nor argument for appellee.
    March 5, 1906:
   Peb Curiam,

The judgment is affirmed on the opinion of the court below in entering the nonsuit.


author: Per Curiam,

text:
    Farrell, Appellant, v. Coatesville Borough.

      Boroughs — Contracts—Borough engineer — Parol evidence — •Evidence.
    Where a bid for a borough sewer and a contract based thereon contain no reference to rock excavation, and both bid and contract have been approved by the borough council, the contractors cannot subsequently allege that they were induced to execute the contract by the assurances of the borough engineer who prepared it, that the rock excavations would be paid for at the established and usual rate.
    Argued Feb. 6, 1906.
    Appeal, No. 324, Jan. T., 1905, by-plaintiff, from order of C. P. Chester Co., Jan. T., 1905, No. 77, refusing to take off nonsuit in ease of M. & T. E. Farrell v. Coatesville Borough.
    Before Mitchell, C. J., Fell, Brown, Elion and Stewart, JJ.
    Affirmed.
    Assumpsit on a sewer contract. Before Hemphill, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit.

      J. Franh E. Hause, for appellants,
    cited: Ferguson v. Rafferty, 128 Pa. 337; Cummins v. Ins. Co., 197 Pa. 61; Schweyer v. Walbert, 190 Pa. 334.

      Alfred P. Reid, for appellee,
    cited: Fisher v. South Williamsport Boro., 1 Pa. Superior Ct. 386; Malone v. Philadelphia, 147 Pa. 416; O’Malley v. Olyphant Borough, 198 Pa. 525; Dougherty v. Norwood Boro., 196 Pa. 92; Drhew v. Altoona, 121 Pa. 401; Milford Borough v. Milford Water Co., 124 Pa. 610; O’Rourke v. Philadelphia, 13 Pa. Dist. Rep. 379; U. S. Water Works Co. v. Du Bois Boro., 176 Pa. 439; Booser v. Steelton Borough, 25 Pa. C. C. Rep. 820.
    March 5, 1906:
   Per Curiam,

This is apparently a hard case for appellants, but we are unable to see that they have fixed any legal liability on the defendant. Whether from a misunderstanding as to what was to be paid for, as plaintiffs’ testimony would indicate, or from an error of judgment as to the probability of encountering rock in the proposed work, as the borough engineer’s testimony suggests, the fact is beyond question that the written contract made no reference to rock excavation. Appellants rely upon the view that rock excavation was omitted because the price for such work was fixed by the borough itself in its original specifications for bidders, was never the subject of any question, and therefore never included in any competitive bids, and when the writing was tendered to them for signature they objected that nothing was said about rock and were induced to waive the objection and execute the contract by the assurances of the borough engineer that the rock excavation would be paid for at the established and usual rate. Counsel therefore base this action “ upon the principle that where a written contract has been signed, and, at the time of its signing, it was mutually agreed that a certain thing should not be included or considered as included in the contract, testimony is properly admissible to determine the question as to what the contract was intended to include,” citing Ferguson v. Rafferty, 128 Pa. 337, and Cummins v. Ins. Co., 197 Pa. 61.

It may be conceded that if the negotiations had been between the parties the testimony on this point would have been sufficient to carry the ease to the jury. But appellants dealt only with Book, the borough engineer, who was not a party but an agent with limited authority. Under the original advertisement the council had called for bids to include materials and labor jointly, and, inter alia, rock excavation at the set price of |3.00 per cubic yard. None of the bids under this call were accepted and the council then decided to furnish the materials itself and invited bids for doing the work. Appellants put in a bid in writing offering to “ excavate trench for terra cotta sewer .... forty-two cents per lineal foot including hauling .... do the excavating for the brick sewer for sixty cents per lineal foot, haul pipe,” etc. No reference was made to rock excavation, nor to compensation by the cubic yard. This bid was presented to the council by the borough engineer, was approved and the engineer directed to prepare a contract in accordance with it. Subsequently he prepared the contract and submitted it to the council, by whom it was approved aud then executed by appellants and the chief burgess. The contract though rather fuller in details followed the terms of the bid closely and, like it, contained no reference to rock excavation. This is the substance of the whole evidence on this point, and unfortunately for the appellants there is nothing in it to show that the council either contemplated any rock excavation or authorized the engineer to contract about it.

Judgment affirmed.


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

      Negligence — Railroads—“ Stop, look and listen ” — Nonsuit.
    In an action against a railroad company to recover damages for personal injuries, it appeared by the plaintiff's own testimony that he stopped his wagon at a point 101 feet from the grade crossing where he was injured, and looked and listened. At that point it was admitted that he had an uninterrupted view of the track for at least 672 feet, the weight of the evidence being that it was 972 feet. As he approached the railroad his view gradually extended, until just before coming on the tracks he could see 1,429 feet. His horse was struck on the track; whether or not the carriage actually reached the track did not appear. Held, that a nonsuit was properly entered.
    Argued Feb. 7, 1906.
    Appeal, No. 17, Jan. T., 1906, by plaintiff, from order of C. P. Bucks Co., Jan. T., 1904, No. 17, refusing to take off nonsuit in case of Josiab Sellers v. The Philadelphia & Reading Railway Company.
    Before Mitchell, C. J., Fell, Brown, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Stout, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was refusal to take off nonsuit.

      Henry A. James, with him Harvey S. Kiser, for appellant.

      Henry B. Paxson and William O. Ryan, for appellee, were not heard.

      March 5, 1906:
   Pee Curiam,

By appellant’s own testimony he stopped at-the bridge 101 feet from the railroad and looked and listened. At that point it was admitted that he had an uninterrupted view of the track for at least 672 feet, the weight of the evidence being that it was 972 feet. As he approached the railroad his view gradually extended, until just before coming on the track he could see 1,429 feet. His horse was struck on the track; whether op not the carriage actually reached the track did not appear. The learned judge held that the case was clearly within the line of cases from Carroll v. Penna. R. R. Co., 12 W. N. C. 346, down to Harvey v. Erie R. R. Co., 210 Pa. 96, and properly entered a nonsuit.

Judgment affirmed.


text:
    Radnor Township, Appellant, v. Philadelphia & Western Railroad. Haverford Township, Appellant, v. Philadelphia & Western Railroad. Haverford Township v. Philadelphia & Western Railroad, Appellant.

      Railroads — Highways—Bridges—Equity—Injunction.
    The court below having enjoined a railroad by preliminary injunction, first, from the erection of abutments for bridges within the limits of a highway, where it is reasonably practicable to build a bridge spanning the entire highway, and, secondly, having refused to enjoin the construction of a bridge and approaches thereto of the width of merely twenty feet where a highway of the legal width of thirty-three feet has, by reason of the peculiarities of the country, only been opened to the width of twenty-feet, the Supreme Court declined to consider the merits until final hearing.
    Argued Feb. 7, 1906.
    Appeals, Nos. 326 and 371, Jan. T., 1905, and No. 20, Jan. T., 1906, from decrees of C. P. Del. Co., June T., 1905, Nos. 309, 326 and 340, awarding and refusing to award preliminary injunctions in cases of Radnor Township and Haverford Township v. Philadelphia & Western Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    In case of Haverford Township v. Philadelphia & Western Railroad Company Johnson, P. J., filed the following opinion :
    The defendant is a railroad company and has laid out its road through the township of Haverford, above named plaintiff.
    The bill alleges that said railroad crosses eight public roads, viz.: Line road, Lathrop’s road, road at Dickinson’s Mill, Wynnewood avenue, Ardmore avenue, College avenue and Coopertown road, and Cobb’s Creek road, the first of which is partly in the township of Haverford, and partly in the township of Upper Darby.
    That it is proposed to construct said railroad above grade over Lathrop’s road, Dickinson Mill road and Coopertown road, and to cross the other road and avenues named under grade, under the highways.
    That in the crossings at Lathrop’s road, Dickinson Mill road, and Coopertown road, it is proposed to build abutments in the line of the highways.
    That in the crossings of the highways below grade it is proposed by the defendant to construct the bridges over the railroad and the approaches thereto at a less width than the highways, none of which are less in width than thirty-three feet.
    The bill further alleges that the grade of this proposed approach to the bridge crossing over the railroad is excessive, that other grades proposed are unnecessary and illegal.
    It further alleges that the defendant has no right to construct abutments in the public highway or to construct bridges or approaches to bridges on the railroad of less width than the width at which the highways were laid out, and asks the court to enjoin the defendant from constructing its road as it is alleged it proposes to do.
    Upon the filing of this bill, a rule to show cause why a preliminary injunction should not issue, was granted.

      On the hearing the defendant filed an answer admitting that it intended to construct its road substantially in the manner alleged in the bill.
    On the hearing of the rule, considerable testimony was taken.
    First as to points where it is proposed to erect abutments in the highway — that is, where the railroad crosses over the highway.
    Whether under any circumstances, a railroad company in crossing over a highway may erect its abutments in the line of the road, as ascertained by the court of quarter sessions or other authority, when the road was laid out, is an interesting question, which, under the circumstance of the case, it is not necessary to decide. The evidence taken shows that it is reasonably practicable to build a bridge spanning the entire roadway.
    As to points where it is proposed to construct the higlrway over the railroad:
    There is very great force in the position of the plaintiff that the railroad company should not be permitted to permanently narrow the highway, but it is a fact that though these roads are laid out thirty-three feet wide and upwards, that because of the hilly character of the country through which they run, it is impracticable because of necessary cuts and fills to open the full width for travel, and at hardly any point have they a traveled way greater than twenty feet, and at many places much less. And that on one road, a short distance from the railroad crossing, the bridge over Cobb’s Creek is less than sixteen feet in width. There is no evidence that the traveled way as maintained is not practically sufficient to accommodate all the public travel.
    In view of these facts and circumstances, we do not think that the case of the plaintiff is so clear as to warrant us in continuing a preliminary injunction by requiring the railroad company to do that which the plaintiff itself has never done, and which, if it is to be judged by its acts, it has not considered necessary to be done.
    If in the construction of the approaches to the bridges, and the bridges themselves the defendant conforms to the manner in which the plaintiff has maintained its roads as to width, safety and convenience, a preliminary injunction should not issue, or, if issued, should be dissolved until final hearing; or if this case is not pursued to final hearing, until by some future or further proceeding it is shown that the public necessity, or for some other legal reason requires that the traveled way should be widened to the full legal width of the highway.
    What has been said about the width of the highway applies to the proposed grades of approaches.
    The injunction as to the erection of abutments in the highways, is granted.
    As to width of bridges, and roadway of approaches to bridges, and character of protection to approaches, and clearances except the clearance of Lathrop’s road, is refused.
    The present construction of width of roadway and approaches to be not less than twenty feet.
    A similar decree was entered in the case of Radnor Township v. Philadelphia & Western Railroad.

      Errors assigned were the decrees of the court.

      John B. Sannum, with him Charles F. Da Costa, for Radnor township.

      E. S. Hall, for Haverford township.

      George T. Butler and Charles L. McKeehan, with them Joseph S. Clark, for the Philadelphia & Western Railroad Company.
    March 5, 1906:
   Per Curiam,

These cases involve possibly conflicting rights which can only be safely adjudicated on full development of the facts upon final hearing. We therefore follow the usual rule and express no opinion on the merits.

The appeals are dismissed at the costs of appellants, but without prejudice.


text:
    Taylor, Appellant, v. Entriken.

      School law — Mandamus—Distinction, on account of color — Act of June 8, 1881, P. L. 76.
    On the trial of an issue of fact in mandamus proceedings under the Act of June 8, 1881, P. L. 76, forbidding in schools any distinction on account of color, where the testimony is conflicting as to whether such a distinction was made, the case is for the jury.
    Argued Feb. 7, 1906.
    Appeal, No. 22, Jan. T., 1906, by plaintiff, from judgment of C. P. Chester Co., April T., 1904, No. 54, on verdict for defendant in case of John Taylor v. D. W. Entriken et al., School Directors of the Borough of Kennett Square, and W. E. Dengler, Principal.
    Before Mitchell, C. J., Fell, Brown, Elkin and Stewart, JJ.
    Affirmed.
    Mandamus proceedings under the Act of June 8,1881, P. L. 76. Before Butler, J.
    From the record it appeared that the action of the court below began by a petition for a mandamus asking that said defendants be commanded to put the four children of the plaintiff in the same room with white children and averred as the basis for said action, that said children were not so assigned by reason of their race and color.
    The answer denied this averment, and asserted that the said children were assigned to the room for which their capacities, qualifications and attainments best fitted them.
    The Act of June 8, 1881, P. L. 76, sec. 1, provides that: “ It shall be unlawful for any school director, superintendent or teacher, to make any distinction whatever on account of, or by reason of, the race or color of any pupil or scholar, who may be in attendance upon, or seeking admission to, any public or common school maintained wholly or in part under the school laws of this commonwealth.”
    The evidence was conflicting as to whether any distinction was made.
    The court refused binding instructions for plaintiff.
    Verdict and judgment for defendants. Plaintiff appealed,

      Error assigned was in refusing binding instructions for plaintiff.

      W. S. Harris, for appellant.

      Alfred P. Reid, for appellee.
    March 5, 1906:
   Per Curiam,

Plaintiff claimed that his children were excluded from one schoolroom and assigned to another on account of their color. The defense was that the school had been properly graded by the board and the plaintiff’s children assigned to the classroom for which their capacities and attainments fitted them. The judge left the question to the jury with clear instructions that under the Act of 1881, P. L, 76, any distinction between pupils on account of color was unlawful and if the jury believed such distinction was made here they should find for the plaintiff. It was a plain issue of fact in which the evidence was conflicting and the judge could not have taken it from the jury.

Judgment affirmed.


text:
    Fries v. Mather, Appellant.

      Husband and wife — Principal and surety — Promissory notes — Evidence— Question for jury.

    In an action on a promissory note where the sole question is whether one of the defendants, a married woman, executed the note as a joint purchaser, or as surety for her husband and son, and the determination of this question depends on the veracity of the witnesses, the ease is for the jury.
    Argued Feb. 7, 1906.
    Appeal, No. 23, Jan. T., 1906, by defendant, from judgment of C. P. Bucks Co., Jan. T., 1904, No. 21, on verdict for plaintiff in case of S. F. Fries v. John S. Mather, Charles Sidney Mather and Tacie A. Mather.
    Before Mitchell, C. J., Fell, Blown, Elkin and Stewart, JJ.
    Affirmed,

      Assumpsit on promissory notes.
    At the trial it appeared that the notes in question were given by John S. Mather, Charles S. Mather, and Tacie A. Mather to S. F. Fries. Tacie A. Mather was the wife of Charles S. Mather and mother of John S. Mather. The three defendants at the time the notes were given executed a joint agreement for- the purchase of a livery stable from plaintiff. Mrs. Mather claimed that notwithstanding the joint contract which she had executed, that she signed the papers only as a surety for her husband and son.
    The court charged in part as follows:
    [The facts in this case are nearly all in dispute from beginning to end. There are, however, a few of them that are undisputed, and that is that Fries, the plaintiff, knew that Mrs. Mather was a married woman and that he knew that a married woman could not become lawfully an accommodation maker, security or surety for the debt of another. It is also, I believe, undisputed that he never had any personal interview with Mrs. Mather, and did not see her for at least a period of a year and a half after the consummation of the purchase and sale. In that far I believe the facts are not disputed. In all other respects the main facts are in dispute. You have heard them and you will have to find what they are.] [4]
    [And I say again that if this was an honest purchase and sale of the livery stable, and she was a party to it, then the plaintiff can recover upon these notes, because the notes were given then in settlement of the purchase price of the sale. But, if you find that this was a fraud on her, and she was deceived in fixing up of the papers, and when she signed the papers she did not intend to be a party to the purchase and sale, but that she only intended to lend her name or to go security for her husband and son, so that they might be able to buy this livery stable, in that event he cannot recover.] [5]
    Verdict and judgment for plaintiff for $7,858. Tacie A. Mather appealed.

      Errors assigned among others were (4, 5) above instructions, quoting them.

      William C. Ryan and Harman Yerkes, of Yerkes, Ross & Ross, for appellant,
    cited: Stewart v. Stewart, 207 Pa. 59; Patrick & Co. v. Smith, 165 Pa. 526; Weigle v. Mercer, 1 Pa. Superior Ct. 490; Sibley v. Robertson, 212 Pa. 24; Harper v. O’Neil, 194 Pa. 141; Wiltbank v. Tobler, 181 Pa. 103; Fidelity, etc., Co. v. Harder, 212 Pa. 96; Greenawalt v. Kohne, 85 Pa. 369.

      Hugh B. Eastburn, for appellee.
    March 5, 1906:
   Per Curiam,

The main facts are undisputed, for although there was a serious conflict of testimony it was all upon the single point whether Tacie Mather, the appellant, executed the notes in suit as a joint purchaser, or as security for her husband and son. It raised a single issue of fact, which depended on the veracity of the witnesses whose credibility was of course for the jury. The plaintiff claimed on promissory notes in which appellant was a joint maker, and which it was admitted were executed in furtherance of a written agreement in which appellant was named as a joint purchaser. The judge charged explicitly and positively that notwithstanding the apparent contract according to the writings yet if the jury should be of opinion that they were a mere device to avoid the prohibition of the law against a married woman becoming surety as the defendants testified, then they should find for defendants. With a prima facie case on admitted signatures of the appellant to the writings which could only be defeated by evidence convincing to the jury that the writings were an evasion and fraud on the law, the judge could not have gone any further than he did.

Judgment affirmed.


author: Mr. Justice Elkin,

text:
    Commonwealth ex rel., Appellant, v. Bond.

      Street railways — Boroughs—Permission to use streets — Conditional consent —Unconstitutional taking of property.

    Where a borough, in granting to a street railway company the right to use a street, reserves the right to grant to another company the right ti> use the street in common with the first company, and it appears that the street is wide enough to accommodate two parallel tracks, the borough cannot subsequently require that a later company to which permission has been given to use the same street, shall have its line located in such á manner as to straddle-the tracks of the older corporation.
    To superimpose on the tracks of the former company the whole or any part of the tracks of the later company is an unconstitutional talcing of property of the former company; and there is no distinction in principle between the taking of the whole of the tracks of the former for the use of the later company, and the taking of part of the tracks.
    Argued Feb. 8, 1906.
    Appeal, No. 164, Jan. T., 1906, by plaintiff, from judgment of C. P. Bucks Co., April T., 1906, No. 48, for defendants in mandamus proceedings in case of Commonwealth ex rel. Philadelphia, Bristol & Trenton Street Railway Company v. Lewis R. Bond and Thomas B. Stockham, surveyors, and Lewis A. Howell, Harry J. Burns and James H. Cox, Committee on Streets and Highways of the Borough of Morrisville.
    Before Mitchell, C. J., Fell, Brown, Elkin and Stewart, JJ.
    Reversed.
    Petition for mandamus. Before Stout, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned among others was in entering judgment for defendants.

      George Quintard Horwitz, with him Francis K. Swartley and Joseph W. Shelley, for appellant.
    The borough of Morrisville had no right to deprive this appellant of its rights and franchises by making it superimpose its tracks: Philadelphia, etc., Street Ry. Co’s. Petition, 203 Pa. 354; Com. v. Ry. Co., 203 Pa. 608; Com. ex rel. v. Smedley, 14 W. N. C. 402; West Phila. Pass. Ry. Co. v. City of Philadelphia, 10 Phila. 70; Northern Liberties Commissioners v. Gas Co., 12 Pa. 318.

      The action of the appellees is tantamount to a revocation of the grant given to the appellant, and which has been accepted by it and in consideration of which the appellant has expended large sums of money; and it is therefore unlawful: Hestonville, etc., Pass. R. R. Co. v. Philadelphia, 89 Pa. 210.

      William C. Ryan with him Lewis R. Bond, for appellees.
    The borough of Morrisville might arbitrarily have refused its consent. It did grant it, however, upon the conditions which its authorities saw proper to impose. Such a consent may be granted conditionally, and the conditions which have been sustained by the courts are numerous and various : Millcreek Twp. v. Erie Rapid Transit Street Ry. Co., 209 Pa. 300; Minersville Borough v. Schuylkill Electric Ry. Co., 205 Pa. 394; Philadelphia v. Thirteenth & Fifteenth Streets Pass. Ry. Co., 169 Pa. 269; May v. Traction Co., 167 Pa. 343; Phila., etc., Street Ry. Co’s. Petition, 203 Pa. 354.
    March 5, 1906:
   Opinion by

Mr. Justice Elkin,

The appellant company by ordinance was granted a right by the borough of Morrisville to construct a track and operate a railway along, over and upon Bridge street for the distance of one block. At the time of the passage of the ordinance an older street railway company had in operation a line on Bridge street by rights acquired under a prior ordinance. The borough had imposed upon the first street railway corporation as a limitation of its grant the condition that it should only occupy Bridge street subject to the right of the borough at any subsequent time to grant to another street railway company the use of said street in common with it. The condition, of the first grant is as follows : “ Upon the express condition and with the clear understanding that the burgess and town council of said borough of Morrisville may at any time by ordinance grant to any other street railway company now or hereafter incorporated the use of Bridge Street and Trenton Avenue, or either of them in common with the Yardley, Morrisville and Trenton Street Railway, its successors and assigns, and the right and power to grant such consent is hereby expressly reserved accordingly.”

Under this condition and reservation of rights in the prior ordinance it was clearly within the power of the borough to subsequently grant the right claimed by the appellant company in the common use of the street. These grants were made with the express condition imposed that the companies “ shall be subject to such reasonable legislation in regard to the construction, maintenance and operation of their street railway as shall from time to time hereafter be ordained and enacted by the said burgess and town council.”

The borough under its authority to reasonably regulate the construction, maintenance and operation of the later company in the use of the street, has required that its line be located in such manner as to straddle the tracks of the older corporation. The street has sufficient width to permit of the construction of both tracks thereon without interfering with each other, but for its own purposes the borough has thought proper to compel the construction of the track of the later company so as to occupy part of the track of the former company. The right to do this particular thing is claimed by the borough under the phrase “ common use of the street ” contained in the ordinance. When the first corporation accepted the ordinance under which its tracks were constructed with the reservation of the “ common use ” of the street to a later company it did not thereby agree to give the “ common use ” of its tracks over the street, but in effect waived its right to the exclusive use of the street. “ Common use ” of the street did not mean “ common use ” of its tracks. This court has decided that while the legislature may in the exercise of the right of eminent domain take fran-. chises and property engaged in a public use, and apply them to another public use, a statute cannot be sustained which confers upon one corporation for profit the right to appropriate the property of another corporation to exactly the same public uses for the convenience and profit of the younger corporation: Philadelphia, Morton & Swarthmore Street Railway Company’s Petition, 203 Pa. 354. It has also been decided that section 14 of the Act of May 14, 1889, P. L. 211, as amended by the Act of June 7, .1901, P. L. 514, giving one street rail.way company the right to use the tracks of another street railway company for certain prescribed distances is unconstitutional: Commonwealth v. Uwchlan Street Railway Company, 203 Pa. 608.

The rule in these cases is based on the principle that the grant of the use of the tracks of a former company to a later company was the taking of property of the former company for the convenience and profit of a younger corporation, and therefore unconstitutional. The principle of those cases rules the one at bar. To superimpose on the tracks of the former company the whole or any part of the tracks of a later company, is the taking of property of the former company within the meaning of the rule of the cases just cited. There is no distinction in principle between tbe taking of the whole of the tracks of the former for the use of the later company and the taking of part of the tracks. The appellant company under its ordinance is entitled to construct and maintain its tracks on Bridge street alongside of and parallel with the line of the former company without in any way interfering with it.

Judgment reversed, and it is ordered and directed that judgment be entered for the plaintiff in accordance with the prayer of the petitioner asking for a writ of alternative mandamus.