author: Me. Justice Elkin,

text:
    Wilkinson v. North East Borough, Appellant.

      Practice, C. P. — Amendment—Cause of action — Statute of limitations— Prcecipe.

    Where the prothonotary by mistake issues a summons in assumpsit on a prieeipe in trespass, the court may permit the record to be amended so as to show that the action was in trespass, although such amendment is made after the statutory period within which to bring the action had expired. In such a case the amendment does not involve a change in the cause of action.
    The praecipe is a part of the record.

      Negligence — Damages—Wrongful instructions — Reversal of judgment.

    Where in an accident case the instructions as to damages are manifestly erroneous, the Supreme Court will reverse the judgment, although neither the plaintiff nor defendant asked at the trial for specific instructions as to the measure of damages.
    - In a negligence case when future payments are to be anticipated and capitalized in a verdict, the plaintiff is entitled only to their present worth.
    In such a case it is error for the court to charge the jury that “in arriving at the amount, you will find what her earning power was prior to the accident, and deduct that from her earning power since the accident, and then take the period of time she will be deprived of her earning power and compute it accordingly.”
    Argued April 23, 1906.
    Appeal, No. 158, Jan. T., 1905, by defendant, from judgment of C. P. Erie Co., May T., 1902, No. 80, on verdict of guilty in case of Ella Wilkinson v. North East Borough.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Reversed.

      Trespass to recover damages for personal injuries. Before Bouton, P. J., specially presiding.
    The opinion of the Supreme Court states the case.
    The court charged in part as follows :
    [In arriving at the amount which she would be entitled to recover, if she is entitled to recover at all — she is entitled to recover, if at all, for her loss of earning power, dating from the time when this injury occurred, down to a time (if there is any time under the evidence) when she would fully recover. In determining the length of time for which she would be entitled to recover damages for loss of earning power you will be governed entirely by the evidence. 'Will she recover, eventually, and if so during what time ? The evidence as to the amount of earning power, the only witness was the plaintiff herself, who testified she could average $1.25 a day, and that since the injury she had only earned $52.00 in any one year.
    The question is whether she could earn more than the $52.00 a year or not. In arriving at this amount you would find what her earning power was prior to the accident and deduct from that her earning power since the accident, and then take the period of time you think she will be deprived of her earning power and compute it accordingly, if you find for her. In addition to that she is entitled to recover for her expenses attendant upon this injury, if entitled to recover at all. You have the testimony of the physician that his bill was something like $111. Her testimony of what she paid this girl, a $1.00 a week and board, and that the board was worth $3.00 a week.
    In addition to loss of earning power and expenses, if she is entitled to recover she is entitled to recover for her pain and suffering — for the pain and suffering endured by her in the past, since this injury, by reason of the injury, and for future pain and suffering. [1]
    The defendant’s seventh point was as follows, viz:
    7. The plaintiff in this case having been injured on March 2, 1901, and the defendant in this case having been served on April 12, 1902, with a summons in assumpsit which said summons was attested March 24, 1902, and returnable the second Monday in May, 1902, and caused an appearance to be entered therein, and the plaintiff having thereafter, to wit: on March 9, 1903, moved to amend the writ to summons in trespass, to conform to the praecipe filed in the case, and more than two years having elapsed after the accident, before the plaintiff moved to amend its form of action, said cause of action was then barred by the statute of limitations and the plaintiff cannot recover in this case. Answer: This point we also refuse: and in refusing this point, while this is entirely a matter for the court, we desire to put upon the record our views in regard to this.
    The praecipe filed in this case directed the prothonotary to issue a summons in trespass. By a mistake on part of the clerk or prothonotary a summons in assumpsit was issued. Counsel for the defendant, on April 14, 1902, by leave of this court, entered an appearance d. b. e. in the case. This appearance was entered long before the two years from the time the right of action accrued, — before the expiration of the two years from the time the right of action accrued.
    After two years had elapsed the plaintiff discovering that an error had been made in the issuing of the summons, moved for leave to amend to an action of trespass, which amendment was allowed by this court. Now the allowance of that amendment did not prejudice the rights of this defendant to have the question as to whether or not the action was barred by the statute of limitations passed upon at this time, but it needed no statute of amendments to permit this amendment. It has always been the law that courts have a right at any time to correct their own mistakes; and we may say that a mistake of the clerk in issuing the writ was the mistake of the court, and it is the inherent right of the courts to correct their own mistakes.
    Moreover, we think that when the counsel entered their appearance d. b. e. in this case that they then ought .to have known what the praecipe in this case was. It was filed, a record paper in this case, and surely the appearance d. b. e. must either have been for the purpose of taking advantage of a defective service 'or a defective writ, and we think they were bound by the notice which appeared on the record and that the praecipe filed in .this case was for a summons in trespass and it would be a hardship to turn a plaintiff out of court, if they had a meritorious case, or if they had a case which ought to be passed upon by a jury, through a mere mistake of the clerk of the court.
    May 24, 1906:
    For these reasons we think this case is not barred by the statute of limitations. [4]
    Verdict and judgment for plaintiff for $3,875. Defendant appealed.

      Errors assigned were (1,4) above instructions, quoting them.

      L. R. Cushman and T. A. Lamb, for appellant.
    The instructions as to damages was error: Goodhart v. R. R. Co., 177 Pa. 1.
    The allowance of the amendment was error: Harlan v. Plater, 19 W. N. C. 401 ; Black v. Dobson, 11 S. & R. 94; Seaman v. Miller, 1 Johns. 148; Crutcher v. Com., 6 Whart, 340 ; Dornick v. Reichenback, 10 S. & R. 84; Duffey v. Houtz, 105 Pa. 96; Leeds v. Lockwood, 84 Pa. 70; Strock v. Little, 33 Pa. 409; Grier Bros. v. Assurance Co., 183 Pa. 334.

      J. E. Mullin and Henry E. Fish, with them John S. Rilling, for appellee.
    It is not reversible error for the court to fail to charge that a plaintiff is entitled only to the present worth of future earnings, when not requested so to do, in a case where the verdict is moderate in amount: Baker v. Irish, 172 Pa. 528 ; Lewis v. Springfield Water Co., 176 Pa. 237; Allegheny v. Nelson, 25 Pa. 332; Wills v. Hardcastle, 19 Pa. Superior Ct. 525.
    The amendment was proper : Cohn v. Scheuer, 115 Pa. 178 ; Ihmsen v. Navigation Co., 27 Pa. 267; Marshall v. Oil Co., 198 Pa. 83; Wright v. Eureka Tempered Copper Co., 206 Pa. 274; Fitzsimons v. Salomon, 2 Binney, 436; Grier v. McGlathery, 16 W. N. C. 457; Wood v. Bradbury, 42 Legal Int. 436; Wickersham v. Lee, 83 Pa. 422; DeHaven v. Bartholomew, 57 Pa. 126; Smith v. Taylor, 10 Rob. (La.) 133; German Ins. Co. v. Frederick, 58 Fed. Repr. 144; Schrenkeisen v. Kishbaugh, 162 Pa. 45.
   Opinion by

Me. Justice Elkin,

Under the authority of our cases and the testimony offered at the trial, the alleged negligence of the defendant as well as the contributory negligence of the plaintiff were questions of fact to be submitted to and determined by the jury. We therefore overrule the assignments of error relating to these questions.

The learned counsel for appellant mainly rely on the fourth specification of error which raises the question of the power of the court to authorize the amendment of the record after the expiration of two years from the date of the accident. . The pertinent facts in reference to this question are as follows : The plaintiff was injured March 2,1901. On March 24,1902, a praecipe in trespass was filed, but the prothonotary by mistake issued the summons in assumpsit. On April 14, 1902, defendant entered an appearance de bene esse. On March 9, 1903, seven days after the statute of limitations had become a bar the court permitted an amendment to be made correcting the record so as to show that it was an action in trespass as the pracipe called for, instead of assumpsit as named in the summons by mistake. The appellant earnestly contends that the amendment permitted a change in the form of action, which it is argued cannot be made after the statutory period in which to bring the action had expired. This contention overlooks the distinction between cause of action and form of action, as well as the particular facts of the present case. The general rule on this subject is that no amendment can be allowed, the effect of which is to introduce a new cause of action so as to deprive the opposite part}' of a valuable right or to injuriously affect the intervening rights of third parties: Strock v. Little, 33 Pa. 409; Leeds v. Lockwood, 84 Pa. 70; Duffey v. Houtz, 105 Pa. 96; Grier Brothers v. Assurance Co., 183 Pa. 334. It is contended by appellee that the amendment permitted to be made did not change the cause of action. The court below held that it had the inherent power to correct the mistakes of its own officers as they appear of record, and that such mistakes can be corrected at any time during the course of the trial before or after the statute has become a bar. The following cases are cited in support of this position: Ihmsen v. Monongahela Navigation Co., 27 Pa. 267; Marshall v. Oil Company, 198 Pa. 83; Wright v. Eureka Tempered Copper Co., 206 Pa. 274. We agree that if the amendment changed the cause of action in fact it could not be made after the statutory period in which to bring the action. We do not agree, however, that in the case at bar the cause of action was changed. The praecipe was in trespass. This court held in Fitzsimons v. Salomon, 2 Binney, 436, that the praecipe is part of the record. To the same effect is Grier v. McGlathery, 16 W. N. C. 457; Wilhelm’s Appeal, 79 Pa. 120 ; Wolf v. Wolf, 158 Pa. 621. In Commonwealth v. Silcox, 161 Pa. 484, it was held that no party has a right to have the error of the clerk perpetuated for his benefit. In Re Road in North Franklin Township, 8 Pa. Superior Ct. 358, it was held that the amendment of the record so as to make it conform to the facts is not prejudicial to the rights of the party. We have carefully examined all the authorities cited by the appellant bearing on this question, but have not been convinced that any of them support the contention as applied to the facts of this case. The praecipe being a part of the record and having been filed in trespass, the amendment permitting the word “ assumpsit ” inserted in summons by mistake of the prothonotary to be changed to “ trespass ” to follow praecipe, was not a change in the cause of action.

There only remains one other question to be considered. Did the court commit reversible error in instructing the jury as to the proper measure of damages? We think it did. Indeed, counsel for appellee does not seriously contend that the instructions of the learned court in this respect were correct, but it is argued that, inasmuch as neither plaintiff nor defendant asked for specific instructions as to the measure of damages, it is too late to raise the question now. A number of cases are cited in support of this position. Baker v. Irish, 172 Pa. 528, is particularly relied on. It is there said the court will not reverse for inadequacy of the charge on the question of the measure of damages where the verdict is reasonable and moderate. To the same effect is Lewis v. Springfield Water Co., 176 Pa. 237. We agree that a judgment of the court below should not be reversed for inadequacy in the charge if no injury resulted to the complaining party, and the cases above cited announce this rule. The rule, however, does not apply where the charge of the court is clearly erroneous. Under such circumstances, it is not a question of inadequacy, but of error. In every case of negligence it is the duty of the court of its own motion to instruct the jury as to the proper measure of damages. Without such instruction a jury has no legal guide for intelligent consideration and correct conclusion. The learned trial judge instructed the jury that “ in arriving at tbe amount, you would- find what •her earning power was prior to the accident, and deduct from that her earning power since the accident, and then take the period of time she will be deprived of her earning power and compute it accordingly.” This instruction is in plain violation of the rule laid down in Goodhart v. Penna. Railroad Company, 177 Pa. 1, wherein it is said: “ When future payments are to .be anticipated and capitalized in a verdict, the plaintiff is entitled to only their present worth. This is the exact amount of the equivalent of the anticipated sum.” In the hurry of the -trial we have no doubt the instruction complained of was inadvertently given, but it was clear error and the judgment must be reversed on this ground.

Judgment reversed and a venire facias de novo awarded.


source: Caselaw Access Project

author: Mr. Justice Brown,

license: Public Domain

text:
    Green, Appellant, v. Brooks.

      Evidence — Failure to call witness — Presumption—Inferences—Charge of court.
    Where evidence which would properly be part of the case, is within the control of the party whose interest would naturally be to produce it, and, without satisfactory explanation he fails to do so, the jury may draw an inference that it would be unfavorable to him. It is an inference of fact, not a presumption of law.
    , On a feigned issue to determine the title to property seized in execution it appeared that a son of the plaintiff who was one of the defendants in the execution would have been a material and important witness for his father, if he could have corroborated him. The son was not called. The father when on the witness stand stated that the son was then in court. The court charged the jury that if it was a fact that the son was in court and had not testified or was not called upon to testify, that fact might be taken into consideration by them along with the other facts'in the case, but not as a conclusive one. Held, that the instruction was not erroneous.
    Argued April 16, 1906.
    Appeal, No. 224, Jan. T., 1905, by plaintiff, from judgment of C. P. Clearfield Co., May T., 1904, No. 72, on verdict for defendant in case of Job L. Green y. T. Fernley Brooks, Trustee, and Strang & Forsythe.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Feigned issue to determine the title to personal property taken in execution. Before Smith, P. J.
    The facts are stated in the opinion of the Supreme Court.
    In the course of the trial counsel for the defendants made the following suggestion to the court:
    Mr. Krebs: May if please the court, a circumstance the jury may consider is that plaintiff’s son was here in court and was not called.
    The Court: Well, that is of course for the jury. Was that proven ?
    Mr. Krebs: Yes.
    The Court: It was proven in evidence, I believe, that George W. Green was present in court and was not called in the case. That is to be taken into consideration by you in your final determination.
    Mr. Boulton: We take exception there. There is no evidence at all of that.
    The Court: That is the only point there is in it. My recollection is there is evidence, I recall now there was. If that is not true, gentlemen of the jury, that should not be taken into consideration. The statement of Judge Krebs that he was here in court has no weight, but if it was proven here that George W. Green was here in court, then that is to be taken into consideration, and my recollection is now that that was proven, but that is entirely for you. The statement of counsel either one way or the other cannot have any weight on any question of fact. Counsel are not here to testify. But if that is a fact, that it was proven here that George W. Green was in court and did not testify or was not called upon to testify, it is to be taken into consideration by you along with other facts, not as a conclusive fact, however. [1]
    Verdict and judgment for defendants. Plaintiff appealed.

      Error assigned among others was (1) above instruction, quoting it.

      Cyrus Cordon, of Cordon Boulton, for appellant.

      May 24, 1906:

      Thomas H. Murray, of Murray S? O' Laughlin, with him R. D. Swoope and Krebs ‡ Liveright, for appellees.
   Opinion by

Mr. Justice Brown,

This was a feigned issue in the court below to determine the title to certain personal property taken in execution by a trustee for the creditors of the firm of Strang & Forsythe and claimed by Job L. Green, the father of George W. Green, one of the members of the firm. The goods were delivered to the claimant, who was the plaintiff in the issue, but, the jury having found that they were the property of the defendants in the execution, there was a verdict in favor of the execution creditor, the defendant in the issue, in the sum of 16,865. On this appeal twenty-three errors are assigned. Each one of them has been duly considered, and we are compelled to say that no one of them can be sustained. No question raised by any one of them, except the first, is of any general interest, and we do not feel called upon to state our reasons in detail for dismissing the remaining ones. In the trial of the case there was involved nothing but disputed facts calling for the application of well-known general principles, and it is sufficient for us to say, as to all of the assignments except the first, that the rulings of the court on offers of evidence were proper, that the charge was free from error, and the answers to the points, which are complained of, were correct.

George W. Green, the son of the appellant, would undoubtedly have been a material and important witness for his father, if he could have corroborated him. While the court was charging the jury an oral request was made by counsel for the appellee that they be instructed that, as the son had been in court and was not called by the father, that circumstance might be taken into consideration. This was objected to by counsel for the plaintiff, on the ground that there was “no evidence at all ” that the son had been in court during the trial. As a matter of fact, as we find from the notes of testimony, the father himself, when on the witness stand, stated that the son was then in court. The following is the testimony as to this: “ Q. George Green is here in court ? A. Yes, sir. Q. The same George Green is your son George ? A. Yes, sir.” The court instructed the jury that if it was a fact that the son was in court and had not testified, or was not called upon to testify, that fact might be taken into consideration by them along with the other facts in the case, but not as a conclusive one. That this was not error is not an open question, for it has been several times decided by this court that it was not. Our attention, however, has not been called by counsel for the appellee to the cases to which we now refer as sustaining the court’s ruling, complained of in the first assignment of error.

In Steininger v. Hoch’s Executor, 42 Pa. 432, in charging the jury, the court below called their attention to the fact that Eshbach, who would have been an important witness for Steininger, bad not been called, and told them that they might take the fact of his not being called into consideration. This was assigned as error, and in dismissing the assignment it was said by Thompson, J.: “ As to the remark of the learned judge as to the non-production of Eshbach as a witness, we see no ground for complaint. In the nature of things, we are authorized to look to and to draw inferences from acts and sometimes non-action when demonstration or other means of information fails to disclose the true state of any subject of inquiry. To close our eyes and understanding to the light to be drawn from experience, would be to choose ‘ darkness rather than light; ’ and if experience teaches us that a man will use every means in his power which would avail to aid him in the hour of trial, physically or as a litigant, may it not be expected that he would call a witness who is at hand, was a party in the transaction, and, also, it is fair to presume, knew the very truth of the case, if he did not know that he would testify against him? Upon this kind of presumption, we never admit secondary evidence until it is clearly shown that the primary cannot be had. The principle expounded by Judge Huston, when he said that‘ evidence consisted as well of what is not proved as of that which is,’ is rather a deduction from experience than a rule of evidence, and is to some extent true. But, as in practice, it relates to inferences to be drawn from non-action rather than positive action, it should be carefully confined to natural and equitable deduction. I do not think this was overstepped here. It was a simple reference at most to a circumstance, and no binding instruction predicated of it.” This was followed by Frick et al. v. Barbour et al., 64 Pa. 120. In Hall et al. v. Yanderpool, 156 Pa. 152, which was also a feigned issue to determine the title to property seized in execution, the claimant, Mrs. Hall, failed to call Nelson Yanderpool, from whom she claimed title. The court below commented upon her failure to call him as a circumstance against her. In dismissing the assignment alleging this to have been error, the present Chief Justice said: “ The fourth assignment is perhaps the most important, for while the rule invoked by the learned judge is well established, yet the terms in which he laid it down were somewhat broad. It was thus stated by Chief Justice Thompson, in Frick v. Barbour, 64 Pa. 120 : “ The evidence in a case ‘ often consists in what is not proved as well as what is proved. Where withholding testimony raises a violent presumption that a fact not clearly proved or disproved exists, it is not error to allude to the fact of withholding, as a circumstance strengthening the proof.’ Fully expressed, it is this: where evidence which would properly be part of a case, is within the control ‘of the party whose interest it would naturally be to produce it, and, without satisfactory explanation, he fails to do so, the jury may draw an inference that it would be unfavorable to him. It is an inference of fact, not a presumption of law. . . . The plaintiff, Mrs. Hall, was a daughter of Nelson Yanderpool, and was claiming the property levied on as hers by transfer from her father; the defendant was a creditor of Nelson Yanderpool, who was resisting the claim on the ground that the alleged transfer was not made at the time it professed to have been, and was fraudulent in law if not in fact. Under those circumstances Yanderpool was of course a most important witness, and the judge might well feel called upon to draw the jury’s attention to the omission to call him in support of the alleged transfer. The terms in which he did so were forcible, but we do not think they could have misled the jury. The latter must have understood, as the learned judge intended, that the matter was left to them on the whole evidence, including the inference from testimony that ought naturally to have been put in the case but was not.” To the foregoing cases may be added McHugh v. McHugh, 186 Pa. 197.

Judgment affirmed.


author: Mr. Justice Elkin,

text:
    Messinger v. Pennsylvania Railroad Company, Appellant.

      Negligence — Railroads—Grade crossings — “Stop, look and listen” — Safely gates.

    In an action against a railroad company to recover damages for personal injuries sustained by the plaintiff while driving a two-horse wagon across defendant’s tracks at grade on a highway, the case is for the jury where there is evidence that the plaintiff did stop, look and listen at a point where he could see the tracks for a distance of eighty feet from the crossing, that this was the point where people usually stopped to look and listen, that there was no other point from which a further view could be obtained until some of the tracks were crossed, and that at the crossing in question the safety gates were raised.
    Safety gates which should be closed in case of danger, if standing open, are an invitation to the traveler on the highway to cross, and while this fact does not relieve the traveler from the duty of exercising care, it is a fact for the consideration of the jury in determining whether he exercised care according to the circumstances.
    Argued April 25, 1906.
    Appeal, No. 44, Jan. T., 1906, by defendant, from judgment of O. P. Erie Co., Feb. T., 1905, No. 30, on verdict for plaintiff in case of M. B. Messinger v. The Pennsylvania Railroad Company.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Thomas, P. J., specially presiding.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $6,000. Defendant appealed.

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

      J. Ross Thompson, of J. Ross Thompson Sp Son, for appellant.
    To stop, look and listen once will not relieve a person about to cross a railroad track from his duty, and he is not fully discharged by doing this but must continue to use care in approaching the track by looking out and, if necessary, get out of "his wagon and go ahead of his horses to look and listen: Gray v. R. R. Co., 172 Pa. 383; Kinter v. R. R. Co., 204 Pa. 497; Blotz v. Railroad Co., 212 Pa. 154; Penna. R. R. Co. v. Beale, 73 Pa. 504.
    May 24, 1906:

      J. W. Sproul, with him O. Geo. Olmstead, for appellee.
    The case was for the jury: Lake Shore, etc., Ry. Co. v. Frantz, 127 Pa. 297; Conway v. Ry. Co., 17 Phila. 71; Ellis v. Ry. Co., 138 Pa. 506; Newton v. R. R. Co., 18 Pa. Superior Ct. 18; Kinter v. R. R. Co., 204 Pa. 497 ; Whitman v. R. R. Co., 156 Pa. 175 ; Newman v. R. R. Co., 203 Pa. 530; Penna. R. R. Co. v. Ackerman, 74 Pa. 265; Beach v. R. R. Co., 212 Pa. 567; Roberts v. Canal Co., 177 Pa. 183; Muckinhaupt v. Erie R. R. Co., 196 Pa. 213; Elston v. Delaware, etc., R. R. Co., 196 Pa. 595; Cookson v. Pittsburg & Western Ry. Co., 179 Pa. 184; Gray v. Penna. R. R. Co., 172 Pa. 383.
   Opinion by

Mr. Justice Elkin,

We agree with the statement of the rule of law set out in the argument of the learned counsel for appellant wherein it is said to be the absolute, imperative and unbending duty of a person about to cross the tracks of a railroad at grade, to stop, look and listen. It must be conceded also that it is not a compliance with this rule to stop at a point where the traveler cannot see, and it is his duty to continue to use care in approaching and even crossing the tracks, and in some instances a performance of his duty may require the driver to get out of his wagon and go ahead of his horses to look and listen. Wre are not convinced, however, that under the facts of the case at bar there was such neglect of duty in these respects as would justify a court in holding as a question of law that plaintiff was guilty of contributory negligence. The most favorable view that can be taken of this contention is that whether the plaintiff stopped at a proper place and exercised due care in approaching and crossing the tracks after he had stopped, looked and listened, was a question of fact to be determined by the jury-

On the question of whether the plaintiff observed the rule the learned trial judge in his charge to the jury said : “ There was evidence that the plaintiff did stop, look and listen at a certain point. There is considerable evidence that this is the point at which the people about to cross these tracks usually stop, look and listen, so we could not as a matter of law say there was negligence because of the stopping at that particular point.” As to whether this was a proper place to stop, and whether Messinger and the driver could see in the direction of the approaching train, the court further instructed the jury as follows: “At the place where they stopped, looked and listened, they could see the tower house a distance of some eighty feet from the crossing. There was evidence to the effect that one could see no further until after having crossed several of the tracks, while there was some evidence that the track could be seen some little distance when one was at the gate, but a person could not get that view while in his rig until his horses were already on one of the tracks, and then according to the testimony of defendant’s engineer only a point on defendant’s road could have been seen.”

Under these circumstauces, it was clearly a question for the jury to say whether Messinger stopped at the proper place, whether he could see at that place, and whether there was a better place at which he should have stopped in order to comply with the rule. It is earnestly contended, however, that under the facte of this case, it was the duty of the driver or plaintiff to get out of the wagon and go ahead to look and listen for approaching trains. Kinter v. Railroad Company, 204 Pa. 497, is relied on to support this position. The rule of that case is not applicable to the facts of the present case, as will appear from Hanna v. Railway Company, 213 Pa. 157, wherein it was said, “ In that case it was held to be the duty of Kinter to stop, look and listen at a place where he could see the approaching train. The evidence showed that he did not stop at such a point, and it being conceded that he could not see where he did stop, it was for the court to say that he had not observed the rule requiring him to look.” In the present case the weight of the testimony shows that Messinger did stop at the usual and customary place, that he had an unobstructed view of the tracks to the tower about eighty feet east of the crossing, and the testimony is conflicting as to whether there was any better place at which he could have stopped. The contention that there was a point near the safety gates from which he could see a point on the railroad about 160 feet east "of the tower, would not justify the'court in holding as a matter "of law that he should have stopped at that point, because before 'the driver could see from that point his horses would have passed the safety gates and be upon the first tracks, and then he could only see a particular point on the railroad. Then, ^again, the safety gates were raised, which was an invitation to •cross over, and while it did not relieve appellee from the duty to "observe care, it certainly raised a question for the jury to deter- ' mine whether proper care had been exercised under the circumstances. In Roberts v. D. & H. Canal Co., 177 Pa. 183, it was said: “ Safety gates which should be closed in case of danger, .if standing open, are an invitation to the traveler on the high- ■ way to cross, and while this fact does not relieve the traveler ■from the duty of exercising care, it is a fact for the consideration of the jury in determining whether he exercised care according to the circumstances.” All of our cases recognize ‘this rule.

The peculiar facts of this case are the best answer to the "contention of the learned counsel for the appellant in so far as he ■ asks the court to say as a question of law that there can be no recovery. The tracks of three railroad companies cross the avenue at'the place where the accident occurred. The first .was the track of the W. N. Y. & P. R. R. Co., which was located within nine feet of the south safety gate, from which direction Messinger approached. The next two tracks were those of the Erie Railroad, the next two tracks of the Pennsylvania Railroad, and' then the two interchangeable switches used "in common by all these roads. The accident occurred on ■the second track of the Pennsylvania Railroad and the fifth on the crossing. In other words, having been invited by -the raised" safety gates to cross over, and there being testimony ■tending to show that appellee exercised proper care in approaching the crossing, and being on the fifth track before the «collision occurred, and having testified that he continued to use care while on the- crossing, it was clearly a case for the jury. •In the recent case of Beach v. Railroad Company, 212 Pa. 567 Mr. Justice Fell stated the rule applicable to the facts of the •present case wherein he said: “ Stopping is opposed to the idea ■of negligence, and unless notwithstanding the stop the - whole 'evidence shows negligence so clear that no other inference . can properly be drawn from it, tbe court cannot draw that inference as a conclusion of law, but must send the case to the jury.”

After a careful examination of the testimony, the charge of the trial judge and the arguments in the case, we are convinced that this was a case for the jury, and that no error has been committed in submitting it for their determination.

Assignments of error overruled and judgment affirmed.


author: Me. Justice Mesteezat,

text:
    Gorgas v. Philadelphia, Harrisburg & Pittsburg Railroad Company, Appellant.

      Railroads — Eminent domain — Damages—Division of land — Town lots— Witness.

    Where an owner of 150 acres of land divides ninety acres thereof into town lots, and subsequently a railroad company condemns a right of way through the ninety acres, the owner will not be permitted in condemnation proceedings to divide his land into two tracts, and to assess his damages for the injuries done to the ninety acre tract alone, as being the only part of the property affected by the appropriation.
    Where land has been divided into lots and subsequently a railroad company has condemned a right of way through such land, the owner will not be permitted to introduce testimony to show that the railroad would take so many lots shown on the plan of lots, and the average value of the lots.
    In railroad condemnation proceedings a witness as to land values cannot be interrogated in his examination in chief as to the money values of land similar to that under investigation.
    In railroad condemnation proceedings it is’error to admit in evidence an unrecorded paper plan of lots which were not marked on the ground, made twelve years prior to the time of the appropriation, and not including all. of the land as to which damages were to bo assessed.
    Argued April 25, 1906.
    Appeal, No. 101, Jan. T., 1906, by defendant, from judgment of C. P. Cumberland Co. Sept. T.,-1905, No. 5, on verdict for plaintiff in case of W. L. Gorgas and George A. Gorgas, executors of the estate of William R. Gorgas, deceased, v. The Philadelphia, Harrisburg & Pittsburg Railroad Company.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Appeal from report of jury of view. Before Sadler, P. J.
    The opinion of the Supreme Court states the case.

      May, 24, 1906 :

      Errors assigned were various rulings on evidence, sufficiently shown by the opinion of the Supreme Court.

      Conrad Hambleton, with him John W. Wetzel, for appellant,
    cited: R. R. Co. v. Stocker, 128 Pa. 233; Reiber v. R. R. Co., 201 Pa. 49; R. R. Co. v. Cleary, 125 Pa. 442; Grier v. Homestead Boro., 6 Pa. Superior Ct. 542; Erie, etc., R. R. Co. v. Smith, 125 Pa. 259; Penna. R. R. Co. v. Butler, 57 Pa. 335; Huntingdon, etc., R. R. Co. v. Decker, 82 Pa. 119; Pierson v. Duncan, 162 Pa. 187 ; Young v. Merkel, 163 Pa. 513; Burns v. R. R. Co., 213 Pa. 280; Hamilton v. R. R. Co., 190 Pa. 51.

      S. B. Sadler, with, him F. E. Beltzhoover, for appellees, cited:
    Pittsburg, etc., R. R. Co. v. Patterson, 107 Pa. 461; O’Brien v. Ry. Co., 194 Pa. 336 ; Wilson v. Equitable Gas Co., 152 Pa. 566; Warden v. Philadelphia, 167 Pa. 523; Gearhart v. Clear Spring Water Co., 202 Pa. 292; Griffin v. R. R. Co., 1 Montg. Co. 169 ; Danville, etc., R. R. Co. v. McKelvey, 1 W. N. C. 338; Setzler v. R. R. Co., 112 Pa. 56 ; Kossler v. Ry. Co., 208 Pa. 50; Penna. S. V. R. R. Co. v. Keller, 20 W. N. C. 125; Moser v. R. R. Co., 28 Pa. C. C. Rep. 73; Harrison v. R. R. Co., 36 Idaho, 323; Penna. S. V. R. R. Co. v. Cleary, 125 Pa. 442.
   Opinion by

Me. Justice Mesteezat,

It was error for the court below to permit the plaintiff to divide his farm into two tracts, of land and to assess his damages for the injuries done to one of the tracts. Since 1886, he has owned both tracts- and they are physically connected and have been used as one tract by him for agricultural purposes. In estimating his damages, therefore, occasioned by the defendant company’s appropriation of a strip of the land for widening, its right of way, the tract should have been considered as one body of land, and the well-established rule for determining the damages should have been applied to the whole tract and. not to a part of it: Schuylkill River, etc., R. R. Co. v. Stocker, 128 Pa. 233. As correctly said in that case (p. 251) : “ If a witness may select a portion of the whole property affected by the building of a railroad, and determine- the extent to which that alone is- damaged-, without valuing or even examining the remainder of the property, it is evident that both the letter and the spirit of the rule will be violated.” Plaintiff was entitled to recover the difference in the market value of the 150 acres of land immediately before and immediately after the defendant company had appropriated the strip for its use. Instead of applying this rule, the learned court permitted the plaintiff to show the damage done by the construction of the defendant’s road to ninety acres of the tract which it was alleged had been plotted and laid out in town lots in 1898. In adjusting the difference in the value of the whole tract before and after the appropriation by the company, the plaintiff could show any and all uses to which the laud or any part of it had been or might be applied. As elements of value, he was entitled to prove that the land or any part of it was ripe for building or any other purpose which would enhance its value. But his measure of damages was not the difference in value between the ninety acres, now utilized for building or any other advantageous purpose, before and after the construction of the road, but the difference in value between the whole tract of 150 acres before and after the appropriation by the defendant company. In other words, the plaintiff was entitled to have considered any and all proper elements of value of all or any part of his farm in determining the value of the farm before it was entered upon by the defendant, but the injury resulting from the defendant’s appropriation of a strip of the land was the depreciation of the market value of the whole tract and not a part of it. As against the injuries sustained by the plaintiff by reason of the appropriation of the defendant company for its right of way, the defendant was entitled to set off the advantages or benefits actual and special to the entire tract of the plaintiff’s land by reason of the construction of the railroad. It was therefore error for the court to permit the plaintiff to assess his damages against the ninety acres as “ the only part of the property of the plaintiffs which is affected by the appropriation of land by the railroad.” It is true that in his charge the learned judge gave the jury the proper measure of damages, but that did not cure the harm done in admitting the evidence complained of in the several assignments of error.

It was manifest error for the court to permit the plaintiff, in order to establish his damages, to introduce testimony showing that the railroad would take so many lots shown on the plan, and the average value of the lots. One of the witnesses, in reply to a question put by plaintiff’s counsel in chief as to the items of damages, said: “$3,000 for the lots taken. I base my judgment on the lots that are cut by the railroad company —almost fifty lots — when the plot of ground is thrown into the.market they ought to bring on an average of about $200 a lot. In this lot, where there are five acres, the ground taken by the railroad company is 1.14 acres, and I consider the ground they have taken will, according to that valuation, amount to $3,000.” In Penna. Schuyl. V. R. R. Co. v. Cleary, 125 Pa, 442, Mr. Justice Williams speaking for the court said (p. 452): “ Equally improper is evidence showing how many building lots the tract under consideration could be divided into, and what such lots would be worth separately. It is proper to inquire what the tract is .worth, having in view the purposes for which it is best adapted, but it is the tract, and not the lots into which it might be divided, that is to be valued. . . . The jury are to value the tract of land, and that only. They are not to determine how it could best be divided into building lots, nor conjecture how fast they could be sold, nor at what price per lot. . . .’ They are not to inquire what a speculator might be able to realize out of a resale in the future, but what a present purchaser would be willing to pay for it in the condition it is now in. This is a rule that is well settled, and the court should have drawn the attention of the jury to it so as to have left no room for uncertainty on their part. They should have been told that they had nothing to do with the subdivision of this tract, the price of the lots, or the probability of their sale; but that they were to ascertain the fair selling value of the land before and after the entry by the railroad company, in order to determine the actual damage done to its owner.” Such unquestionably is the rule in this state, and the trial judge should have adhered strictly to it in ruling on the offers of testimony as well as in his charge to the jury.

The question put to the witness Baughman to elicit his knowledge of the price at which the Sherban land was held should have been excluded. It was not necessary to admit it for the purpose of showing the witness’s knowledge as an expert, and the only effect of his testimony was to put before the jury a more or less speculative value of the Sherban property as a basis for assessing tbe damages in tbis case. It is quite true, as suggested by plaintiff’s counsel, that a witness may qualify himself to testify to the market value of property by showing that he has a knowledge of sales in the community and that he knows what property is held at in the community, but he cannot be interrogated in chief as to the money values of similar properties. This would be showing the general selling price of the property injured by evidence of particular sales of alleged similar property, which this court has uniformly held cannot be done : East Penna. R. R. Co. v. Hiester, 40 Pa. 53; P. V. & C. Ry. Co. v. Vance, 115 Pa. 325. The witness may be asked on cross-examination his knowledge of particular sales and the prices asked for property in the community for the purpose of testing his competency to testify, but such evidence in chief is clearly incompetent: Becker v. Phila. & Reading R. R. Co., 177 Pa. 252.

We think it was error to admit in evidence the plan of lots offered by the plaintiff. It purported to be a plot of lots laid out in 1893 in Lower Allen Township, Cumberland county, and covered the entire ninety acres of ground but excluded the residue of the plaintiff’s 150 acre tract. The plan was not recorded and had been changed since it was made' in 1893. The ground was not staked or marked off as shown on the plot, nor were any streets or roads marked on the ground conformable to those shown on the plan. This plan of lots, therefore, did not show the actual condition of the ninety acres at the time the defendant company appropriated a part of the land, nor did it show all the land owned by the plaintiff which was affected by the defendant’s appropriation. It simply showed an unrecorded paper plan of lots which were not marked on the ground, made twelve years prior to the time of the appropriation, and hence was not evidence that the ground was adapted to building purposes or had actually been devoted to such purposes. Any evidence which tended to show that the land was available for improvements, not simply capable of being laid out on a paper plan or on the ground even, was admissible, but this plot was not of that character and should therefore have been excluded. Its only effect would be to lead the jury to believe that the defendant company had appropriated so many lots or parts of lots as shown on the plan, and thereby enable the jury to erroneously ascertain the damages by allowing the plaintiff the supposed value of those lots. Parol testimony was not admissible to show that the land taken could be laid out into a certain number of lots for the purpose of determining the damage done the plaintiff, and this plan was equally incompetent for that purpose.

There may be some merit in the defendant’s allegation that the charge was not adequate nor strictly impartial. If so, the learned judge will no doubt profit by this suggestion on the next trial, and observe what has been said by this court in some recent cases as to the duty of the trial court in submitting this class of cases to the jury.

There are other errors in the record covered by some of the numerous assignments of error to which we have not adverted and which need not be noticed, as they may be attributable to omissions in transcribing the notes, as suggested in the plaintiff’s argument, and will, of course, not occur on another trial.

The assignments of error are sustained so far as the matters complained of therein are in conflict with the views above expressed, and the judgment is reversed with a venire facias de novo.


author: Mr. Justice Mestbezat,

text:
    Cox v. Philadelphia, Harrisburg & Pittsburg Railroad Company, Appellant.

      Railroads — Eminent domain — Measure of damages — Profits—Map—Evidence.

    The measure of damages for land taken or injured by a railroad company under the right of eminent domain is the difference in the market value of the tract as a whole before the taking and afterwards as affected by it. In adjusting this difference, the landowner is entitled to have the jury take into consideration the value of his property for any and every purpose or use to which it may be adapted, and to have the damages assessed upon a basis of the most valuable use to which the property may be adapted. On the other hand, the railroad company is entitled to any benefits or advantages which may accrue to the part of the tract of land, not taken or injured, by reason of the construction of the improvement.

      No allowance of damages for an actual or supposed loss of business profits carried on upon the premisos can be made.
    A landowner is not limited to any one use for which his property may be available, but ho is entitled to have its value considered for any and all purposes for which it can be used. He may, therefore, show by any competent testimony, expert or otherwise, that it is specially valuable for a certain particular purpose, such for instance as the raising of ducks. He will not, however, be permitted to show how many ducks he raised, or could raise in a year; nor will his witnesses be permitted to base the estimate of damages upon the profits which they thought the owner would derive from the duck-raising business.
    In such a ease the defendant railroad company cannot show that the use of the land as a duck farm would pollute the stream passing through it, and thereby prevent the use of the land for duck-raising purposes. Such a question is a collateral issue relating to matters between the owner and the lower riparian owners, and the railroad company in condemnation proceedings is not in a position to raise it.
    In railroad condemnation proceedings it is proper to reject a map which is shown to be an incorrect representation of the ground, and made by a party who had not the data from which he could make an accurate map.
    Argued April 25, 1906.
    Appeal, No. 100, Jan. T., 1906, by defendant, from judgment of C. P. Cumberland Co., Sept. T., 1905, No. 4, on verdict for plaintiff in case of R. G. Fox v. The Philadelphia, Harrisburg & Pittsburg Railroad Company.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Appeal from award of jury of view.
    Verdict and judgment for plaintiff for $5,000. Defendant appealed.

      Errors assigned were various rulings on evidence referred to in the opinion of the Supreme Court.

      John W. Wetzel, of Wetzel Eambleton, for appellant.
    Profits cannot be considered as an element of damages: Penna. R. R. Co. v. Eby, 107 Pa. 166 ; P. & W. R. R. Co. v. Patterson, 107 Pa. 461; Hamilton v. R. R. Co., 190 Pa. 51.

      F. E. Beltzhoover, with him S. B. Sadler, for appellee.
    The offer as to the pollution of the stream was properly refused for the reason that it raised a collateral issue and was res inter alios: Coal Co. v. Sanderson, 113 Pa. 126; Hauck v. Pipe Line Co., 153 Pa. 366; Hayes v. Waldron, 44 N. H. 580 ; Lockwood Co. v. Lawrence, 77 Me. 297; Baltimore v. Warren Mfg. Co., 59 Md. 96; Barnard v. Sherley, 135 Ind. 547 (34 N E. Repr. 600); Roller Mills v. Wright, 30 Minn. 249 (15. N. W. Repr. 167) ; Hazeltine v. Case, 46 Wis. 391 (1 N. W. Repr. 66).
    May 24, 1906:
   Opinion by

Mr. Justice Mestbezat,

This was a proceeding in the court below to assess the dam-,ages sustained by the plaintiff by reason of the defendant company’s appropriation of á strip of his land for widening its right of way. The viewers having reported in favor of the plaintiff, the defendant appealed to the common pleas, in which an issue was framed and the case was tried before a jury, resulting in a verdict and judgment for the plaintiff. The defendant has appealed to this court.

It is well settled that the measure of damages for land taken or injured by a railroad company under the right of eminent domain is the difference in the market value of the tract as a, whole before the taking and afterwards, as affected by it. In adjusting this difference, the landowner is entitled to have the jury take into consideration the value of his property for any and every purpose or use to which it may be adapted, and to have the damages assessed upon a basis of the most valuable use to which the property may be adapted. As said by the present Chief Justice in Harris v. Railroad Company, 141 Pa. 242: “ In estimating the value of the lot before the taking, its possible and probable uses are important elements, and may be shown by the opinion of experts.” On the other hand, the defendant company is entitled to any benefits or advantages which may accrue to the part of the tract of land, not taken or injured, by reason of the construction of the improvement. In ascertaining the damages, therefore, the jury must take into consideration the value of the land for the uses to which it has been or may be applied, and the special advantage the construction of the road may be to the residue of the tract through which it is constructed.

While these general principles, applicable to the assessment of damages in condemnation proceedings, are well settled, there is another rule which has been recognized and enforced .for more than three-quarters of a century in this state, which prohibits the landowner from having the profits of his business ' considered by the jury in determining the value of the property 'which is affected or injured by the improvement. “ We have so often said,” says Mr. Justice Green in Becker v. Philadelphia & Reading R. R. Co., 177 Pa. 252, “that the profits of business could not be recovered in condemnation proceedings that it seems like a waste of time to cite the decisions. As far back as Thoburn’s Case, 7 S. & R. 411, it was held that, in estimating the damages done to the landowner, the jury are to value the injury to the property at the time the injury was suffered, without reference to the person of the owner or the state of his business. The allowance of damages for an actual or supposed loss of profits in a business carried on upon the premises by reason of the taking, was most emphatically condemned in the opinion, and that decision has been followed by 'this court from that day to this. . . . After stating the injustice of allowing for the profits of business to be carried on, the Chief Justice added (in Thoburn’s Case), ‘That would make the defendant an insurer of ordinary profits in a new state of the business, pushed to a morbid extent, and would put it •in the power of the plaintiff to increase the damages to any extent be might think proper. I mention this to show the danger of taking into consideration circumstances posterior to the time when the privilege is fully entered on, and its consequences to the individual to be compensated are ascertained.’ ” Pittsburg & Western Railroad Co. v. Patterson, 107 Pa. 461, originated in a proceeding for the assessment of damages occasioned by reason of the location of the defendant’s road through the plaintiff’s land. In delivering the opinion in that case, Mr. Justice Clark said (p. 464) : “ The use to which the property has been or may be applied is proper for the consideration of the jury, in the estimate of its value, its adaptation for any particular purpose may enchance its market value, but the court was certainly correct in saying that the jury could not take into consideration any supposed loss to the plaintiff, of profits in his business. Such an assessment would be purely speculative, and the rule which justified it would lead to most ruinous results. If the property, by reason of its location or otherwise is especially adapted to any particular use to which it is applied, if it is worth more for that particular use than for any other, its market value will be measured accordingly.”

In the case at bar it was proper for the plaintiff to call witnesses to show the uses or purposes for which his land was specially adapted, including that of duck raising. The landowner, in condemnation proceedings, is not limited to any one use for which his property may be available, but he is entitled to have its value considered for any and all purposes for which it can be used. He may, therefore, show by any competent testimony, expert or otherwise, that it is specially valuable for a certain particular purpose and that purpose must enter into its value before the jury. So, here, it was proper for the plaintiff to show by competent expert testimony the value of his property for duck-breeding purposes, and the jury was required, in passing upon the case, to take into consideration its value for that purpose. But in every case of this character the parties to establish their contention are required to produce competent testimony, and the question of competency was one for the court to determine. The plaintiff called at least four witnesses as experts to show the value of his farm for duck-raising purposes. Conceding that they disclosed sufficient knowledge of the business to make them competent to testify as to the adaptability of the property for a duck farm, their testimony clearly showed that their valuation of the property for such purpose rested upon an erroneous basis, the profits which the plaintiff would realize out of the business conducted upon the land. Mr. Stouffer fixed the plaintiff’s damages, by reason of the construction of the road through the premises, at $8,000. Of this sum he allowed $6,000 as the value of a pen on the premises destroyed by the defendant company. In testifying as to this item of depreciation, he said: “ That will depreciate the capacity about 2,000 ducks a year — our books will show twenty per cent apiece profit on a duck; that will be $400 a year. I arrive at that conclusion in this way — that is not taken for one year — it is taken for all time. ... If we were in business for twenty years — and there is no reason why we should not be— that would be $8,000 loss, without any interest.” Mr. Cox, the plaintiff, fixed the damages at about $10,000. He said the land was worth $1,500 as land and that the encroachment of the railroad on the part of the land used as a duck farm had reduced its capacity or output to the extent of a capitalization of $8,000. He testified : “ Q. How much of the $8,000 do you estimate as loss to the farm as a duck farm? A. It reduces their output to that extent. Q. How much ? A. About $500 or $600 a year — It reduced the breeding pens so that the eggs laid and the ducks produced are less by at least 2,000 per year — 2,000 marketable ducks. Q. And you calculate so much profit on each duck? A. Yes. Q. What profit do you count on that? A. The duck people usually get twenty cents per duck. Q. Is that the way you estimate the $8,000 by estimating the profits ? A. Yes.” Mr. Morgan, another witness, estimated the plaintiff’s damages at from $8,000 to $10,000. He thought the space cut off on the water front would be sixty feet, and based his estimate of the damages on that fact. He testified: “ Well that (sixty feet) will accommodate even breeding ducks, which would produce 6,000 ducks; I figure fifteen cents profit — that represents a loss of $900 a year.” George Woods, called by the plaintiff, fixed the damages at $8,000. His manner in arriving at this sum as damages is stated in his testimony as follows: “ You could handle about 200 breeders there, which would produce eggs enough from which you could probably market 6,000 ducks, at, say, from fifteen to twenty cents apiece profit — or it could be used as a fattening pen for fattening ducks. I think 2,000 can be handled in that building in a season, in a year, and from those 2,000, judging from the market profits, $400 should be derived.” William Nicholson, another witness, places the damages at from $8,000 to $10,000. His estimate was based upon the fact that the defendant company destroyed the best duck pen on the promises, in which 2,000 ducks could be raised for the market in a season and that would decrease the capacity of the farm to that extent. His estimate was fixed by allowing twenty cents profit on each duck raised.

At the close of the case, the defendant’s counsel moved to strike out that part of the testimony of the above witnesses relating to the value placed by them on the injuiy done to the plaintiff’s property, but the motion was denied. The testimony discloses the fact that the witnesses arrived at their conclusion as to the damages sustained by the plaintiff on an erroneous basis. Their estimates were made upon the profits which they thought the plaintiff would derive from the duclr-raising business. Such basis was entirely too uncertain and speculative to permit it to enter into any calculation or estimate of the damages which the plaintiff sustained by reason of the construction of the defendant’s road through his premises. In speaking of the manner of estimating the value of land in eminent domain cases by considering the profits realized therefrom, Mr. Justice Williams in Reading & Pottsville Railroad Co. v. Balthaser, 126 Pa. 1, said (p. 10) : “We held (on a former appeal of the same case) that such a method for fixing the value of the land was speculative, and could not be applied to land taken b}^ virtue of the right of eminent domain. It involves an uncertain estimate of the quantity and quality of the stone, includes necessarily the use of labor and capital, requires skill and intelligent supervision on the part of the operator, and vigilence and success in the financial management. No human tnind can foresee the presence of these elements of business success, or forecast the profit or loss of actual operations, if the stone be removed at the ordinary rate of quarrying.” We are clearly of opinion that the defendant’s motion should have been allowed and that the estimates of the witnesses as to the value of the plaintiff’s land and the damages suffered by the construction of the road through it should have been struck from the record.

The court did not err in excluding the map offered in evidence by the defendant company. It was not shown to be a correct representation of the ground taken nor of the buildings affected; on the other hand, it appeared by the testimony of the party who made it that he did not have the data from which he could make an accurate map. In the trial of cases of this character, there should be a map of the locus in quo, as it aids most materially the court as well as the jury in the consideration of the case. From the evidence before us, it is difficult to determine the location of the spring or the buildings or the course of the stream with reference to the strip of land condemned.

The offer by the defendant to show that the use of the plaintiff’s land as a duck farm would pollute the stream passing through it and thereby prevent the use of the land for that purpose, was properly rejected as raising a collateral issue which could not be determined in this case. Whether the lower riparian owners would object to such use of the land was uncertain and purely speculative; and if they did, non constat that the objection could not, at small expense, be removed. At all events, the defendant company is not in a position to assert the rights of the lower riparian owners who alone have an action against the plaintiff here for any injury which they may sustain by an interference with the purity or flow of the stream.

The eighth assignment must be sustained notwithstanding the attempt to cure the error in the general charge. The plaintiff had the right, as we have held, to show that his farm was adapted to the use of and was valuable for duck raising, but he could not show the average number of ducks he raised on the farm each year. While in one sense such testimony would show the productive capacity of the farm per year, it would also afford the jury an opportunity to estimate the profits of the land. The plaintiff could show by competent testimony the acreage of his land and also its adaptability for the duck business by reason of its location, water, etc., which the jury was required to consider as an element of value; but when he was permitted to show that he produced from 45,000 to 50,000 ducks per year it furnished the jury the data from which it could and doubtless did ascertain the profits of the business which it used as a basis in determining the market value of the plaintiff’s property. The number of ducks the plaintiff may produce on the land in the future depends upon so many contingencies that any estimate thereof would be purely spec< ulative and should not go to the jury even as evidence of the productive capacity of the farm.

The assignments of error are sustained so far as the matters complained of therein are in conflict with the views above expressed and the judgment is reversed with a venire facias de novo.


author: Pee Cubiam,

text:
    Brownell v. Oviatt, Appellant.

      Mortgage — Bond—Evidence.
    At the trial of a scire facias sur mortgage, the mortgage may be admitted without the accompanying bond. In such a case there is a presumption that the bond has not been discharged.

      Mortgage — Presumption of payment — Evidence.
    A lapse of less than twenty years from the time a mortgage became due if aided by other circumstances to support it as a presumption of payment, may be submitted to the jury as a ground for presuming the fact of payment; but where there are no other circumstances tending to support the presumption of payment, and there is evidence that the mortgage had not been paid, the court may give binding instructions for the plaintiff on a scire facias on the mortgage.
    Argued April 30, 1906.
    Appeal, No. 259, Jan. T., 1905, by defendant, from judgment of C. P. McKean Co., Oct. T., 1903, No. 196, on verdict for plaintiff in case of Fred W. Brownell, Administrator of the Estate of Miller C. Stickles, v. Carrie A. Oviatt, Administratrix of the Estate of Catherine M. Oviatt, deceased, and Carrie A. Oviatt, Terre-tenant.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Scire facias sur mortgage. Before Thomas, P. J.
    At the trial it appeared that on September 1,1883, Catherine M. Oviatt executed the mortgage in question to her brother, Miller C. Stickles, to secure the payment of $1,898.81, of which $300 was payable on January 1,1884, and the balance in eight equal annual installments thereafter. It was provided on default in the payment of any installment the whole should become due.
    Other facts appear by the opinion of the Supreme Court.
    The court gave binding instructions for plaintiff.
    Yerdict and judgment for plaintiff for >$4,363.46. Defendant appealed.

      Errors assigned among others were (8) in admitting in evidence the mortgage without the accompanying bond; (7) in giving binding instructions for plaintiff.

      Rufus B. Stone, with him Allan Oviatt and John A. Apple, for appellant.

      E. R. Mayo, of E. R. Mayo Son, for appellee.

      May 24, 1906 :
   Pee Cubiam,

One of the errors assigned is that the mortgage was admitted in evidence without the accompanying bond. If the bond had been paid, its payment would have been a complete defense to the suit on the mortgage, but the burden was upon the appellant to show that it had been paid. The appellee’s suit was on the mortgage — a cause of action separate and distinct from that on the bond — though both were for the same debt. In proceeding on either it is not incumbent on a plaintiff to show that the other has not been paid. In an action on the bond, when the holder produces it, there is a presumption that the mortgage has not been satisfied, and so in a proceeding on the mortgage against the land, there is a like presumption that the bond has not been discharged. The objection to the offer of the mortgage without the bond was properly overruled.

The real complaint of the appellant is that the jury were directed to find for the plaintiff. This direction could not have been withheld. The mortgage was, executed on September 1, 1888, to secure the payment of a bond for $1,898.81, payable in installments, the first, for $300, becoming due on January 1, 1884. On August 26, 1903, this scire facias was issued, and the law had raised no presumption of payment from lapse of time. A lapse of less than twenty years, if aided by other circumstances to support it as a presumption of payment, may be submitted to the jury as a ground for presuming the fact of payment: Moore v. Smith, 81 Pa. 182; but there were no other circumstances in this case tending to support the presumption of payment. On the contrary, as appears from the evidence submitted by the defense, the mortgage had not been paid. There was, however, evidence of an intention by Miller C. Stickles, the uncle of the appellant, to release the mortgage; but this intention was never executed, and he left no direction that it should be executed. When he died the mortgage remained an asset of his estate. This is the whole case, and while the appellant most naturally complains of her disappointment, the law cannot help her.

Judgment affirmed.


author: Pee Cueiam,

text:
    Lamb v. Pike Township, Appellant.

      Negligence — Natural gas companies — Townships—Roads—Pipe as a danger to travel.

    Though the Act of May 29, 1885, P. L. 29, permits a natural gas company to lay its pipes “upon and over, under and across” public roads, permission is not given to such company to so lay its pipes as to make travel over public highways unsafe; nor does the act relieve township authorities from seeing that the roads under their supervision continue to be safe for public travel, notwithstanding the location of gas pipes upon them.
    If a pipe as laid on a public highway becomes a dangerous obstruction to travel, it is the duty of the township authorities to abate the danger, or to take such action as will protect the public from it when using the highway kept open as an avenue for travel, which must always be safe.
    Argued April 30, 1906.
    Appeal, No. 335, Jan. T., 1905, by-defendant, from judgment of C. P. Potter Co., Sept. T., 1903, No. 177, on verdict for plaintiff in case of D. H. Lamb v. Pike Township.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries, alleged to ' have been sustained by permitting a natural gas pipe to remain as an obstruction in a highway. Before Obmebod, P. J.
    The plaintiff’s statement averred, inter alia, as follows :
    At a point upon the said highway leading from West Pike in the said township to the borough of Galeton, about one and one-third miles west of the boundary line of said Galeton borough in the said township of Pike where the said road passes along and over a dangerous dugway, the' said defendant with full knowledge of its existence permitted a dangerous obstruction to be and remain in and upon the said highway, to wit: a gas pipe to be and remain uncovered for a space of about seventy feet running- along and in the traveled track of the said highway upon the said dugway and in close proximity to the edge of the bank. The exposed portion of the said gas pipe being of the height above the ground varying from two to eight inches, thereby rendering it unsafe and dangerous for teams and wagons passing over and upon the said highway at the point mentioned, to wit: for a space of about seventy feet, where the said gas pipe remained uncovered and exposed above the ground. The said gas pipe being a continuous gas line and firmly imbedded in the ground at other points, and at the time complained of in the manner aforesaid a solid and immovable obstruction in the said highway at the place aforesaid.
    May 24, 1906:
    And the said plaintiff while driving and riding along the said public highway with others in a wagon on June 5, 1903, without any negligence or carelessness on his part, and while exercising due caution and diligence and not knowing the dangerous condition of the said highway at the place mentioned was violently thrown from the said wagon to the bed of the road by reason of one of the wheels of said wagon dropping over the said obstruction, to wit: the gas pipe aforesaid, causing the wheel of the said wagon to break and frightening the horses attached to the said wagon, whereby they became unmanageable and ran for some distance along the said highway.
    Verdict and judgment for plaintiff for $5,000. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      John G. Johnson, with him A. W. Crandall, W. I. Lewis, Arch. E. Jones and B. Li. Lewis, for appellant.

      A. /S'. Seek with him W. K. Swetland, for appellee.
   Pee Cueiam,

Though the Act of May 29,1885, P. L. 29, permits a natural gas company to lay its pipes “ upon and over, under and across ” public roads, permission is not given to such company to so lay its pipes as to make travel over public highways unsafe ; nor does the act relieve township authorities from seeing that the roads under their supervision continue to be safe for public travel, notwithstanding the location of gas pipes upon them. On this manifestly correct theory the claim of the appellee for compensation for the injuries sustained was submitted to the jury. If a pipe as laid on a public highway becomes a dangerous obstruction to travel, it is the duty of the township authorities to abate the danger, or to take such action as will protect the public from it when using the highway kept open as an avenue for travel, which must always be safe.

Complaint is made that the gas company, and not the township, ought to have been sued, because the act provides “ that any company laying a pipe line under the provisions hereof shall be liable for all damages occasioned by reason of the negligence of such gas company.” It is a sufficient answer to this to say that it is not the negligence of the gas company of which the appellee complains. His complaint is of the negligence Of the township. If the gas company was negligent, its negligence is not a question involved in this proceeding.

Judgment affirmed.


author: Pee Curiam,

text:
    Palmer v. Pittsburg, Shawmut & Northern Railroad Company.

      Receivers — Railroads—Appeals—Bond—Act of May 19, 1897 — Quashing appeal.

    Where the receiver of a railroad company fails to intervene in a pending suit against the company, and judgment is entered in sdch suit for plaintiff, an appeal taken by the receiver after filing an unapproved bond for a nominal sum only, will be quashed.
    Argued April 30, 1906.
    Appeal, No. 356, Jan. T., 1905, by Frank Sullivan Smith, receiver of Pittsburg, Shawmut & Northern Railroad Company, from judgment of C. P. McKean Co., Oct. T., 1904, No-. 100, on verdict for plaintiff in ease of W. S. Palmef v-. Pittsburg, Shawmut & Northern Railroad Company.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Appeal quashed.
    Trespass to recover damages for personal injuries. Before Bouton, P. J.
    The opinion of the Supreme Court states the ease.
    Verdict and judgment for plaintiff for $5,847. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      May 24, 1906 :

      John G. Johnson and Thomas F. Richmond, of Gorton <f- Richmond, with them Tait Jones, for appellant.

      F. JD. Gallup and John F. Mullin with them V. B. Bouton, for appellee.
   Pee Curiam,

This action was brought against the Pittsburg, Shawmut & Northern Railroad Company. On November 17,1905, the case was called for trial, and on the day following a verdict was rendered in favor of the plaintiff for $5,847. It seems that this appellant was appointed receiver of the defendant company on August 1, 1905, but he never intervened in the suit and defended in his representative capacity. The judgment was against the railroad company alone, and from it the company could not have appealed without giving the bond required by section 6 of the Act of May 19,1897, P. L. 67. The company did not appeal, but the receiver, without ever having become a party to the record, took this appeal, filing in the court below an unapproved bond in the nominal sum of $100, which contains conditions not to be found in the act of 1897. The motion to quash the appeal must prevail. If it had been taken by the railroad company on such a bond as was filed by the receiver, we would be required to quash it. When he might have defended in his representative capacity, he failed to do so. He appeared only after judgment was entered against the company, and even then without leave of court. His right to appeal under the circumstances, without giving the bond required by the act of assembly to secure to the appellee the payment of the judgment recovered against the railroad company, cannot be recognized.

Appeal quashed.


author: Mr. Justice Potter,,

text:
    American Car & Foundry Company, Appellant, v. Alexandria Water Company.

      Mechanic’s lien — Notice—Sworn statement — Contract—Act of June 4, 1901, P. L. 431.
    Under the Act of June 4, 1901, P. L. 431, relating to mechanics’ liens, it is not necessary to set out a copy of the notice to the owner in the claim itself. An averment of the date when, and the manner in which, the notice was served, is a sufficient compliance with the requirements of the act.
    The notice and sworn statement provided by the Act of June 4, 1901, P. L. 431, are sufficient to sustain a lien for water pipe, where' such notice and statement set forth the contract, and specifications as to the size, weight and price of the water pipe, with averments as to the kind of pipe furnished, the amount due, the manner in which such amount was made up, and the date when the last of the material was furnished. In such a ease it is not necessary that the notice should allege that the materials were furnished in accordance with the specifications of the contract.
    A bill of particulars annexed to a mechanic’s claim and filed therewith is to be taken as part of the lien.
    It cannot be objected to a mechanic’s lien filed under the Act of June 4, 1901, P. L. 431, that the lien is defective because the bill of particulars did not set forth “the kind of materials furnished” where it appears from the claim, the bill of particulars and the notice filed with it taken as a whole, that there could be no possible misunderstanding as to “the kind of materials furnished.”
    An objection to a mechanic’s lien that it does not contain any averment that the material was shipped in accordance with the specifications of the contract, is unfounded, where it is expressly alleged that under the contract the subcontractors furnished the materials set forth in the bill of particulars.
    A substantial compliance with the Act of June 4, 1901, P. L. 431, is sufficient, and this is shown to exist wherever enough appears, on the face of the statement, to point the way to successful inquiry. Adherence to the terms of the statute is indispensable, but the rule must not be pushed into such niceties as serve but to perplex and embarrass a remedy intended to be simple and summary, without in fact, adding anything to the security of the parties having an interest in the building sought to be encumbered. Certainty to a common intent has, therefore, always been held to suffice.
    Argued April 17, 1906.
    Appeal, No 92, Jan. T., 1906, by plaintiff, from order of C. P. Huntingdon Co., May T., 1905, No. 23, striking off mechanic’s lien in ease of American Car & Foundry Co., Subcontractor, v. Alexandria Water Company, Owner or reputed owner, and William M. Powell & Co., Contractor.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Reversed.
    Rule to strike off mechanic’s lien. Before Woods, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was the order of the court striking off the lien.

      H. H. Waite, with him C. C. Evans, for appellant.
    It will be observed from an inspection of the act of 1901, that it does not require the subcontractor to give to the owner a detailed statement in the notice, such as is required in the mechanic’s lien, yet the subcontractor in this case in its notice, did set out in detail the kind and character of the materials funished with as much particularity as is required in the lien itself. The act does not require the subcontractor to give the kind and character of the materials furnished in the notice. It only requires that the kind of material and the date when the last material was furnished, the amount the subcontractor claims to be still due, and how made up. All these, and even much more, is embraced in the notice served upon the owner in this case. We contend the act has been complied with in every respect, and that the court below was clearly in error in assigning this as a reason for striking off the mechanic’s lien: Thirsk v. Evans, 211 Pa. 239.
    All that is necessary is a substantial compliance with the act of assembly: Este v. Penna. R. R. Co., 27 Pa. Superior Ct. 521; Lyon v. Mahon, 14 Pa. 56; McClintock v. Rush, 63 Pa. 203; Rush v. Able, 90 Pa. 153.
    The bill of particulars was in proper form: Munger v. Silsbee, 64 Pa. 454; Haviland v. Pratt, 1 Phila. 364.

      Samuel I Spyker and Thomas F. Bailey, for appellee.
    A mechanic’s lien, being purely statutory, there is no intendment in its favor, and it should show upon its face all the statutory requisites to its validity: Warton et al., v. Investment Co., 180 Pa. 168 ; Knelly v. Horwath, 208 Pa. 487 ; Wolf Co. v. Penna. R. R. Co., 29 Pa. Superior Ct. 439 ; Collins v. R. R. Co., 29 Pa. Superior Ct. 547.

      May 24, 1906:
   Opinion by

Mr. Justice Potter,,

Two questions are raised by this appeal. 1. Whether or not the notice of the intention, on the part of the plaintiff to file a lien, complied with section 7 of the Act of June 4, 1901, P. L. 481. 2. Whether or not the lien filed by the plaintiff in this case complied with section 11 of the same act.

As to the notice, section 8 provides that “ any sub-contractor intending to file a claim, must give to the owner written notice to that effect, together with a sworn statement setting forth the contract under which he claims, the kind of labor or materials furnished, and the date when the last work was done, or materials furnished. Such notice and statement must be served at least one month before the claim is filed, and within three months after the last of his work was done or materials furnished, if he has six months within which to file his claims.”

Clause 11, of section 11 of the act, requires that when the contract is with other than the owner, the claim shall set forth when and how notice was given to the owner of an intention to file the claim. We decided in Thirsk v. Evans, 211 Pa. 239, that it is not necessary to set out a copy of the notice in the claim. An averment of the date when, and the manner in which, the notice was served is a sufficient compliance with the act in this respect. In the present case the notice and statement set forth in detail all that is required by the act. First, the contract under which the claim is made, comprising a series of letters which contain definite specifications of the size, weight and price of the cast iron bell and spigot water pipe, which was to be furnished to the contractor. Second, the amount due is set forth, and the date from which interest is claimed thereon. Third, the manner in which the claim is made up, appears, the statement showing it to be for a definite number of pounds, with the date on which it was furnished, and the price per ton, and per pound. Fourth, the kind of material furnished is set forth, as cast-iton water pipe, four and six inch, and also some special shapes. And, lastly, the date when the last of the said cast-iron water pipe was furnished, is given. The notice was evidently carefully prepared, with the intention of complying accurately with the act.

Cbunsel for appellee object to the notice, and allege that the kind of material furnished is not shown with sufficient definiteness. We think the criticism is far-fetched. The notice stated that the kind of materials furnished was “ cast-iron water pipe, four and six inch, and specials.” The letters constituting the contract stated the weight and price of the various sizes of water pipe to be furnished. The statement of how the amount claimed is made up shows the number of pounds of each size of pipe furnished and the price charged. While the different sizes of pipe are not set out in this account, the respective prices are, and the various classes are thus clearly indicated. The maxim “ Id certum est quod certum reddi potest ” aptly applies. For instance, the first item of the account is 6,630 pounds of pipe at §31.00 per net ton. Turning to the correspondence we find that this was the contract price for four inch pipe. The second item is 31,314 pounds at §30.00 per net ton, which was the contract price for six inch pipe. Other items are charged at two and three-fourths cents per pound, which was the contract price for the special shapes. The notice would have given the owner no additional information as to the respective sizes of the pipe furnished, if they had been set out in detail with each item of the account. The prices agreed upon were by the pound, and therefore it was manifestly proper to state the account by the pound.

As to the objection that the notice does not allege that the materials were furnished in accordance with the specifications of the contract, the act does not prescribe such an averment. But the sworn statement which is part of the notice does aver that the letters, copies of which were contained in it, showed “ the contract under which the said cast-iron water pipe and specials were furnished.” If an averment such as appellee contends were necessary, this would certainly answer.

The court below has not indicated in what particulars the notice does not, in its opinion, comply with the act of assembly. It is difficult to see how a notice more strictly complying with the act could be drawn, although substantial compliance is all that is necessary. “ The object of the notice,” it is said in Thirsk v. Evans, 211 Pa. 239, “ is to inform the owner of the demand, and the nature thereof,” in order that he may protect himself in the manner provided in the act. The notice given was amply sufficient for this purpose.

Now as to the sufficiency of the claim. It would have been better practice, if the wording of the act had been closely followed, and each requirement complied with in a separate paragraph. The statute numbers the requisite facts to be set forth, and it would be well to follow the order of the statute. If, however, the essential requirements are substantially complied with, it is sufficient.

The provisions of the act involved in this feature of the controversy are as follows : By section 11 of the Act of 1901, P. L. 431, the claimant is required to set forth, inter alia, “ (4) a copy of his contract or contracts, if in writing, or a statement of the terms and conditions thereof, if any of them are verbal; (5) the kind and character of the labor or materials furnished, or both. (6) When the contract is with other than the owner or not for an agreed sum, a detailed statement of the kind and character of the labor or materials furnished, or both, and the prices -charged for each thereof; (11) When the contract is with other than the owner, when and how, notice was given to the owner of an intention to file the claim.”

It is suggested in behalf of appellee that the claim is fatally defective in failing to state the kind and character of the materials furnished with the particularity required by the act. But the claim asserts, “ That under said contract with the said Wm. M. Powell & Company, contractor, the said American Car & Foundry Company sub-contractor, furnished the materials set forth in the bill of particulars attached hereto and marked Exhibit A, and which bill the said claimant prays, may be taken and made a part of this lien, said materials being furnished by the said claimant upon the credit of the said pipe line, water works plant and system, rights, franchises and privileges of said water company, at the times, in the quantities and at the prices set forth in said bill of particulars.”

This court has repeatedly held, under prior similar statutes, that the bill of particulars is to be taken as part of the lien. Thus in Wilvert v. Sunbury Boro., 81 * Pa. 57, it is said The bill of particulars annexed to the statement is as much a part of it, as if it had been incorporated in the statement itself.” To the same effect is School v. Gerhab, 93 Pa. 346.

It may be that the bill of particulars considered by itself, and as a detached paper, if it contains only dates, pounds, prices and amounts, does not designate “ the kind of materials furnished.” But reading the contract as made up by the letters, and. taking the claim, the bill of particulars and the notice filed with it, as a whole, it is not possible to misunderstand that “pounds,” meant pounds of cast-iron water pipe, and that the price of $81.00 per net ton applied under the contract to four inch pipe, and $30.00 to six inch, and eight inch pipe, and that two and three-fourths cents per pound was the price of the special shapes furnished. It appears from the amendment filed on October 4, 1905, that 68,055 pounds of eight inch pipe was furnished and paid for. By the contract it seems that thirty-four tons of eight inch pipe were required. This would be 68,000 pounds. It is therefore apparent from the claim, bill of particulars and amendment, that the remaining pipe furnished at $30.00 a ton and not paid for was all six inch pipe.

Appellee also objects to the claim because it does not contain any averment that the pipe was shipped in accordance with the specifications of the contract. But it is expressly alleged that “under said contract with Wm. M. Powell & Company, contractors, the said American Car & Foundry Company, subcontractor, furnished the materials set forth in the bill of particulars.” This is certainly a sufficient averment of this fact. There is no substance in the objection that the notice claims a lien for materials furnished between September 23 and November 27, 1903, while the lien filed contains items from September 17, to November 27, because it plainly appears that credits are allowed for payment of all matertial furnished prior to September 23. The notice and claim, therefore, correspond as to all items for which a lien is claimed.

Justice Bell gave utterance to a principle, in considering the act of 1836, which is equally appropriate to the statute now before us. In Knabb’s Appeal, 10 Pa. 186, he said (p. 188) : “The formal objections to the statements of the claims in question are made under the twelfth section, of the act of 1836. The great object of its several provisions is notice, and it has been truly said, an observance of them is essential to the safety of owners, purchasers, and other lien creditors, as furnishing some data by which, in case of dispute, they may be enabled to ascertain the truth: Noll v. Swineford, 6 Pa. 187. But all the cases agree that a substantial compliance is sufficient, and this is shown to exist wherever enough appears, on the face of the statement, to point the wray to successful inquiry. Adherence to the terms of the statute is indispensable, but the rule must not be pushed into such niceties as serve but to perplex and embarrass a remedy intended to be simple and summary, without in fact, adding anything to the security of the parties having an interest in the building sought to be encumbered. Certainty to a common intent has, therefore, always been held to suffice.”

The court below has not stated any reasons for holding that the lien does not substantially comply with the requirements of the law, and our examination of the case, has satisfied us that it does.

The order of the court below striking off the lien, is therefore reversed, and the lien is reinstated.