text:
    Evans v. Wilmer, Appellant.

      Mortgage—Proceeding in rem—Release of bond—Scire facias.

    An action of scire facias sur mortgage is purely a proceeding in rem.
    A mortgagor whose bond has been released and who has no longer any interest in the land, cannot be permitted to defend in an action on a scire facias.
    Where judgment is entered on a scire facias sur mortgage under a stipulation that execution shall not issue until certain mortgages and judgments shall have been satisfied by plaintiff, certain bonds surrendered and that the sheriff’s advertisement shall state that the judgment does not bind defendant personally, and all of these conditions have been complied with, the defendant has lio right to appeal from the judgment, and if he does so the judgment will be affirmed.
    Argued Jan. 5, 1905.
    Appeal, No. 180, Jan. T., 1904, by defendants, from order of C. P. No. 5, Pbila. Co., Dec. T., 1908, No. 2790, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Francis Evans v. Samuel S. Wilmer and John P. Smith.
    Before Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Scire facias sur mortgage.
    Rule for judgment for want of a sufficient affidavit of defense.
    The facts appear by the opinion of the Supreme Court.

      JError assigned was the order of the court making the rule absolute.

      William II Peace, for appellant.
    As a mortgage in Pennsylvania is only a security for the payment of money or performance of other collateral contract, it should be satisfied and canceled upon performance by mortgagor. A mortgage is a bare encumbrance and the accessory of a debt. As between the parties it is a conveyance so far as is necessary to enforce it as security: Presbyterian Corporation v. Wallace, 3 Rawle, 109; Berryhill v. Kirchner, 96 Pa. 489; Thomas’s App., 30 Pa. 378; Asay v. Hoover, 5 Pa. 21; Ackla v. Ackla, 6 Pa. 228 ; Huckenstein v. Love, 98 Pa. 518; Kennedy v. Quigg, 6 Pa. Superior Ct. 53 ; Blim v. Wilson, 5 Phila. 78; Parker v. Sulouff, 94 Pa. 527.

      An illegal consideration, or the failure of a lawful one, may constitute a defense to a mortgage : Saalfield v. Manrow, 165 Pa. 114.
    In the present case the affidavit of defense shows practically an extinguishment of this mortgage by merger: Bank v. Burns, 87 Pa. 491.

      Thos. Raeburn White, for appellee.
    The appellant, Wilmer, cannot defend, because he has nothing at stake: Wilson v. McCullough, 19 Pa. 77; Hartman v. Ogborn, 54 Pa. 120; Broomell v. Anderson, 8 Atlantic Repr. 764; Reap v. Battle, 155 Pa. 265; Hunsicker v. Richardson, 3 Pa. Dist. Rep. 178 ; Kennedy v. Quigg, 6 Pa. Superior Ct. 53.
    February 20, 1905:
   Opinion by

Mb. Justice Potter,

This case was a scire facias sur mortgage. The writ was issued against the defendant Samuel S. Wilmer as mortgagor and John P. Smith as the present owner. Wilmer filed affidavits of defense in which he alleged that prior to the execution of the mortgage the plaintiff had been the owner of the ground described therein ; that he had conveyed the same to the defendant Wilmer, who contracted to build upon it four houses with money to be furnished by the plaintiff, and then to convey back the title to the latter. As compensation for defendant’s services in the transaction plaintiff agreed to pay and satisfy certain specified mortgages and judgments then standing unsatisfied against him. For the purpose of securing to plaintiff the value of the ground, which was fixed at $1,400, and the sum of $500 in cash advanced by him, a bond and mortgage for $1,900, being the mortgage in suit, were given him by Wilmer. The agreement for the reconveyance and the satisfaction of the mortgages and judgments was in writing and was set forth in the affidavit of defense. After the houses were finished Wilmer furnished the plaintiff a complete release of liens and conveyed the title to one John P. Smith, plaintiff’s appointee. It was alleged that the plaintiff had failed to return Wilmer’s bond for $1,900, which accompanied the mortgage, and had not satisfied the judgments and mortgages covered and contemplated by the written agreement of the parties. The defendant Wilmer therefore averred that there was nothing due upon the mortgage and that it should have been satisfied by the plaintiff.

The defendant John P. Smith, also filed an affidavit of defense in which he disclaimed having any interest in the mortgaged premises and averred that the real and actual owner was the plaintiff, Francis Evans.

A rule was taken for judgment for want of a sufficient affidavit of defense and was made absolute “ subject to stipulations of plaintiff’s counsel filed.” These stipulations were contained in a proposed agreement signed by plaintiff’s counsel, which was filed of record, and provided that execution should not issue upon the judgment entered until the various mortgages and judgments mentioned in the affidavits of defense should have been satisfied; that the bond held by Evans against Wilmer accompanying the mortgage in suit and any other bonds accompanying the mortgages thereinbefore referred to should be delivered up to Wilmer, after the entry of the judgment ; that any further judgments or mortgages which might be discovered by a search of the records should also be satisfied, and that in the sheriff’s advertisement it should be plainly stated that the judgment in the case does not bind Wilmer personally.

The action of the court below in making absolute the rule for judgment is assigned as error. While it does not appear upon the record, yet it is averred in the paper-book of appellee that the plaintiff has complied with the stipulations and has surrendered the bond and satisfied all outstanding judgments and mortgages contemplated by the agreement. The defendant has therefore no longer airy just reason for complaint. All that he had any right to ask, was given to him, under the terms of the conditional judgment entered by the court below. The judgment does not bind the defendant personally, and the execution goes against the land alone, and further than that, under the order of court, the advertisement is required to state that the judgment does not bind Wilmer individually. An action of scire facias sur mortgage is purely a proceeding in rem: Wilson v. McCullough, 19 Pa. 77; Hartman v. Ogborn, 54 Pa. 120. It is also well settled that a mortgagor whose bond has been released and who has' no longer any interest in the land, as is the ease here, cannot be permitted to defend in an action on a scire facias. See the decisions of this court in Broomell v. Anderson, 6 Cent. Repr. 723 and Reap v. Battle, 155 Pa. 265.

As we read the agreement between the plaintiff and the defendant, it did not contemplate the satisfaction of the mortgage in suit. The satisfaction of mortgages and judgment to be made by plaintiff, was the compensation which was by him to be made to the defendant for his labor and skill bestowed in the building of the houses for the plaintiff. Had it not been that for some reason not apparent, the plaintiff desired to place the title to the property in the name of the defendant during the building operation, no mortgage would have been given. Had the reconveyance of the property been made to the plaintiff, the mortgage would of course have merged. But for some reason, which was presumably satisfactory to both parties, the defendant conveyed the premises to a third party, who would necessarily take subject to the mortgage. This third party, John P. Smith, who is the present owner, makes no claim of any right upon his part to have the mortgage satisfied, and he admits that no portion of the principal or interest has been paid. The transaction was evidently a short cut. Under the exact terms of the agreement, defendant would have conveyed to the plaintiff, and the mortgage would have been satisfied. Another deed would then have been required to place the title in the present owner of record, and another mortgage to secure the purchase money would have been re. quired. The course pursued, saved the necessity of preparing and recording one deed and one mortgage. If the defendant was not willing to allow his mortgage to remain upon the property to secure the new purchase money, he should have refused to make the deed to Smith, without stipulating for the satisfaction of the mortgage. Had he then made his objection, Smith’s mortgage could have been substituted. But to now order satisfaction of the mortgage in suit would be to destroy the security of the plaintiff for the purchase money presumably due him from Smith.

Under no aspect of this case does it appear that the appellant has suffered any injustice by the judgment of the court below. He had therefore no right to an appeal.

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


source: Caselaw Access Project

author: Mr. Justice Potter,

license: Public Domain

text:
    Miller v. Atlantic Refining Company, Appellant.

      Negligence—Animals—Death by kick of horse—Contributory negligence.

    A horse was left standing for two or three minutes in such a position that he was partly within and partly without a gateway leading from a sixteen feet wide sidewalk of a public street. He was standing in this position waiting his turn to be weighed, after another horse, on scales within the gateway. A person who was within the same inelosure as the scales, went around the scales with a full view of the position of the horse, passed out of the gateway, turned towards the horse and walked along the sidewaEt within four feet of the horse’s hind legs. When he came in line with the heels of the horse, it suddenly kicked and struck him in the side, so injuring him that he died shortly thereafter. The horse was not vicious and was in the keeping of a hostler. It did not appear that the deceased spoke either to the horse or to the hostler before passing.. Held (1), that the evidence was insufficient to convict the owner of the horse of negligence; (2) that deceased was guilty of contributory negligence.
    Argued Jan. 6, 1905.
    Appeal, No. 118, Jan. T, 1904, by-defendant, from judgment of C. P. No. 1, Phila. Co., June T., 1908, No. 1212, on verdict for plaintiff in case of William Miller, Jr., et al. v. Atlantic Refining Company.
    Before Dean, Fell, Bbown, Mestbezat, Potteb and Elkin, JJ.
    Reversed.
    Trespass to recover damages for death of plaintiff’s father. Before Beitleb, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict for plaintiff for $5,000, upon which judgment was entered for $2,000 all above that sum having been remitted.

      Error assigned was. in refusing binding instructions for defendant.

      Edward W. Magill, of Alexander $ Magill, with him Ruby R. Vale, for appellant.
    If animals are attended or rightfully in the place where they do the injury complained of, the owner is not' liable unless it be averred and proved that such owner had knowledge of the vicious propensity of such animal: Congress Spring Co. v. Edgar, 99 U. S. 645 ; Twigg v. Ryland, 62 Md. 380; Le Forest v. Tolman, 117 Mass, 109; Brooks v. Taylor, 65 Mich. 208 (31 N. W. Repr. 837) ; Evans v. McDermott, 49 N. J. L. 163 (6 Atl. Repr. 653); Smith v. Donohue, 49 N. J. L. 548 (10 Atl. Repr. 150).
    The courts uniformly hold that if a person with knowledge of the evil propensity of the animal, voluntarily and unnecessarily exposes himself to an injury, or puts himself in the way of such animal, he will be adjudged to have brought the injury upon himself and be subsequently barred from recovering damages because of his contributory negligence: Hallyburton v. Burke County Fair Assn., 119 N. C. 526 (26 S. E. Repr. 114) ; Abbott v. Freeman, 35 Law Times, N. S. 783 ; Koney v. Ward, 36 Howard’s Pr. N. Y. 255; Muller v. McKesson, 73 N. Y. 195; Logue v. Link, 4 E. D. Smith, 63; Farley v. Picard, 78 Hun, 560 (29 N. Y. Supp. 802); Coggswell v. Baldwin, 15 Vt. 404; Koney v. Ward, 36 Howard’s Practice, 255 ; Wheeler v. Brant. 23 Barb. 324; Blackman v. Simmons, 3 Car. & P. 138; Brock v. Copeland, 1 Esp. 203.

      TIector T. Fenton, with him Joseph W. Shannon, for appellees,
    cited: McCloskey v. Chautauqua Lake Ice Co., 174 Pa. 34; Goodman v. Gay, 15 Pa. 188; Henry v. Klopfer, 147 Pa. 178.
    February 20, 1905:
   Opinion by

Mr. Justice Potter,

The defendant company, acting by its servant, permitted a horse to partially obstruct the sidewalk for a few moments, by standing upon a driveway leading across the pavement into the yard of the Vulcanite Paving Company. The occasion for stopping the horse at that point was the fact that another horse just ahead was being weighed upon a pair of scales just inside the gateway, and the second horse was waiting to be led also upon the scales. While the horse was thus standing, partly within and partly without the gateway, William Miller passed from the office of the Vulcanite Paving Company around the scales and out to the street. Both of the horses were at that time within his plain view. There were two gateways, in one of which the horse was standing, and through the other Mr. Miller passed. Immediately upon reaching the sidewalk he turned northward and passed in the rear of the horse standing in the other gateway. It seems that he neither spoke to the horse nor the hostler before passing, and when he came in line with the heels of the horse, it suddenly kicked and struck Mr. Miller in the right side, injuring him to such an extent that he died within a few days. There was no testimony to show that the horse was vicious or that it had been known to kick before. It was at the time in the care of an attendant who was holding it by the halter strap. We do not think that it can properly be said that the horse was wrongfully in the space where it was at the time of the accident. The public right of passage along the sidewalk is always prior and is to be respected by those making other use of the pavement. But this does not preclude a temporary obstruction by those crossing transversely, as upon a driveway, or who are reasonably occupying the space for a short time. The evidence in this case showed no permanent or unreasonable obstruction of the sidewalk, in the temporary stoppage of the horse at that point.

Under the facts as shown, it is not apparent that any inference of negligence upon the part of the defendant could have reasonably been drawn bjr the jury. But even if there was any question as to this, we are unable to regard the action of William Miller in walking deliberately past the heels of the horse and within reach of them, without giving any warning or-speaking to the horse, as being anything other than negligence which contributed to the happening of the accident. It was evident, as one of the witnesses said, that Mr. Miller did not anticipate that the horse would kick, and he passed within four, feet of him, when he might as easily have kept himself at least five or six feet further from danger. The testimony indicates that the horse was allowed to stand in the gateway only long enough to permit of the other horse being weighed, a period of two or three minutes, so that if Mr. Miller had waited for the horse to be moved, the delay would not have been serious. But if he were desirous to proceed at once, the sidewalk seems to have been some sixteen feet in width, so that he could have passed' in safety by going nearer the curb, or even stepping out into the street, as one of the witnesses testified would have been, under the circumstances, the part of prudence.

The trial judge asked the jury to say whether William Miller “ did a prudent thing in passing—without speaking to the horse or without speaking to the man in charge of him, without taking any precaution for his own sake—within striking distance of the heels of that horse when he had to the westward of him sufficient space on the sidewalk to have rendered it impossible for the horse to have reached him.” The testimony which established this action upon the part of Mr. Miller is undisputed, and to us it so clearly shows contributory negligence that we think the trial judge should have assumed the entire responsibility and have given binding instructions in favor of the defendant.

The second assignment of error, which is to the refusal of such instructions, is therefore sustained and the judgment is reversed and is here entered for the defendant.


author: Mb. Justice Elkin,

text:
    Pollack v. Pennsylvania Railroad Company, Appellant
    (No. 1).

      Negligence—Railroads—Trespassers—Infants—Frightening child—Question for fury.

    In an action by a boy nine years old against a railroad company to recover damages for personal injuries, the case is for the jury where the evidence tends to show that the plaintiff was a trespasser on a moving freight car, that the car was moving at such a rate of speed as to make it dangerous for him to attempt to get off, that while plaintiff was clinging to the brake wheel two brakemen caused the boy to jump or fall from the ear by threatening motions, loud calls, and the flourishing of a switch club, and as a result the boy was injured.
    In such a case the defendant cannot be held liable, unless it clearly appears from the testimony, that the employees in causing the child to jump or fall from the moving car, have failed to exercise the reasonable and ordinary care which the instincts of humanity and rules of law require in dealing with a child of tender years.
    Argued Jan. 13, 1905.
    Appeal, No. 208, Jan. T., 1904, by defendant, from judgment of C. P. No. 5, Philadepliia Co., June T., 1903, No. 2505, on verdict for plaintiff in case of Stephen Pollack v. Pennsylvania Railroad Company.
    Before Mitchell, C. J.,Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Davis, J.

      The facts appear by the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $4,250. Defendant appealed.

      ■Error assigned was in refusing binding instructions for defendant.

      John Hampton Barnes, for appellant.

      George- Bemmiing, for appellee.
    February 20, 1905 :
   Opinion by

Mb. Justice Elkin,

Joseph Pollack, the plaintiff, a minor, nine years of age, was seriously injured by slipping or falling from a box car in a freight train belonging to defendant company, under the following circumstances:

The defendant has its tracks laid on Delaware avenue in the city of Philadelphia. On the evening of June 27, 1908, a number of box freight cars were standing upon defendant’s tracks on said avenue. Joseph Pollack, with four other boys, on the afternoon of that day climbed on the top of these cars and was playing on and about them. Just a few moments before .the injury to the plaintiff occurred the employees of the defendant company were engaged in coupling the cars, making them up into a freight train. An engine of the defendant moved back toward these cars for the purpose of being connected therewith and hauling the train a short distance away. All of the boys except Joseph saw the engine moving toward the cars and got off without being injured. Joseph did not see the engine until it was coupled to the cars and the' train had commenced to move away. The boy at this time, being on top of one of the box cars, in order to protect himself was holding fast to the brake wheel or beam at the end of the car, waiting, as he testified, for the train to stop so that he could get off in safety. A brakeman who was standing on the ground at the side of the-train while it was moving saw the boy and called aloud twice, saying, “ Get out of there.” At about the same time another brakeman on top of the moving cars, walking toward the- place ■ where the boy was clinging to. the brake wheel, called aloud, “ Get off there.” According to the testimony of the plaintiff the brakeman on top of the car had a “ switch club ” in his hand, “ and wanted to fire it at me.” The boy then became frightened, and in attempting to climb down the steps of the ladder at the end of the car, slipped and fell on the track, was run over by the train and suffered severe injuries for which he seeks to recover damages in this action.

Although the boy was a trespasser, and might have been ejected from the train in a manner which would not endanger his life or injure his body, yet the principle announced in Enright v. Railroad Co., 198 Pa. 166, rules this case, and justified the court below in submitting the question to the jury to determine whether under all the circumstances the defendant was guilty of negligence. In that case it was held that a child of tender years, who while trespassing on a freight train, is frightened by the shouts and threatening action of a brakeman while in the discharge of his duties, so that he jumps from the train while it is in rapid motion, and is injured, may recover damages from the railroad company for the injuries sustained.

In the case at bar, the child being of tender years, and in a perilous position, it was the duty of the brakemen to use the care that reasonable and prudent persons would exercise under the circumstances in attempting to cause him to alight from the moving train. The boy was not injured by reason of the dangerous position in which he had placed himself on top of the cars, but because of the negligent act of the brakemen in causing him to get off while the train was in motion. If the brakemen had not frightened the boy by their calls of “ get off, ” and by raising the “ switch club ” in a threatening manner, the boy would have remained in safety clinging to the brake wheel until the train stopped but a short distance away, when he could have gotten off the cars without injury. We do not agree with the learned counsel for the appellant that this case can be distinguished in principle from Enright v. Railroad Co., supra. This case is on all fours with that one, except the train was moving at a less rate of speed. The train, however, was moving at such rate of speed as to make it dangerous for the boy to attempt to get off. This is evidenced by the fact that when he did make the attempt, after being frightened by the brakemen, he was run over by the train and received the injuries about which he complains. It is true the boy was a trespasser, and tbe defendant cannot be charged with any responsibility for accidents which might ordinarily occur to him, nor was it bound to insure his safety in the dangerous position in which he had placed himself. The defendant cannot be held liable in damages in the case at bar unless it clearly appears that its employees, the two brakemen, in causing the boy to jump or fall from the moving car by threatening manner, loud calls and the flourishing of a switch club, have failed to exercise that prudence and ordinary care which the instincts of humanity and rules of law require in dealing with a child of tender years.

The learned trial judge submitted the facts to the jury to determine whether the boy did fall or jump from a moving train because of the action or threatening manner and loud calls of the brakemen. Under the authority of our cases there was no error, in so doing.

Assignments of error overruled and judgment affirmed.


author: Mr. Justice Elkin,

text:
    Pollack, Appellant, v. Pennsylvania Railroad Company
    (No. 2).

      Negligence—Railroads—Parent and child—Contributory negligence of parent.

    Where a father takes his son, nine years old, to a locality where freight cars are being shifted, and there leaves him unattended and unprotected, and the boy is injured while trespassing on the cars, the father is guilty of such contributory negligence as will preclude him from recovering for loss of services of the child, and the expenses attendant on the injury.
    Argued Jan. 13, 1905.
    Appeal, No. 237, Jan. T., 1904 by plaintiff, from judgment of C. P. No. 5, Philadelphia Co., June T., 1903, No. 2505, on verdict for defendant in case of Stephen Pollack v. Pennsylvania Railroad Company.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass by a father to recover damages for injuries to child of tender age. Before Davis, J.
    The facts appear by the opinion of the Supreme Court, and by the report of Pollack v. Pennsylvania Railroad (No. 1) supra.

      Error assigned was in giving binding instructions for defendant.

      George .Demming, for appellant,
    cited: Enright v. R. R. Co., 204 Pa. 543; Philadelphia & R. R. Co. v. Long., 75 Pa. 257; Del Rossi v. Cooney, 208 Pa. 233.

      John Hampton Barnes, for appellee,
    cited : Glassey v. Hestonville, etc., Pass. Ry. Co., 57 Pa. 172; Cauley v. Pittsburg, etc., Ry. Co., 95 Pa. 398.
    February 20, 1905:
   Opinión by

Mr. Justice Elkin,

The appellant in this case is the father of a nine year old boy who sustained injuries as stated in the case just heard and decided at No. 208, January Term, 1904. The court below instructed the jury that under the evidence in the case, the father had by his negligent act precluded himself from the recovery of damages, and directed the jury to return a verdict in favor of the defendant. The trial judge in the charge to the jury, inter alia, said: “ The father on this occasion took this boy from his house after supper around to the very locality in which this dangerous spot was, and the law says that a parent who permits a child of tender years to run at large without a protector in a city traversed constantly by cars and other vehicles, fails in the performance of his duty, and is guilty of such negligence as precludes him from recovery for the injury resulting therefrom, so that whilst you must have testimony to justify it you may find a verdict for the boy; the father, by taking the boy to the dangerous place and leaving him there unprotected, precluded himself from the recovery of any damages, and as to the father I charge you that your verdict must be for the defendant.” We see no error in this statement of fact and law. The father was guilty of such contributory negligence as to bring the case within the rule stated in Glassey v. Hestonville, etc., Railway Co., 57 Pa. 172, wherein Mr. Justice Strong said: ‘‘ A father has no right to expose his child to such dangers, and if he does he fails in performance of his duty and is guilty of negligence. The security of the community, and especially o£ children, demands the assertion of this doctrine.” This rule has been frequently recognized in other cases, and certainly applies to the one at bar.

Assignment of error overruled and judgment affirmed.


text:
    Clark v. Union Traction Company, Appellant.

      Negligence—Street railways—Evidence—Memoranda in writing—Conductor’s report.

    On the trial of an action for personal injuries against a street railway company, a conductor who took down in writing the names, addresses and occupations of passengers who were on the car and saw the accident, may in giving his testimony refresh his memory by referring to such memoranda; and there is all the more reason for permitting'him to do so, where it appears that over two years and a half had elapsed from the date of the accident to .the time of the trial.

      Negligence—Street railways—Evidence—Charge of court—Interested testimony.

    Where in a street railway accident case the unsupported testimony of the plaintiff is directly contradicted by three disinterested persons, a.nd also by the conductor and motorman of the car, a charge is inadequate which does not carefully explain to the jury the difference between interested and disinterested testimony, and caution them as to their duty in weighing and deciding upon such a conflict of testimony.
    In such a case where the plaintiff claims that the diseases from which she was suffering were due to the accident, but one of her own experts concedes that her troubles might have had their origin in other causes, the court should call the attention of the jury to the different probable causes for the diseases with which plaintiff was suffering.
    Argued Jan. 17, 1905.
    Appeal, No. 70, Jan. T., 1904, by defendant, from judgment of C. P. No. 5, Philadelphia Co., Dec. T., 1901, No. 582, on verdict for plaintiff in case of Catharine Clark, child, and James E. Clark, parent, v. Union Traction Company.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Elkin. JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Martin, P. J.
    The circumstances of the accident are described in the opinion of the Supreme Court.
    At the trial the court declined to permit defendant’s conductor to refresh his memory as to the names and addresses of witnesses to the accident by looking at a report written by him at the time. Exception. [1]
    The court also declined to permit a passenger, a witness for defendant, to refresh his memory by referring to a statement signed by himself shortly after the accident, for the purpose of refreshing his memory after he had been cross-examined with a view to showing that he was not present at the time of the occurrence. Exception. [2]
    The court charged in part as follows : [There seems to be no dispute as to the character of the disorder from which this young woman is suffering. It is the opinion of the physicians that the injury was the cause of her present condition. She is said to have been in good health prior to her injury. • It is for you to say whether the accident occasioned her condition. The testimony of Catharine Clark, her sister Mary, her sister Susan, Dr. Stoller and Dr. Porter would indicate that the injury had brought about the present physical condition.] [3]
    Verdict and judgment for plaintiff, Catharine Clark, $3,500, and James D. Clark, $500. Defendant appealed.

      Errors assigned were (1, 2) rulings ou evidence, quoting the bill of exceptions; (3) portion of charge as above, quoting it; (4) the charge was inadequate.

      Thomas Learning, with him Charles Biddle, for appellant.
    The learned court erred in declining to permit defendant’s conductor, Werner, to refresh his memory as to the names and addresses of witnesses to the accident, by looking at a report written by him at the time: Babb v. Clemson, 12 S. & R. 328; Mead v. White, 8 Atl. Repr. 913 ; Dodge v. Bache, 57 Pa. 421; Huckenstein v. Jolly, 2 Lanc. L. R. 164; First National Bank of DuBois City v. First Nat. Bank of Williamsport, 114 Pa. 1. The charge was inadequate: Cooley v. Phila. Traction Co., 189 Pa. 563; Richards v. Willard, 176 Pa. 181; Reber v. Herring, 115 Pa. 599; Holden v. Penna. R. R. Co., 169 Pa. 1.

      Thomas Ridgway, ivith him John J. Ridgivay, for appellees.
    Harmless error committed by a trial court is not subject of reversal: Ely v. Hager, 3 Pa. 154; Walthour v. Spangler, 31 Pa. 523; Ormsby v. Ihmsen, 34 Pa. 462; Hill v. Meyers, 43 Pa. 170; Galbraith v. Zimmerman, 100 Pa. 374; Ziegler v. Handrick, 106 Pa. 87 ; Coates v. Wallace, 4 Pa. Superior Ct. 253 ; Kennedy v. Forest Oil Co., 199 Pa. 644; Sutch’s Est., 201 Pa. 305; Fitzpatrick v. Union Traction Co., 206 Pa. 335; McKnight v. Newell, 207 Pa. 562.
    The charge was adequate: Krepps v. Carlisle, 157 Pa. 358 ; Newhard v. Yundt, 132 Pa. 324; Fitzpatrick v. Traction Co., 206 Pa. 335 ; Price v. Hamsher, 174 Pa. 73 ; Holden v. Penna. R. R. Co., 169 Pa. 1.
    February 20, 1905 :
   Opinion by

Mb. Justice Elkin,

This is an action of trespass to recover damages for an injury alleged to have been caused by the negligent act of the defendant to tlie plaintiff, Catherine Clark, and also for the loss of services and expenses incurred by James E. Clark, the father.

The plaintiff, a young girl eighteen years of age, testified that she was a passenger on a trolley car on Lehigh avenue on the evening of May 1, 1901, and, in attempting to step off the car after it had stopped, was thrown on her hands and knees on the street by reason of the car starting before she got off, and that she suffered a nervous shock which later developed into womb and ovarian troubles, from which she was suffering at the time of the trial. Her testimony, in so far as it related to the time and manner of getting off the trolley car, was positively contradicted by the conductor, motorman and by three passengers, disinterested persons, who were standing on the back platform of the car at the time the injury is alleged to have been sustained. The testimony of these five witnesses is to the effect that the plaintiff, in making an effort to catch a Fifteenth street car, hurriedly stepped from the Lehigh avenue car before it Stopped, fell upon her hands and knees in the street and suffered some injuries. According to her testimony, she thereupon proceeded on her journey, took a Fifteenth street car, visited a friend whom she had started out to see and returned to her home a few hours later. Upon arriving at home it was discovered that her ankle, knee and elbow were bruised, and she was suffering some pain. A physician, called next day to treat her, found her suffering from the nervous shook, the external bruises and some other pain. Several months later this physician made an internal examination of plaintiff, and found that her womb was displaced and the ovaries affected. About one year after the accident, another physician, an expert, was called to examine her, and found that she was then suffering from a retroversion of the womb and prolapses of the left ovary. Although these are troubles common to females, the plaintiff claims that her condition is the result of the accident caused by getting off the trolley car, and that defendant is liable in damages by reason of the alleged negligence. The case was submitted to the jury in the court below, which found in favor of the plaintiff.

The learned counsel for defendant took an appeal, and has specified four assignments of error. These four assignments can be discussed under two heads : first, whether the learned trial judge erred in refusing to allow certain witnesses to refresh their memory by referring to memoranda made in writing at or near the time the accident occurred, and, second, whether the charge of the court to the jury was accurate in assuming certain facts to have been admitted or proven, and adequate under the circumstances of the case.

At the time of the accident, the conductor, Werner, made a report in writing, containing the names, addresses and occupations of the passengers who were standing on the back platform of the car and saw plaintiff get off. This report also contained the name and address of the plaintiff. The learned trial judge refused to permit the conductor while testifying to refresh his memory from this written report. There can be no doubt under our authorities that the witness should have been allowed to refresh his memory from the report so made, and that the court erred in refusing to permit him so to do. The rule is well stated in Greenleaf on Evidence, sec. 456: “ Though a witness can testify only to such facts as are within his own knowledge and recollection, yet he is permitted to refresh and assist his memory by the use of a written instrument, memorandum, or entry in a book, is and may bo compelled to do so, if the writing is present in court.” This rule is so clearly settled in our cases that it is not now open to doubt: Babb v. Clemson, 12 S. & R. 328; Dodge v. Bache, 57 Pa. 421; First National Bank of Dubois City v. First National Bank of Williamsport, 114 Pa. 1.

The learned counsel for appellees concede that the witness should have been allowed to refresh his memory from the memorandum or report, but insist that no injury was done appellant by such refusal, and therefore it is not reversible error. The case of Ziegler v. Handrick, 106 Pa. 87, is cited in support of this contention. To the same effect is Kennedy v. Forest Oil Co., 199 Pa. 644. The rule is properly stated in these and many other cases cited. In all the cases, however, the principle is recognized that where the court has erred in the admission or exclusion of testimony at the trial, it is reversible error if the complaining party has been injured by the erroneous rulings of the court. In the case at bar it was important for the defendant to show that these witnesses were all present and did see or could have seen the circumstances immediately connected with the accident. How could this better be done than by permitting the conductor to refresh his memory from a written report made at the time, when the names, addresses and occupations of the witnesses, and other circumstances connected with the accident, were written down? The accident occurred May 1, 1901, and the verdict was rendered January 11, 1904. Moré than two years and a half having elapsed from the date of the accident to the time of trial, it was important that the conductor should refer to his report in order to definitely fix the time when the accident occurred, the names of the witnesses who saw it, and other circumstances connected with the accident. This testimony was especially important in view of the fact that the learned counsel for appellees in the cross-examination of some of these witnesses at the trial attempted to weaken the force of their statement, by suggesting that the circumstances to which they referred, and the young lady about whom they were testifyng, might have occurred at some other time and to some other person. In this view of the case reference to the memoranda or report was the strongest and best corroboration of its witnesses the defendant could offer. These were material facts, which, in connection with all the other evidence, the jury should have been permitted to consider in its effort to arrive at a proper verdict. We cannot say that the refusal to permit the witness to so refresh his memory did not injure the defendant. We think this testimony was material, and that it was error to refuse it.

The appellant further contends that the charge of the trial judge was inadequate, and did not give that full and clear statement of the law and evidence which should precede intelligent consideration and correct conclusion by the jury. A careful examination of the evidence in the case and of the charge of the court leads us to the conclusion that there was error in this respect. The learned court did not explain to the jury the difference between interested and disinterested testimony, which was material and important in view of the unsupported testimony of the plaintiff as to the car having stopped before she got off. This was the vital point of the plaintiff’s case, and she stood alone. She testified that the car had stopped before she got off. No one corroborated her, although five other persons stood within a few feet, saw her get off, and all positively contradict her statement. These witnesses stated that the plaintiff attempted to get off before the car stopped. Two of these witnesses were employees of the defendant company, but three of them were in no way connected with the defendant. They were passengers and disinterested persons. They were only interested in describing the facts as they saw them. On the other hand, the plaintiff was vitally and pecuniarily interested. Her whole case depended upon her saying the car had stopped before she got off, and she alone said it. Certainly these facts bring the case within the rule laid down in Holden v. Pennsylvania Railroad Co., 169 Pa. 1, wherein Mr. Justice Gkeen said: “As the review of the evidence shows, he stood entirely alone, not a solitary witness corroborated him in the least degree in this vital feature of his case, and of this fact he, being the plaintiff, was necessarily aware. We think the learned court below, in these circumstances, should have carefully explained to the jury the difference between interested and disinterested testimony, and should have specially cautioned them as to their- duty in weighing and deciding upon a conflict of testimony in such a case. Nothing of this kind was done and we think the charge was not adequate in that regard.”

Again, the appellant contends that the learned court erred in assuming that there was no dispute about the cause of the diseases from which plaintiff was suffering, and failed to call the attention of the jury to the fact that her troubles might have resulted from many other probable causes. In this connection it should be borne in mind that more than two and one half years had intervened between date of accident and time of trial. The plaintiff was suffering from diseases very common to her sex. These diseases may have been occasioned by injuries received in getting off the trolley car, or may have resulted from many other causes. It is true that two physicians, called as witnesses on behalf of plaintiff, gave it as their opinion that these troubles were occasioned by the fall on the street at the time of the accident. One of these witnesses, an expert, however, conceded that her troubles might have been caused by standing on her feet during long hours, by taking a sudden, unguarded, long breath, by slipping on the ice, or by jarring that portion of the abdomen in any other way. Under these circumstances, the attention of the jury should have been called to the different probable causes for the diseases from which the plaintiff was suffering : Reber v. Herring, 115 Pa. 599. All of these facts should have been explained so that the jury would have a full and clear statement of the law and evidence to guide them in their deliberations: Richards v. Willard, 176 Pa. 181. The charge as a whole was fair and impartial, but in our view of the case sufficient stress was not laid on the material and important matters herein before discussed. In these respects we think the learned court erred.

Judgment reversed and a venire de novo awarded.


author: Mb. Justice Potter,

text:
    Gallagher v. Snellenburg, Appellant.

      Negligence—Elevators—Master and servant—Evidence—Contributory negligence—Instructions,

    The duty of instruction due by a master to a servant does not require warning against such dangers as are the subject of common knowledge, or are open and apparent to ordinary observation.
    In an action by a workman against his employers to recover damages for personal injuries sustained by a fall down an elevator shaft in a large department store, it appeared that the plaintiff at the time of the accident was engaged in taking water in buckets to the upper floors. In doing his work he used a truck, loading it with buckets and pushing it on to the elevator. At the floor where the water was needed he pushed the truck off the elevator to the point desired. On a return trip to the elevator he pushed the truck through the open door without apparently looking ahead. The elevator was not there, and the truck and plaintiff fell down the shaft. The elevator was not intended for the use merely of the plaintiff, but was for the use of any of the employees who might need it, and it could be put in motion by reaching into the shaft from any of the floors and pulling a wire rope. It did not appear from the evidence how the elevator had been moved. It was shown, however, to have been in good condition immediately after the accident. There were electric lights in the elevator shaft and others in the vicinity. Plaintiff had been working for about four w'eoks in carrying water, and had never complained of any lack of light. Plaintiff claimed that the defendants were negligent in failing to instruct him properly as to the use of the elevator. Held, that it was error to submit the case to the jury, and that a judgment on a verdict for the plaintiff should be reversed without a venire.
    Argued Jan. IB, 1905.
    Appeal, No. 322, Jan. T., 1904, by defendants, from judgment of C. P. No. 2, Phila. Co., Dee. T., 1901, No. 1047, on verdict for plaintiff in case of John Gallagher v. N. Snellenburg & Co.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Bareatt, J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $12,500. Defendants appealed.

      Error assigned was in refusing binding instructions for defendants.

      Thomas Teaming, with him Alex. Simpson, Jr., for appellants.
    There was no evidence to support the allegation that the elevator shaft or the elevator itself were improperly constructed or in bad order: Delaware River Iron Ship-Building Co. v. Nuttall, 119 Pa. 149; Titus v. Bradford, etc., R. R. Co., 136 Pa. 618 ; Cunningham v. Fort Pitt Bridge Works, 197 Pa. 625 ; Kilbride v. Carbon Dioxide, etc., Co., 201 Pa. 552.
    There was no evidence to support the allegation of insufficient light: Devlin v. Phœnix Iron Co., 182 Pa. 109 ; Prescott v. Ball Engine Co., 176 Pa. 469.
    The plaintiff was guilty of contributory negligence: Bemisch v. Roberts, 143 Pa. 1; Stackhouse v. Vendig, 166 Pa. 582; Ingram v. Lehigh Coal, etc., Co., 148 Pa. 177.
    The error in refusing binding instructions was emphasized by submitting the case to the jury upon a theory of negligence which had not been alleged and which the court told the jury had not been proved: Cunningham v. Fort Pitt Bridge Works, 197 Pa. 625.

      Henry J. Scott, with him James W. King, for appellee,
    cited: Laib v. Penna. R. R. Co., 180 Pa. 503; Bard v. P. & R. Ry. Co., 199 Pa. 94.
    February 20, 1905:
   Opinion by

Mb. Justice Potter,

The plaintiff in this case seeks to recover damages for personal injuries caused by falling down an elevator shaft. He was employed by the defendants as a laborer, and among other duties assigned him was that of taking hot Avater in buckets up to the scrub women who were engaged on the various floors of the building in cleaning the premises at night. The method which he pursued, under instructions, was to load a truck in the basement Avith buckets of hot water, push the truck on an elevator, and then by means of a controlling rope start the elevator upward, stop it at any desired floor, and push the truck out through the elevator door, upon the floor, and to the point where the women were at work. The empty buckets were in turn placed upon the truck and wheeled back to and upon the elevator, and thus lowered to the basement.

At the time of the accident the plaintiff had been engaged in conveying water and in the other duties for Avhich he was employed by the defendants, during a period of nearly four weeks. His hours of service were from half past six o’clock at night until six o’clock in the morning. The story of the accident which resulted so disastrously is thus told by him in his own words: “On the 2d of January 1900, between three o’clock and four o’clock in the morning, I was taking up this truck. I stopped at the second floor and pushed my truck off as usual, went to where they (the women) were, about 100 feet from the elevator, perhaps more, and unloaded the truck, came back again, and put some more buckets on and came back to the elevator again, and I pushed it right to the elevator. The elevator looked to me like as it was when I loft it. I pushed the truck along and went right in, and that is all I know. The elevator wasn’t there.”

The negligence charged in the declaration is, in the first place, that the defendants did not furnish sufficient light for the plaintiff to see in the performance of his work. It does not appear, however, from the evidence that plaintiff made any complaint as to lack of light or even that he felt himself in any way incommoded thereby. At the time he was hurt he had been at the service for nearly four weeks, and neither during that period nor upon the night when the accident occurred does he say that he had not sufficient light to enable him to do his work properly or in safety. The testimony shows that an arc electric light burned about seventy-five feet from the elevator, although partially interrupted by a glass partition. There were also incandescent electric lights in the elevator shaft, and one witness at least, says that these would show where the elevator was if one looked into the shaft. One of the night watchmen, in testifying as to the regulations concerning the lights, said that the employees when engaged in cleaning the premises had the privilege of using whatever lights were needed to enable them to see to do the work. The plaintiff does not testify that he suffered any inconvenience in doing his work owing to any lack of light, nor does he say that by reason of the darkness he was unable to see whether the elevator was in place before he pushed his truck in and stepped after it down the shaft.

Defendants wore also charged in the statement with furnishing an unsafe, insecure and improper elevator; but the proofs did not sustain the charge either of providing insufficient light, or an unsafe elevator; and the trial judge so instructed the jury. The inspector of elevators, who examined the elevator after the accident, said that he found it in good shape in so far as the driving power and the controlling gear were concerned, and that it was equipped as the law required freight elevators to be, with the exception of an automatic terminal stop. This latter device, however, only came into play at the top and bottom landings and therefore had- nothing whatever to do with the accident. The elevator did not fall with the plaintiff, there was no break in the machinery, nor was anything shown to be out of order. The elevator was used immediately after the accident by one of the watchmen, and appears to have remained in use without any necessity for repair. In fact, the hurt which the plaintiff received was not owing in any sense to the use of the elevator. It was its absence when he desired and intended to use it, which led to his misfortune. He was injured by falling down the elevator shaft, into which he had deliberately walked under the supposition that the elevator was still at the landing, where he had left it a few moments before. But how could he have made such a disastrous mistake, when a reasonable use of his eyes must have shown him that the elevator was not there to receive him when he stepped from the solid floor ? He was pushing the truck containing the buckéts, ahead of him, and it seems almost incredible that the fall of the truck which preceded him into the shaft, should not have warned him in time to stay his steps upon the solid floor, had he been giving heed to what he was doing.

It appears from the evidence that the elevator was not intended for the use merely of the plaintiff, but was for the use of any of the employees who might need-it, and that it could be put in motion by reaching into the shaft from any one of the six floors, and pulling a wire rope. The watchmen used it at intervals, but whether or not it was moved by one of them after the plaintiff left it, does not appear from the testimony. But no matter by whom the elevator may have been moved, nothing could excuse the plaintiff from using his senses to guard himself from walking into an open shaft.

The trial judge refused binding instructions in favor of the defendants, and submitted the case to the jury upon the one thing which, under the evidence, he said was open for their consideration. In so doing he said to the jury : “ Now, did the defendant company properly instruct the plaintiff in the use of this elevator, so that he knew the danger of it ? If they did, I instruct you that there is nothing else for you to consider,, even if you have found that the plaintiff was not guilty of contributory negligence, and your verdict will have to be for the defendants.” There was no occasion for suggesting to the jury any such line of inquiry, for neither in his declaration did the plaintiff charge, nor in his testimony did he prove, any negligence against the defendants in failing to properly instruct him as to the use of the elevator. As a matter of fact, what could have been said to the plaintiff by way of warning against the possibility of such an accident as this ? Nothing more than to remind him that in case ho left the elevator unoccupied at a landing, some other employee, who had an equal right to its use, might move it away in his absence; or that it might possibly move of itself; and that he, therefore, upon his return, must, before stepping into the shaft, be sure to look to see if the elevator was there. But such á danger as that of stepping into an open shaft would be so obvious as to require no warning to any reasonably prudent man. As we said in Cracraft v. Bessemer Limestone Co., 210 Pa. 15, “ Generally speaking, the duty of an employer to give information to an employee, as to the particular perils and dangers of the service in which he is engaged, is unquestioned. But this duty does not require warning against such dangers as are the subject of common knowledge, or are open and apparent to ordinary observation.”

It would be hard to imagine a case in which negligence could be more conspicuous than was that of the plaintiff in the present case. The elevator cage was an object of considerable size, with floor, top and sides, all sufficient to give ample notice of its presence, and to be readily missed if absent. There was no hidden or latent danger, for a glance would have shown the plaintiff the absence of the cage, had he looked for it, when approaching the elevator shaft upon his return with the truck.

To permit a recovery upon the theory that the plaintiff was not properly instructed in the use of the elevator, which was the only ground upon which this ease was submitted to the jury, by the trial judge, would be to base it upon a theory, which was neither pleaded by the plaintiff nor proved. It is very much to be regretted that the results of accidents such as this should fall with such crushing force upon those ill able to sustain such a burden. But the law does not hold employers responsible as insurers against accident, and nothing short of that would enable the plaintiff to recover under the evidence in this case. The assignment of error is sustained and the judgment is reversed.


text:
    Redington v. Harrisburg Traction Company, Appellant.

      Negligence—Street railways—Passenger—Getting on car—Starling car— Duty of conductor.

    On a single-track street railway it is the duty of a conductor before giving the signal to start the car, to look on both sides of the rear platform to see if passengers are about to enter the car. If he fails to do so, and a passenger is injured by a premature start of the car, the company 'will be liable.
    In an action of trespass against a street railway company to recover damages for personal injuries received by a woman while attempting to enter a car, it appeared that the car had stopped at a street crossing to allow another passenger, who had signaled from the upper side of the street, to get on. After she was safely on, the car was started in the usual manner. The railway was a single track, and the rear .platform of the car was open to receive passengers from both sides. The plaintiff and her sister were upon the other side, waiting to enter. They did not signal for the car to stop, but it did stop for the passenger upon the opposite side of the car, and the plaintiff assumed that she could enter from the side upon which she was standing, and while in the act of mounting the steps the car was started and she was thrown to the ground. Held, that the case was for the jury, and that a judgment on a verdict for plaintiff should be sustained.
    Argued. Jan. 19, 1905.
    Appeal, No. 2, May T., 1904, by defendant; from judgment of C.' P. Dauphin Co., June T., 1903, No. 481, on verdict for plaintiff in case of Susan Redington v. Harrisburg Traction Company.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Kunkel, J.
    The facts are stated in the opinion of the Supreme Court.
    Defendant presented the following points :
    2. It is an undisputed fact in this case that the car of the defendant which the plaintiff attempted to board had been stopped for the purpose of receiving a passenger on the other side of the street, and that neither the plaintiff nor her sister, who was with her, had signaled for the car to stop. As there is no evidence that either the motorman or conductor of the car had seen the plaintiff or her sister, or had any knowledge of their intention to board the car, it was not negligence to start the car in the usual way after the passenger for whom it had stopped had been received. The verdict must, therefore, be for the defendant. Answer: This point is refused. [1 ]
    3. It is undisputed that the plaintiff gave no signal of her intention to board the defendant’s ear, and that it was stopped for a passenger on the other side of the street, and that neither the conductor nor the motorman had any knowledge of her intention to become a passenger. Itwas therefore no negligence to start the car after the passenger for whom it had been stopped had been received, and the verdict must therefore be for the defendant. Answer: This assumes that no signal was given by the plaintiff; we think that it is for the jury to determine whether standing where the plaintiff said she stood was a signal or not. [2]
    4. There is no evidence in this case of negligence on the part of the defendant or its employees, and, therefore, the verdict must be for the defendant. Answer: Refused. [3]
    5. In view of the plaintiff’s testimony that she had given no signal to stop the car, and that it had stopped for a passenger on the opposite side of the street, and the undisputed testimony that neither the conductor nor the motorman had any knowledge of her intention to become a passenger, it was not negligence for the motorman and conductor in charge of the car to start it as they did, and the verdict must be for the defendant. Answer: Refused. [4]
    6. Upon the plaintiff’s own testimony, and all the testimony in the case, there is no evidence of negligence, and the verdict must be for the defendant. Answer : Refused. [5]
    7. The mere standing on a corner or even in the street, without anything further, is not sufficient to notify the conductor of a street car that the person or persons so standing are intending to become passengers. Answer ; This is refused. We think the place where and the circumstances surrounding the standing must determine that question. [6]
    Verdict and judgment for plaintiff, for $2,000. Defendant appealed.

      Errors assigned were (1-6) above instructions, quoting them.

      Charles L. Bailey, Jr., with him Le Roy J. Wolfe, for appellant.
    This case is ruled by Pitcher v. People’s Street Ry. Co., 154 Pa. 560.

      W. M. Hargest of Hargest and Hargest, for appellee.
    Standing on a street crossing, where it is customary to board cars, in close proximity to the track, is of itself a sufficient signal to the car to stop: McCurdy v. Traction Co., 15 Pa. Superior Ct. 29 ; Powelson y. United Traction Co., 204 Pa. 474; Shuart v. Traction Co., 15 Pa. Superior Ct. 26 ; Joliet Street Ry. Co. v. Duggan, 45 Ill. App. 450; Davey v. Greenfield, etc., Ry. Co., 177 Mass. 106 (58 N. E. Repr. 172); Post v. Hartford St. Ry. Co., 72 Conn. 362 (44 Atl. Repr. 547) ; Dudley v. Front Cable St. Ry. Co., 73 Fed. Repr. 128.
    February 19, 1905:
   Opinion by

Mr. Justice Potter,

This is an action of trespass to recover damages for personal injuries received by the plaintiff while attempting to enter a car of the defendant company. The car had stopped at a street crossing to allow another passenger, who had signaled from the upper side of the street, to get on. After she. was safely on, the car was started in the usual manner. But the railway was a single track, and the rear platform of the car was open to receive passengers from both sides, and it seems that the plaintiff and her sister were upon the other side, waiting to enter. They did not signal for the car to stop, but it did stop for the passengers upon the opposite side of tho car, and the plaintiff assumed that she could entér from the side upon which she was standing, and while in the act of mounting the steps the car was started and she was thrown to the ground. Evidently the conductor did not see the plaintiff and was not aware that she was in the act of stepping on the car when he gave the signal to the motorman to go ahead. But it was his duty to have seen her. The company had invited her to enter from either side of the ear, so that it cannot be said that she was entering from the wrong side, or from a place where the conductor had no reason to expect a passenger to be. If this had been a double-track road, where passengers were universally expected to get on and off at the right-hand side of the rear platform, the conductor might have been excused for presuming that passengers would enter from one side only. But under the circumstances he was bound to look for the entry of passengers from both sides. Much has been said in the argument for the appellant about the lack of any signal by the plaintiff to indicate as the car approached that she wanted to board it. Her failure to signal might have excused the men in control of the car, had they failed to stop. But the car was stopped for one passenger upon the other side, and having thus stopped the car at a street crossing-, where passengers were to be expected to get on, it was the duty of the conductor to give sufficient time to all persons who might wish to enter the car, to do so in safety. He had no more right to imperil the safety of an intending passenger upon one side of the car than upon the other. The negligence of the conductor consisted in his failure to look on both sides of the rear platform before he gave the signal for the car to start.

The trial judge very properly instructed the jury that if the plaintiff attempted to get on the car while it was in motion, she was guilty of contributory negligence and could not recover. So that the verdict must be taken as establishing the contention of the plaintiff that the car was started after she had one foot on the step and before she was safely on the platform, and that this premature starting of the car threw her to the ground, and resulted in her injury.

Under the medical testimony it was, however, extremely doubtful if the serious trouble of which the plaintiff complained, could be justly charged to this accident. One of the physicians testified squarely that her condition was not the result of the accident, but was a long standing trouble. The other physicians did not go beyond saying that her fall may have caused a recurrence of the old trouble. So that in so far as this feature of the case was concerned, the jury could only have guessed at the seriousness of the effect of the fall. The trial judge might very properly have cautioned the jury in this regard, and have called their attention to the meagerness of the testimony tending to show that this accident affected in any serious way the permanent trouble from which the plaintiff had admittedly suffered before that time. The physician who examined her very shortly after the accident, testified that she was suffering from a condition which had existed for years, and which could only have been cured by an operation. However, no specific requests for instructions covering this feature were made by counsel at the trial, nor is the inadequacy of the charge in this respect here assigned for error..

The assignments which are presented are overruled and the judgment is affirmed.


author: Mb. Justice Dean,

text:
    Fitzell, Appellant, v. Philadelphia.

      Road law—Widening street—Damages—Easement—Dedicated street— Plotted street—Deed—Boundaries.

    Where a deed calls as a boundary a street actually opened, of the width of fifty feet, but plotted on the city plan as of the width of sixty feet, the grantee takes a fee in the additional ten feet in the front of his lot abutting on the street, but there is no implied covenant on the part of the grantor that the grantee shall have an easement in the ten feet in front of other adjoining land abutting on the street, and not conveyed by the grantor. In such a case when the city actually widens the street, the grantor is entitled to damages for the ten feet in front of the land still owned by him.
    Where an easement or other right is not expressed and is sought to be implied as attached to the grant of the fee, the same must clearly appear from the intention of the parties as shown by the terms of the grant, the surroundings of the property, and the other res geste of the transaction.
    When a municipal government lays out streets on the land of a private citizen, it is not the act of the owner in any sense, and hence there is no necessity for an implication of a covenant against the owner to give his land to the public without compensation.
    Argued Jan. 3, 1905.
    Appeal, No. 288, Jan. T., 1903, by plaintiffs, from order of C. P. No. 1, Phila. Co., Sept. T., 1902, No. 791, dismissing exceptions to report of referee in case of Robert W. Fitzell and Joseph Fitzell v. Philadelphia.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Exceptions to report of referee, James W. King, Esq.

      The facts appear by the opinion of the Supreme Court.
    The referee found that the plaintiffs had suffered no damages and he therefore assessed no benefits.

      Errors assigned were in dismissing exceptions to report of referee.

      M. J. O’ Callaghan, for appellants.
    The deeds offered in evidence show that the reference to Third street was for a mere convenience in the matter of description, and conveyed no easement to Fitzell’s grantees, nor any implied easement in either the grantees or the city of Philadelphia: Washburn on Easements, 95 ; McDonald v. Lindall, 3 Rawle, 492; Francies’s App., 96 Pa. 200; Ogden v. Grove, 38 Pa. 487.

      John H. Maurer, assistant city solicitor, with him George E. Eili and John L. Kinsey, city solicitor, for appellee,
    cited: Cole v. Philadelphia, 199 Pa. 464; O’Linda v. Lothrop, 38 Mass. 292; Lemay v. Furtado, 182 Mass. 280 (65 N. E. Repr. 395); Brooklyn Street, 118 Pa. 640; Hancock v. Philadelphia, 175 Pa. 124; Whitaker v. Phœnixville Boro., 141 Pa. 327; Gamble v. Philadelphia, 162 Pa. 413.
    March 6, 1905:
   Opinion by

Mb. Justice Dean,

In 1832 Third street of Philadelphia was plotted on the city plan and confirmed by the court of quarter sessions as fifty feet wide. In one of the districts, now forming part of the consolidated city, it was placed on a borough plan as fifty feet wide. In 1860 and 1886 it was confirmed as of this width in the present plan of the city. In 1888 Robert W. and Joseph Fitzell, these plaintiffs, became the owners in fee of a tract of land along Third street from Ontario to Westmoreland street, subject to the easement, the street being then plotted as fifty feet wide. In that year they dedicated Third street as plotted fifty feet wide between Ontario and Westmoreland streets. They also opened between these streets, two narrower streets, Wensley and Thayer, running at right angles to an opening into Third street. While the Fitzells were still owners of the whole tract, the city added ten feet to the width of Third street, plotting it on the city plan as sixty instead of fifty feet and actually opened the street that width in July, 1901. In 1897 the Fitzells had conveyed five lots of ground along Third street to five different owners, the five lots aggregating on Third street 250 feet; this, however, still left in the Fitzells the ownership in fee of 188 feet fronting on Third street and cornering on Third and Westmoreland streets, not touched by any express description of the lots conveyed in 1897.

The street was not widened or the ten feet actually appropriated by the city until July, 1901. “The time of the actual opening ” (see Whitaker v. Phœnixville Borough, 141 Pa. 327), “is the time the law fixes for estimating the damages.” The plaintiffs being still at the date of the opening the actual owners in fee of the 188 feet fronting on Third street, claimed damages for the appropriation of the ten feet for that width. The learned referee finds as a fact that they are still the owners of that strip 188 feet by ten feet, but he asks, have they by reason of the conveyances in 1897 of the lots fronting on Third street plotted to be widened, impliedly covenanted with their grantees to give them an easement on Third street sixty feet wide between Ontario and Westmoreland? And he answers, such was the implied covenant; therefore, plaintiffs have practically sustained no damages because the city appropriated the ten feet as an easement for the population of the whole city, that is, as to damages he invokes in favor of the city the doctrine of de minimis.

Assuming, as the referee propérly assumes, that by bounding the lots on Third street then plotted on the plan, implied an easement sixty feet wide the width of the plotted street in front of their lots, it also implied much more. It carried with it the covenant of an easement sixty feet wide on the entire street between Ontario and Westmoreland streets. The lots conveyed, with but slight difference in the words naming Third street as the boundary, are substantially the same as concerns that line. They are “situate on the east side of Third street parallel with and along the east side of Third street,” and so with each description. There is no reservation of any part of the street by the grantors nor is there mentioned any fixed monument, natural or artificial, which would stop the right-angle line of the lot at the outer line of Third street. Clearly, under all our authorities, the implied covenant in the conveyance was tlie fee to the middle of Third street as then opened; for it is immaterial how wide the street was at the date of the conveyance by the description in the deed, whether the street was fifty feet wide as then opened or sixty feet as plotted in the city plan, the grantees took a fee in the ten feet not yet opened and to the middle of the opened street which was only as yet fifty feet wide. The only thing that could be said is that the fee in the fifty-foot street is already subject to the public easement, while that in the ten feet was not yet so subject so far as concerned actual use but might be so subject in the future.

The leading case in this state enforcing this general principle is Paul v. Carver, 24 Pa. 207, decided in 1855; it is followed down to Higgins v. Sharon Borough, 5 Pa. Superior Ct. 92, decided in 1897, probably in number twenty cases, all of them adhering strictly to the same principle. The large number of cases since are to be ascribed to two causes, first, Paul v. Carver, was apparently inconsistent with two earlier cases, Union Burial Ground Society v. Robinson, 5 Wharton, 18; Bellinger v. Union Burial Ground Society, 10 Pa. 135, thus making the law confusing to the minds of the profession; and then, second, Paul v. Carver only held that the fee to the middle of the highway passed to the grantee unless the intention of the grantor to limit it by the outer line of the highway clearly appeared. Many attempts to so limit it by evidence dehors the deed in subsequent cases were made, but the rule has finally settled down to this, that to so limit there must be an express reservation, or the lines must be stopped short of the middle of the street or highway by a permanent natural or artificial monument. This brings us to the question involved in this issue.

Where a traveled street has been opened fifty feet wide but is plotted on the city plan as sixty feet and the grantors convey five lots aggregating 252 feet fronting on the street at the north end thereof as a boundary line, and still own 188 feet fronting on the same street at the south end thereof, what is the grantors’ implied covenant as to the width of the street on the part still owned by them ? As we have seen their covenant with their grantees is, that as to their lots, they take a fee to the middle of the street, and that they front on a highway fifty feet wide, for it is there of that width before their eyes. But is there an implied covenant on the part of the.grantors that the street is sixty feet wide in front of their unsold lots ? Taking the admitted facts in the case we cannot see, that the covenants extended further than, that Third street was fifty feet wide from Ontario to Westmoreland street; that was its width when the deeds were delivered; the covenant was in effect that the grantors would not obstruct it for that width or otherwise interfere with their grantees’ free use of it; the street is there now of that width; the easement of the grantees as part of the public has been in no way restricted. But the street was plotted on the city plan ten feet wider. This fact, however, in no sense implied a covenant that the city would some time in the future add ten feet to the width. The city was not bound to actually widen the street after plotting it; nor did the grantors impliedly covenant that it would do so; this was beyond their power. Their covenant does not embrace any act of the municipality in the future ; it may abandon its apparent intention to at some future date appropriate the additional ten plotted feet as part of the public easement or it may vacate the whole street. But the grantors have not expressly or impliedly covenanted that it would do either; except for the legislation which deters them from building on the ten-foot strip after it has been plotted on the city plan, it is as fully theirs as before. Why should their covenant with their grantees that the latter should have an easement on Third street fifty feet wide be enlarged to include ten feet they never had conveyed to anybody ? We do not concur with the learned referee in his statement, that the philosophy of the law warrants the implication of a covenant with the grantees of an easement to them on the ten feet of land unsold by the grantors.

The law is plainty otherwise and supports the contention of the appellee that where an easement or other right is not expressed and is sought to be implied as attached to the grant of the fee, the same must clearly appear from the intention of the parties as shown by the terms of the grant, the surroundings of the property and the other res gestae of the transaction. This principle is recognized in Union Burial Ground Society v. Robinson, 5 Wh. 18, and has never been doubted; many remarks have been made in subsequent cases as to other features of this case inconsistent with the judgment in that case, but the controlling principle has never been questioned. Paul v. Carver expressly recognizes it as good law, but Justice Lewis distinguishes it from the case before him. And in Cox v. Freedley, 33 Pa. 124, Justice Woodward distinguishes the case from the one before him. In no case that we have found has the principle as we have quoted it been overruled or departed from. The implied easement sought to be attached to this grant cannot be found in the surroundings of the parties, for they got an easement on the whole of Third street fifty feet wide in both directions; they got the fee of the ten-foot strip in front of their lots as then plotted on the plan; any implied covenant of an easement beyond would be wholly unwarranted by anything in the nature of the grant or the surroundings at its date. The cases cited by the referee as by analogy warranting the implication of an easement on the ten feet still owned by the grantors are not applicable. Brooklyn Street, 118 Pa. 640, was the case of a lot bounded by a street laid out but not yet opened; it was held that the grantor’s implied covenant was of a street corresponding with the one in the deed. Here a fifty-foot street corresponding with the one in the deed actually opened.

In Whitaker v. Phœnixville Borough, 141 Pa. 327, the owner had conveyed an adjoining lot fronting on an avenue thirty feet distant from the center line of the same. It was held that under this description the fee of the bed of the street remained in the grantor at the time of the assessment of damages, but as he had conveyed a frontage on the street which affected the value of the bed of the street, that should be considered in the assessment of damages. In the case before us there was no conveyance of a frontage on the unsold lots. In Gamble v. Phila., 162 Pa. 413, the unopened street was designated as an existing street and it was held that the grantor had estopped himself from denying the existence of such a street so designated by his conveyance. And so with other cases cited by appellee, they have no application to these peculiar facts. As suggested by the referee, there is no case in which it is held that the grantor by a conveyance of certain lots fronting on one end of a public street, has thereby by implication practically granted to the public an easement of an additional ten feet on the other end of a street where he had sold no lots.

As is said by Justice Green in Brooklyn Street, 118 Pa. 640 : “ When a municipal government lays out streets on the land of a private citizen, it is not the act of the owner in any sense, and hence there is no necessity for and implication of a covenant against the owner to give his land to the public without compensation.” The city has appropriated 1,888 square feet of plaintiff’s land for a public street; assume that under the statute they cannot build upon it since it was put upon the city plan and thereby swell damages, but they have not lessened its value by private grant of an easement. Their damages are substantial and capable of compensation and on that basis they should be assessed. The judgment of the court below is reversed and it is directed that a rehearing be held before the referee and plaintiff’s damages be assessed in accordance with this opinion.


author: Per Curiam,

text:
    Craig, Appellant, v. Commercial Trust Company.

      Mechanic’s lien—Covenant against liens—Building contract.

    A firm of contractors before entering into a building contract proceeded at their own risk and without any direction from the owner to demolish an old building, and for the purpose of this work ordered lumber which could not be used in the erection of the new building. Several days after the lumber was delivered, the building contract was executed. This contained a "no lien" stipulation, and was duly recorded in the office of the prothonotary. Held, that as the lumber did not actually enter into the building, and was delivered before any contractual relation existed between the contractors and the owner, and as the contract forbade liens, no mechanic's lien could be filed against the building.
    Argued Jan. 4, 1905.
    Appeal, No. 88, Jan. T., 1904, by plaintiff, from judgment of C. P. No. 2, Phila. Co., June T., 1901, No. 416, M. L. D. on verdict for defendants in case of George F. Craig, trustee for creditors of Charles Benton, Bankrupt, v. The Commercial Trust Company, owner or reputed owner; Charles P. Hart and John S. Hart, trading as Samuel Hart & Son, contractors.
    Before Dean, Fell, Brown, Mestbezat, Potter and Elkin, JJ.
    Affirmed.

      Scire facias sur mechanic’s lien.
    The opinion of the Supreme Court states the facts.
    The court gave binding instructions for the defendants.
    Verdict and judgment for defendants. Plaintiff appealed.

      Errors assigned were in giving binding instructions for defendants.

      Prank P. Prichard, with him Thomas S. dates, for appellant,
    cited: Oppenheimer v. Morrell, 118 Pa. 189; Presbyterian Church v. Allison, 10 Pa. 413; Odd Fellows’ Hall v. Masser, 24 Pa. 507; Singerly v. Doerr, 62 Pa. 9 ; Hinchman v. Graham, 2 S. & R. 170; Willey v. Topping, 146 Pa. 427; Lee v. Williams, 22 Pa. Superior Ct. 564.

      Ira Jewell Williams and John Hampton Barnes, with them Simpson Brown, for appellees,
    cited: Oppenheimer v. Morrell, 118 Pa. 189; Bradley v. Gaghan, 208 Pa. 511; Brown v. Cowan, 110 Pa. 588; Waters v. Wolf, 162 Pa. 153; Schroeder v. Galland, 134 Pa. 277; Gordon v. Norton, 186 Pa. 168; Williamson v. Tunis, 19 Pa. Superior Ct. 207; Healy v. Wayne Title & Trust Co., 19 Pa. Superior Ct. 371.
    March 6, 1905:
   Per Curiam,

On February 8, 1901, Charles Hart & Son commenced tearing down the old building which stood at the corner of Fifteenth and Market streets, Philadelphia. This was preparatory to a contract which they expected to get from the Commercial Trust Company for the erection of a new building on the site of the old one. At the time they had no contract with the owner, the Commercial Trust Company, nor any other person who had power to contract for even the demolition of the old building. Furness, Evans & Company who represented as architects the Arcade Real Estate Company told Hart & Son that they might at their own risk and their own responsibility tear down the old building. Hart & Son, doubtless knowing that the old material was probably worth the risk, tore down the building. While the work was going on, February 9, 1901, Hart & Son ordered hemlock and pine lumber from Charles Benton to the value of about $2,500, which was principally if not all used in scaffolding, “ shoring up ” and for other temporary purposes.

On February 16, 1901, Hart & Son made a contract with the owners, the Commercial Trust Company for the erection of the new building; the contract contained a “ no lien ” stipulation as provided in the Act of June 26, 1895, P. L. 369, and was duly recorded in the office of the prothonotary. Hart & Son failed to pay for the lumber and Benton filed this lien. The owner, the Commercial Trust Company, did not deny that the lumber had been delivered to Hart & Son by Benton, but it averred that the kind and quality of the lumber were such that it could not have been, and the material man must have known was not, intended to be used in the construction proper of the new building, and therefore was not the subject of a lien.

Under Oppenheimer v. Morrell, 118 Pa. 189, and like cases, the court below took this view of the evidence and instructed the jury to find for defendant. The new building was to be erected at a most important and conspicuous point in the city, was to be of stone, brick and iron. No one knew better than the material man, that his sap pine and hemlock boards, ranging from $15.00 to $20.00 per thousand, could not reasonably, properly form part of such a structure. This of itself would not have excluded the material man from a right of lien, but it cast on him the burden of showing that the lumber actually entered into the structure or that it was furnished the contractors on the credit of the building by reason of the latter’s contractual relation with the owner. On this point the plaintiff’s proof wholly failed. He showed that at the date the lumber was ordered Hart & Son were engaged in tearing down the old building and to that extent were in possession of the ground, but this was not by contract with or permission of the owner, this defendant, but by permission of architects acting for another company; and, further, the contractors were distinctly told that if they proceeded to demolish the old building they must do so at their own risk. There was no relation of contractor and owner whatever as yet between them and the trust company, the owner; that relation came into existence not until three days later. But when it was created eight days after the lumber was ordered, it contained the fatal stipulation by Hart & Son that no lien should be filed.

It cannot be plausibly argued, from the mere fact, that because Hart & Son were taking down the old building when they ordered the lumber, that Benton was warranted in assuming that they were contractors for the owner. When they did become such contractors the records plainly showed him no lien could be filed against the building by either contractors or subcontractors.

While many supplements intended to favor mechanics and material men have been passed to the act of 1836, there are still some cases where the owner can aver that his property is protected from wholly unauthorized claims. This is one of them.

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


text:
    Hoffman v. Hafner, Appellant.

      Ejectment—Restitution—Judgment—Striking off judgment.

    In an action of ejectment, where the plaintiff during the term in which the writ is issued irregularly takes judgment by default against the defendants for want of a plea and answer, and, upon such judgment, issues an habere facias possessionem and is given possession, the court of common pleas, in striking off the judgment, is bound to award a writ of restitution, where there is nothing on the record to show a sale of the property after possession was awarded.
    Argued Jan. 5, 1905.
    Appeal, No. 94, Jan. T., 1904, by defendant, from order of C. P. No. 5, Phila. Co., June T., 1903, No. 1637, refusing writ of restitution in case of John S. Hoffman v. Frederick J. Hafner et al.
    Before Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Rule to strike off judgment, set aside habere facias possessionem, and for restitution.
    Ralston, J., filed the following opinion:
    This was an action of ejectment. The writ issued on June 22, 1903, returnable first Monday of July, 1903. On September 3, 1903, judgment was entered against the defendant, Alphonse Hafner, for want of an answer. The act of March 21, 1806, sec. 12, 4 Sm. L. 326, provides that the defendant in ejectment shall enter his defense before the next term after that to which the process is returnable. Judgment by default cannot be entered at the first term: Vanderslice v. Garven, 14 S. & R. 263; Young v. Cooper, 6 W. N. C. 43. No statute has changed this rule, consequently the judgment for want of an answer was erroneously entered, and must be stricken off.
    The defendant also prays that the writ of habere facias possessionem be set aside, and that a writ of restitution be awarded. The writ has been executed by the sheriff, the plaintiff put in possession and the premises sold to a purchaser. Under these circumstances, restitution will not be awarded upon a mere technicality but to prevent injustice will be refused: Grant v. Rodgers, 6 Phila. 132. The force and effect of the writ may be determined after the trial: Grossman’s Appeal, 102 Pa. 137. The defendant’s affidavit sets out his defense upon the merits. The allegations are denied in the plaintiff’s answer.
    Upon consideration of all the circumstances the judgment is stricken off, but the prayer to set aside the habere facias possessionem and award restitution is refused.

      Mr or assigned was the order of the court.

      Clinton A. Sowers and John Houston Merrill, with them Harry S. Ambler, Jr., for appellant.
    The court below erred in refusing to strike off the habere facias possessionem and award restitution to the defendants: Lehman v. Howley, 95 Pa. 295; Post v. Wallace, 110 Pa. 121; Buchanan v. Banks, 203 Pa. 599 ; Allen v. Krips, 119 Pa. 1; Breading v. Blocher, 29 Pa. 347; Norris v. Hamilton, 7 Watts, 91.

      John Gr. Johnson, for appellee.
    We submit that a writ of restitution is not of right. Its award is a matter of sound discretion : Breading v. Blocher, 29 Pa. 347 ; Ranck v. Becker, 13 S. & R. 41; Fitzalden v. Lee, 2 Dallas, 205; McGee v. Fessler, 1 Pa. 126; Duncan v. Kirkpatrick, 13 S. & R. 292; Grant v. Rodgers, 6 Phila. 132; Grossman’s App., 102 Pa. 137; Johnson v. Fullerton, 44 Pa. 466.
    March 6, 1905:
   Opinion by

Mb. Justice Potter,

The only question presented by this appeal is whether or not in striking off an irregular judgment, the court below erred in refusing to award a writ of restitution. The judgment which was stricken off was admittedly irregular. It seems, however, that very soon after it was entered, a writ of' habere facias was issued and possession was given by the sheriff to the plaintiff. The court below in its opinion, states that after the plaintiff had been put in possession, the premises had been sold to a purchaser. But there is nothing upon the record to show this fact, and in his answer to the rule to show cause why the judgment should not be stricken off, the plaintiff avers that he is sole and absolute owner of the premises in question. It is suggested in the argument on behalf of the appellee that evidence of the sale has been lost, and, owing to the death of former counsel in the case, it cannot now be found. But as the refusal to award restitution was based chiefly upon this alleged fact, and as the argument here for the appellee stands upon the same ground, evidence of a sale ought to have appeared upon the record. But in any event, it is apparent from the answer of the plaintiff to the rule, that the sale of the property, if any there w~as, must have been made after the granting of the 'rule to show cause why the judgment should not be stricken off and restitution awarded.

“ Restitution is always granted on the reversal of a judgment, unless there be something peculiar in the case: ” Ranck v. Becker, 13 S. & R. 41. “ The court may, after a writ of possession, refuse the writ in special cases, as where the proceedings are reversed on an exception, which has ceased to exist: ” McGee v. Fessler, 1 Pa. 126. As where a tenancy has terminated: Ibid. To prevent injustice, restitution will also be awarded conditionally: Ranck v. Becker, supra. But in the present case none of these exceptional matters appear and the record shows nothing which in the exercise of the discretion of the court, should call for a refusal to award restitution. The court below says that, “The defendant’s affidavit sets out his defense upon the merits. The allegations are denied in the plaintiff’s answer.” In Ranck v. Becker, supra, tins court has pointed out that it will not do to refuse restitution because of conflicting statements by the parties. To do so would be to involve the court in endless difficulties, and that “ to avoid all embarrassment of this kind, the general rule must be, that on the reversal of a judgment, the plaintiff in error is entitled to restitution.”

We are satisfied that as the record of this case stands, it shows no reason for the refusal by the court below of a writ of restitution in favor of the defendant. As we said in Buchanan v. Banks, 203 Pa. 599, not only is there manifest incongruity in proceeding to trial with the ejectment plaintiff in possession, but in the interest of justice the appellants should be restored to the situation in which they stood before they were dispossessed.

The specification of error is sustained, and it is directed that the writ of habere facias possessionem be set aside, and that a writ of restitution be awarded to the defendant.