text:
    Lazarus v. Morris, Appellant.

      School laws—Eminent domain—Condemnation of land—Act of April 9, 1867, P. L. 51.
    Where land is condemned under the Act of April 9, 1867, P. L. 51, for school purposes, the title acquired by the school district is not an estate in fee simple, but merely a right to use and occupy the land for school purposes, and when this use and occupation ceases, the title reverts to the original owner, or those who hold under him.
    The exercise of the right of eminent domain, whether directed by the state, or its' authorized grantee, is necessarily in derogation of private right, and the rule is that such authority must be strictly construed.
    The appropriation of land under the power of eminent domain does not give a fee simple estate therein in the absence of express statutory language to that effect, but only a right to use and occupy the land for the purpose for which it is taken.
    Argued April 11, 1905.
    Appeal, No. 193, Jan. T., 1904, by defendant, from order of C. P. Luzerne Co., Oct. T., 1902, No. 809, dismissing exceptions to report of referee in case of George Lazarus et al. v. Michael W. Morris.
    Before Mitchell, C. J., Fell, Mestrezat, Potter, and Elkin, JJ.
    Affirmed.
    Ejectment for land in Hanover Township.
    Exceptions to report of Felix Ansart, Esq., referee.
    The facts are stated in the opinion of the Supreme Court.
    The referee reported in favor of the plaintiff.
    Exceptions to referee’s report were dismissed by the court.

      Error assigned was in dismissing exceptions to report of referee.

      James L. Morris, witli him Woodward, Darling $ Woodward, for appellant.
    The school district took a fee: Waynesboro School District 1 Pa. C. C. Rep. 422; Funk v. School District, 3 Sadler, 177; Pittsburg & Lake Erie R. R. Co. v. Bruce, 102 Pa. 23; Commonwealth v. McAllister, 2 Watts, 190; Haldeman v. Penna. Central R. R. Co., 50 Pa. 425; Delaware Division Canal Co. v. McKeen, 52 Pa. 117; Craig v. Mayor, etc., of Allegheny, 53 Pa. 477; Robinson v. Railroad Co., 72 Pa. 316; Wyoming Coal & Transportation Co. v. Price, 81 Pa. 156; P. & N. Y. Canal & R. R. Co. v. Billings, 94 Pa. 40; Cameron v. Pittsburg, etc., R. R. Co., 157 Pa. 617.

      Daniel A. Fell, with him Gr. Fred Lazarus, for appellees.
    School boards only acquire an easement to the lands which they condemn under the Act of Assembly of April 9, 1867, P. L. 51: Long v. Fuller, 68 Pa. 170; Funk v. School District, 18 W. N. C. 447; Newville Road Case, 8 Watts, 172; Cooley on Constitutional Limitations, 558; R. R. Co. v. Bruce, 102 Pa. 23; Jessup v. Loucks, 55 Pa. 350; Kellogg v. Malin, 50 Mo. 496.
    May 15, 1905:
   Opinion by

Mb. Justice Elkin,

While the appellant has specified thirty-one assignments of error, it is only necessary to discuss one proposition of law in order to dispose of this case. If the school district of Hanover township acquired by condemnation proceedings.under the Act of April 9, 1867, P. L. 51, an estate in fee simple to the land discribedin the writ of ejectment, the contention of the appellant must be sustained. If it only acquired the use and occupancy thereof for school purposes, now abandoned, the case must be affirmed.

The only title claimed by the appellant is that conveyed to him by the school district. The only title or interest the school district had in said land was that acquired by proceedings under the act of 1867. The question therefore arises, what right, title or interest did the school district take by reason of the proceedings instituted aud prosecuted to judgment under said act ? The answer is contained in the act itself which provides that when school directors are unable to procure eligible sites for the erection of schoolhouses by agreement with the landowner, it shall be lawful “ to enter upon and occupy sufficient ground for the purpose, which they shall designate and mark off, not exceeding in any case one acre, and to use and occupy the same for the purpose of erecting thereon a schoolhouse, with.its necessary or convenient appurtenances; and for all damage done and suffered, or which shall accrue to the owner or owners of such land, by reason of the taking of the .same,, for the purposes aforesaid, the funds of the district, which may be raised by taxation, shall be pledged and deemed as security.” The act further provides for the appointment of viewers, to go upon the land “ and having viewed the premises, they shall establish and determine the quantity and value of the land so taken, to be used for the purposes aforesaid, and after having made a fair and just computation of the advantages, and disadvantages, they shall estimate and determine whether any, and if any, what am punt of damage has been or may be sustained. ”

It will be observed that the act only covers the use and occupancy of the land so appropriated for school purposes. The damages assessed are intended as compensation for such use and occupancy. The viewers are to take into consideration the advantages and disadvantages to the landowner in the computation' of damages, the thought being that the location of a schoolhouse near the home of the owner is an advantage to him, which should be taken into consideration in fixing the amount thereof. There Is not a suggestion from the beginning to the end of the statute that the school district is h;o acquire anything more than a right to use and occupy the land for school purposes. This is the central idea upon which the entire statutory proceeding is based. The right to take private property for this public use is asserted under the power of eminent domain. Such power is an attribute of sovereignty. From the very nature of society and organized government it must belong to the state. It exists independent of constitutional mandate, and it existed prior to constitutions. It lies dormant, however, in the state until legislative action points out the occasions, the modes and the agencies for its exercise: 10 Am. & Eng; Ency. of Law (2d ed.) , 1049. It can only be called into operation by the authority of the legislature, and must be exercised in the manner, by the tribunal, and with the limitations provided by law: City of Madison v. Daley, 58 Fed. Repr. 751. This rule has long been recognized in our state. It therefore becomes necessary for any corporation, public or private, or individual claiming thereunder, asserting title under the power of eminent domain, to point to the provisions of the act of assembly under which the power is asserted. The grantee takes what the act gives, and no more. If the act gives an absolute estate, and compensation is provided on this basis the whole title may be acquired. If it only gives the right to use and occupy, the grantee only takes a conditional fee or easement, terminable on the abandonment of the use for which,the land was appropriated. The appropriation of land under the power of eminent domain does not give a fee simple estate therein, in the absence of express statutory language to that effect, but only a right to use and occupy the land for the purpose for which it is taken : Pittsburg, etc., Railroad Company v. Bruce, 102 Pa. 23; Lance’s Appeal, 55 Pa. 16; Pennsylvania Schuylkill Valley R. R. Company v. Paper Mills, 149 Pa. 18. The exercise of the right of eminent domain, whether directly by the state, or its authorized grantee, is necessarily in derogation of private right, and the rule is that such authority must be strictly construed: Dwarris on Statutes, 750; Mayor, etc., of Allegheny v. O. & P. Railroad Company, 26 Pa. 355; Commonwealth v. Erie and Northeast Railroad Company, 27 Pa. 339.

Applying these well-recognized rules to the case at bar, it is clear the school district of Hanover township only acquired the right to use and occupy the land in dispute for school purposes. The damages assessed by the viewers and paid by the school district to the landowner were based not on the value of the absolute fee in the land, but on the right to use and occupy the same for school purposes. In some of our cases this right has been called an easement, in others the suggestion has been made that it is a base or conditional fee, but whatever kind of right, estate or easement the school district acquired, terminated when it ceased to use it for the purpose for which the land was appropriated, and the title reverted to' the original owner or those who hold under him. The appellees in this case represent that title, and are entitled to repossess themselves of the land described in the writ of ejectment. ..

In this case it is not necessary to consider what constitutes an abandonment, as it is conceded the school district has ceased to use and occupy the land. Nor is it necessary to discuss whether the land so appropriated might be used for other kindred public purposes. The question does not arise under the facts of this case.

All of the remaining questions were properly disposed of by the court below.

Judgment affirmed.


source: Caselaw Access Project

author: Mb. Justice Elkin,

license: Public Domain

text:
    Wagner v. Lehigh Traction Company, Appellant.

      Negligence—Street railways—Head on collision with wagon—Bridge— Evidence.

    In an action against a street railway company to recover damages for personal injuries sustained by a collision between a wagon in which plaintiff was riding and an electric car, it appeared that the accident occurred on a dark night on a bridge which was a part of the public highway. The car was well lighted and had a headlight which could be seen SSO feet from the place of the accident. The car was running six miles an hour. The wagon had caught in a crevice, and the motorman did not see it until within twelve feet of it. He immediately put on the brakes and stopped the car within six feet from the place where the wagon was struck. There was evidence that some of the persons on the wagon got off, started back and waved or halloed to the motorman to stop the car. The motorman testified that he was looking ahead with his hand on the brake and there was no evidence to contradict him. Held, that the evidence was insufficient in law to convict the defendant of negligence in the operation of the car.

      Negligence—Street railways—Bridge—Township—Defect in bridge.

    In an action against a street railway company to recover damages for personal injuries sustained in a collision between a wagon and an electric car on a bridge, where the evidence shows that the accident was due to a defect in'the bridge, the burden is on the plaintiff affirmatively to show that the defendant, and not the township authorities, was responsible for keeping the bridge in repair.

      Negligence—Evidence—Conjecture of jury.

    A jury cannot be left to guess at or conjecture about what constitutes negligence. There must be evidence of the negligence complained of or there are no facts to be submitted to the jury.
    Argued April 11, 1905.
    Appeal, No. 216, Jan. T., 1904, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1903, No. 211, on verdict for plaintiff in case of Elmer E. Wagner and Nellie Wagner v. Lehigh Traction Company.
    Before Mitchell, C. J., Fell, Mestbezat, Potteb and Elkin, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Lynch, P. J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff Elmer E. Wagner for $2,000 and for Nellie Wagner $4,000. Defendant appealed.

      Errors assigned were various instructions, particularly in refusing binding instructions for defendant.

      Paul Bedford, and John T. Lenahan, for appellant.
    For the condition of the bridge to which the accident was due the township and not the defendant was responsible: McLaughlin v. Corry, 77 Pa. 109.
    Defendant’s car was not negligently run : Dunklee v. City Pass. Ry. Co., 209 Pa. 125.

      James L. Lenahan, with him James P. Costello, for appellees.
    Where a person, without fault on his part, is placed in a position of danger or. embarrassment through the negligence of another, he will not be held guilty of contributory negligence for failure to use all possible means for his safety; if he act in good faith, and his conduct, under all the circumstances, is that of a man of ordinary prudence, he is not chargeable with negligence, and whether he did so act is a question for the jury: Johnson v. West Chester, etc., R. R. Co., 70 Pa. 357; Penna. R. R. Co. v. Warner, 89 Pa. 59; Vallo v. Express Co., 147 Pa. 404; Baker v. North East Borough, 151 Pa. 234; Malone v. Pittsburg, etc., R. R. Co., 152 Pa. 390; Sprowls v. Morris Township, 179 Pa. 219; Foote v. American Product Co., 195 Pa. 190; Stover v. Penna. R. R. Co., 195 Pa. 616.
    May 15, 1905:
   Opinion by

Mb. Justice Elkin,

The plaintiffs in their statement of claim charged the defendant company with negligence in two respects; first, in runniho- the electric car, which collided-with the wagon and caused the accident, in a negligent, careless and reckless manner; second, in negligently, carelessly and defectively maintaining its tracks on, over and across the bridge where the accident occurred, so that there was a space between the traveled roadway of the bridge and one of the rails of the track sufficiently wide to permit the wheel of the wagon on which appellees were riding to drop or slip in and become wedged there. After a careful consideration of all the testimony offered in the case, we are of opinion that appellees' failed to establish the averment that the electric car complained of was operated in a negligent, careless or reckless manner. It was a dark night. The accident occurred' on a bridge, part of the public highway, over which the tracks of the defendant company were laid and operated. It had a right to use its tracks on the highway and over this bridge. The plaintiff also had a right on the bridge, being part of the highway. Neither had a greater right than the other. The car was running at a moderate rate of speed. It was well lighted with electricity. It had a headlight which could he seen several hundred feet away. The appellees did see the headlight and approaching car at a distance of 880-feet from the place of accident. The motorman did not see the- wagon until within twelve feet of the same, and immediately put on the brakes and proceeded to slow down. He stopped the car within six feet of the place where the wagon was struck,' thus conclusively ' showing that the car was running at a moderate rate of speed, the undisputed testimony being that it was running at the rate of six miles an hour. There is evidence that one of the appellees and some other witnesses who were in the wagon, apprehending the danger, started back and waved or hallooed to the motorman to stop the car, and it is contended that if the motorman had been attending to his duty he would have seen the waving and heard the calls, and could have stopped the car in time to prevent the collision. All of this, however, is conjecture. There is no evidence that the motorman was not attending to his duties. He says he was standing in his proper place, with his hand on the brake, looking out so as to be able to control the car. The learned counsel for appellees argues that the fact of his looking out does not necessarily mean that he was looking ahead, as required to do, and that therefore he failed in the performance of his duty. The facts do not warrant this conclusion. The uncontradieted testimony is that he was standing at his accustomed place, looking out, with his hand on the brake, ready to perform his duty, and the reasonable presumption is that he was looking out ahead of the car so as to avoid danger. There is no evidence that he heard the calls or saw the waving by the witnesses who say they attempted to have him stop the car. It being dark, he could not see clearly obstacles in front of him.

He did not see the wagon until within twelve feet of it, and then immediately applied the brakes and reversed the motor. This is all that could be done at that time to avoid the accident, and nothing more was required of him.

Under these circumstances the court erred hi submitting the question to the jury to determine whether there had been negligence on the part of the motorman in running the car. The jury cannot be left to guess at or conjecture about what constitutes negligence. There must be evidence of the negligence' complained of or there are no facts to be submitted to the jury. The fourth and fifth points of the appellant should have been affirmed.

On the question of whether the company was negligent in maintaining its tracks over the bridge, there is much doubt. It is not clear whose duty it was to keep the bridge in repair. While the case was tried on the theory that the hole or opening in the bridge was the proximate cause of the accident, its exact location was not definitely fixed. The evidence on this question is of a negative and uncertain character. There was no testimony to show what rights and privileges the appellant secured from the township authorities at the time the railway was constructed, and it does not appear whose duty it was to keep the bridge in repair. Primarily, it is the duty of township authorities to maintain a bridge, being part of a public highway, in a safe condition for the use of the traveling public. Whether there is anything in this case which relieves the township from this primary duty, does not appear. The appellees in order to sustain this action must show that it was the duty of the appellant to maintain the bridge at the point where the accident occurred, in a safe condition. If on a trial of the case it appears that no such duty rested on the defendant company but that the primary duty of the township to maintain the bridge at the point of accident still continues, the appellant will be relieved from liability. On this controlling question the evidence is unsatisfactory, and the charge of the court inadequate. The judgment will therefore be reversed in order that this question may be properly presented to the court and pry-

Judgment reversed and a venire facias de novo awarded.


author: Mb. Justice Brown,

text:
    Willing’s Estate.

      Will—Codicil—Execution—Publication—Evidence.

    Testator having by his will devised a house and lot to a charity, subsequently wrote to his attorney as follows: “I would like to add a codicil to my will as follows: I leave the house and lot .... to E. (his housekeeper). Make it as strong as possible, as I wish her to have them. Will you have it done as soon as possible, and let me sign it at once.” This letter was signed by the testator. At the time the letter was written testator made a copy of it and enclosed it in an envelope on which he indorsed the words “Copy of codicil to my will.” The endorsement on the envelope was not signed by the decedent. The attorney never prepared the codicil, and refused to do so. E. testified that she saw the testator put away the copy of the letter in his desk, calling her attention to the compartment in which he placed it. That after the attorney’s refusal to make the codicil, he said to E, “It does not make any difference, you have that paper and that is all right;” that she said to testator “put that away carefully, it may be good to me some day.” To which he replied: “Yes, I will, that is all right.” The testimony of E. was unsupported by that of any other witness. Held, that the letter to the attorney with the endorsement on the envelope and E.’s testimony were not sufficient taken together to establish a valid codicil.
    Scott’s Estate, 147 Pa. 89, and Harrison’s Estate, 196 Pa. 576, distinguished.
    Argued March 23, 1905.
    Appeal, No. 362, Jan. T., 1904, by the Rector and Church Wardens and Vestrymen of St. Mark’s Church, from decree of O. C. Phila. Co., Jan. T., 1904, No. 74, sustaining appeal from register of wills in Estate of J. Sperry Willing.
    Before Fell, Brown, Mbstrezat, Potter and Elkin, JJ.
    Reversed.
    Appeal from register of wills.

      The facts appear by the opinion of the Supreme Court.

      Brror assigned was the decree of the court.

      George Wharton Pepper, with him Sharswood Brinton and George Tucker Bispham, for appellant.
    A will in Pennsylvania must be in writing, signed by the testator at the end thereof and proved by two witnesses : Scott’s Est., 147 Pa. 89.
    It is undoubtedly the law that,- in order to make a writing constitute a valid will, it must appear that it was executed with testamentary intent; that the testator meant the writing in question to be the evidence of such intent, and that a writing which only contemplates the doing of some future act in furtherance of the writer's testamentary wishes is clearly not such an instrument: Mathews v. Warner, 4 Vesey, 186; Coventry v. Williams, 3 Curtis, 787; Stein v. North, 3 Yeates, 324; Barnet’s Appeal, 3 Rawle, 15; Murry v. Murry, 6 Watts, 353.
    In the absence of specific evidence as to when they were written, it is reasonable to infer that the words, “ copy of codicil to my will,” were indorsed by the testator upon the envelope containing the signed copy of the letter at the time when he wrote the letter and kept the copy.
    If written contemporaneously with the letter and copy, the meaning of the indorsed words is controlled by the fact that the testator actually sent the letter, and did not then treat it as anything but an instruction to his attorney.
    If the indorsed words were written at a later date in an attempt to convert.the nontestamentary letter into a codicil, then the writing of the words constituted the testamentary act, and as the indorsement is not signed no legal effect can be given to it: Wineland’s App., 118 Pa. 37.

      Alex. Simpson, Jr., of Simpson Brown, with him Robert W. Archibald, Jr., and Henry D. Paxson, for appellee.
    Where the evidence is not directly on the question of testamentary intent, is not relied on as itself supplying the evidence of that intent, and where the papers produced for probate disclose testamentary intent on their face (as in this case, the original letter taken in conjunction with the copy and the indorsement thereon), and all that is required is the clearing up of a possible ambiguity or the resolution of a doubt as to the true construction of the paper, the evidence of two witnesses is not required: Kisecker’s Est., 190 Pa. 476.
    Extraneous evidence is admissible to show that the testator intended this apparently incomplete instrument to be part of his last will and testament: Scott’s Est., 147 Pa. 89; Harrison’s Est., 196 Pa. 576; Kisecker’s Est., 190 Pa. 476; Fosselman v. Elder, 98 Pa. 159.
    Whatever seeming inconsistency there may be between the indorsement on the envelope and the contents thereof, it is no greater than the inconsistency in Scott’s Estate, in which the extrinsic declarations of the testator prevailed over the wording of his writing. There are several other cases in which testamentary intent has been gathered by a court from a paper some parts of which are apparently deliberative: Whyte v. Pollok, L. R. 7 App. Cases, 400; Torre v. Castle, 1 Curt. 303; Bone v. Spear, 1 Phillim. 345; Barwick v. Mullings, 2 Hagg. Eccl. 225; Hattatt v. Hattatt, 4 Hagg. Eccl. 211.
    May 15, 1905 :
   Opinion by

Mb. Justice Brown,

On June 11, 1902, J. Sperry Willing executed his will, in which he devised a house and lot of ground, No. 1429 Spruce street, Philadelphia, to his executor, in trust, with direction that the same be sold and the proceeds applied to the benefit of St. Mark’s Church. On June 17, 1903, he wrote his attorney, Ernest Zantzinger, Esq., a member of the Philadelphia bar, whom he had named as his executor, the following note :

“ June 17th, 1903.
“ Dear Ernest : I would like to add a codicil to my will as follows: I leave the house and lot 1429 Spruce St., also the contents of the house to Elizabeth Ely. Make it as strong as possible, as I wish her to have them. Will yop. have it done as soon as possible, and let me sign it at once.
“ Yours truly,
“ J. Sperry Willing.”

The request contained in the note was never complied with by Mr. Zantzinger, and his reasons for not complying are immaterial in determining the question before us. On July 1,1903, the testator went away for the summer and died at Platt Clove, N. Y., on the sixteenth of the following month. At the time his will was offered for probate a copy of the note of Júné 17,' 1908, addressed to Mr. Zantzinger and signed by the decedent, together with an envelope containing it, on which were indorsed the words in the handwriting of the decedent, “ Copy of codicil to my will,” was offered as a codicil to the will.’ The indorsement on the envelope was not signed by the decedent. The register refused to admit the documents to probate as a codicil for the reason that, standing alone, they were simply evidence of an intention to make a testamentary disposition of the house and lot different from that made jn the will, but which had not been shown by proper extrinsic evidence to have been declared by the decedent to be a codicil to his will.

It was conceded below, and is admitted here, that the note to the attorney of the testator, requesting the preparation of a codicil, does not, standing alone, make it such an instrument. This is clearly so. But the contention of the appellee, sustained by the court below, is, that the testimony of Elizabeth Ely, the beneficiary naihed in the note, taken in connection with the indorsement on the envelope, is sufficient to make the note a valid testamentary document. Miss Ely testified that after the decedent had written the note to Mr. Zantzinger, he said he thought he would make a copy of it, in case something should happen; that he did so and then mailed the letter himself; that when he came back from mailing it he asked her to come over to his desk, and said, “ I want you to see where I put it; ” that he took the copy and put it into a little compartment and locked it; that after he had placed it there he said, “ Well, that is done ; ” that after he received a letter from Mr. Zantzinger he went to see the latter, and on his return home said: “ Mr. Zantzinger said I was not in any condition to change this, to make a change in my will,” tó which she replied, “ That is absurd, why don’t you go to some other lawyer; ” that he answered, “ I don’t like to do that, I am afraid I would make Mr. Zantzinger angry,” adding, “ It does not make any difference, you have that paper, and that is all right; ” that the night before he went to New York he said to her, “Will you come over to my desk?” that she went over; that they took the note out and'read it, and she said to him, “ Put that away carefully, it may be-good to me some day,” to which he replied, “ Yes, I will, that is all right; ” that he put it away in his desk, where it was found by Mr. Zantzinger after his death. The testimony of Miss Ely was unsupported bj'- that of any other witness.

In Scott’s Estate, 147 Pa. 89, cited by the court below, and relied upon by the appellee as authority for reversing the decree of the register, two witnesses—the statutory number—established not only the decedent’s publication of the letter addressed to his attorney as his last will and testament, but his positive direction that it should be admitted to probate as such. In the letter addressed to his attorney he set forth his will, and, after signing the letter, had it formally witnessed by the person who had written it. After getting out of bed and signing it he handed it to the subscribing witness, telling him to put it in his (witness’s) box in the Fidelity Title and Trust Company, and that it was a good will —“ as good a one as I want.” He further said that the document would be probated ; that it was his will. Another witness testified that he said : “ That is as good a will as can be drawn ; if anything happens to me, have that probated.” In passing upon what was regarded as the important question in the case, Chief Justice Paxson said: “Was the paper sufficiently proved? Not its execution, for that, as before observed, was proved by three witnesses, but the fact that the testator intended it as his will, and declared it to be such. The law requires a will to be proved by two witnesses. We have here two witnesses as to the fact of publication as a will.” That case, as decided under its facts, is not only not to be regarded as authority for appellee’s contention here, but rather against it.

In Harrison’s Estate, 196 Pa. 576, the other case relied on by the court below, the testatrix inclosed certain bonds in an envelope, on which there was the following indorsement signed by her: “June 21, 1897. Six bonds for my brother John’s three daughters, also one for my nephew John Beard, to be sold after my death.” In holding that the indorsement operated as a will we said: “ This is another case of irregular .execution of a testamentary paper which is always to be regretted, but as to which we have sanctioned many departures from the strict requirements of our statute of wills. The one requirement that every will shall be in writing and shall be signed by the maker at the end thereof, we have never surrendered and it is to be hoped we never will. . . . The paper is clearly testamentary, it is fully signed by the testatrix, it does not take effect till after her death because the bonds are to be sold after her death, and the persons who are to take the benefit of the legacy are named with absolute certainty. The fact that pecuniary legacies of a similar amount with the probable proceeds of the bonds, are given to the same legatees by the will, does not, under all the authorities, affect their right to take these proceeds as additional legacies, and the circumstance that they are called bonds when, as to the stock certificate, the description is not precisely accurate, cannot affect the right of the legatees. The person who wrote the indorsement on the envelope, was examined as a witness, and explained, very fully and with entire satisfaction, not only that the indorsement was written on the envelope at the instance of the testatrix, and that it was signed by her, but also that she herself with her own hands, selected the bonds and securities from other packages of similar papers contained in her private box, and herself placed them in the envelope.”

The orphans’ court was of the opinion, expressed through two of its learned judges, that the indorsement on the envelope in the handwriting of the deceased, “ copy of codicil to my will,” supplied the second witness and was stronger evidence of a declaration by him that the inclosure was really a codicil to his will than could be established by the testimony of any number of witnesses. It does not appear when the indorsement was made. It is to be presumed, in the absence of any evidence to the contrary, that it was made when the copy of the letter was placed in the envelope. If so, it can be regarded as nothing more than an ordinary indorsement put on the envelope before placing it in the safe that its contents might be readily ascertained whenever, with other papers, it would be handled by the testator. If the copy of the note was not in itself a codicil, as is conceded, surely the mere preservation of it by the decedent in the manner stated would not transform the instructions to the attorney to do something in the future for him into a completed testamentary act by himself. He had instructed the attorney to prepare the codicil as soon as possible, that he might sign it, as the law required, to make it his testamentary act. If, on the other hand, the envelope was placed in the safe, with no indorsement on it at the time, containing but a\ copy of the instructions given to the attorney, and subsequently the indorsement was made as a publication by the decedent that the inclosed paper was a codicil to his will, the indorsement was ineffectual for such a purpose, for it was not signed by him. If he then intended it as his testamentary act, and returned the envelope with the indorsement upon it, it was no more his will than if he had, with his own hand, written on a separate piece of paper words devising the house and lot to his housekeeper and placed it in the safe without signing it. The indorsement was for one of two purposes—either to merely indicate the contents of the envelope as a matter of convenience or as an expression of testamentary intention; but such an expression of intention does not become an actual testamentary disposition of property until the testator signs his name to it “unless prevented by the extremity of his last sickness.” The words of the statute are: The writing “ shall be signed ” by the person making the same, “ or by some person in his presence and by his express direction,” unless prevented for the reason stated.

This is not the case of an irregular execution of a will, and no one of our many cases sustaining testamentary instruments, which have been irregularly executed, has any application. The difference between them and this is the difference of no execution at all. That the decedent intended to devise the house and lot to the appellee is manifest from his note to his attorney, but he could give effect to that intention only in the way provided by the statute. The manner in which the right of testamentary disposition of one’s property is to be exercised is for the legislature, and not for the courts; and though the intention of the decedent to give the house and lot to the appellee ought to be carried out, we are powerless to give it that effect because he failed to do so himself in the only way he could. So it has often happened, and so it will happen again, but it is better that, in the transmission of the estates of the dead to the living, such intentions now and then fail than to be without the written law regulating their valid expression. The decedent intended to act by signing a codicil which he asked his attorney to prepare; but it was not prepared by him, nor by any other, for no one else was asked to prepare it after Mr. Zantzinger refused to do so. The decedent died leaving, instead of an executed codicil, nothing but a copy of the instructions to his attorney to prepare it. With the statute before us, there can be no other view of the case.

The decree of the court below is reversed, and the decree of the register, refusing to admit the alleged codicil to probate, is affirmed, the costs on this appeal to be paid by the appellee'.


author: Me. Justice Elkin,

text:
    Pyne v. Delaware, Lackawanna & Western Railroad Company, Appellant.

      Railroads—Negligence—“Stop, look and listen”—Signals—Evidence— Charge.

    In a grade crossing accident case where the plaintiff and two other witnesses testify that no whistle was blown nor bell rung, and eight or nine witnesses for the defendant testify that a whistle was blown and bell rung at the proper places before the train approached the crossing, it is the duty of the court to call the attention of the jury to the kind and character of the testimony offered so that intelligent consideration may be given and correct conclusion may be reached.. If the charge as a whole meets this requirement, and no specific request for instructions on this subject is asked for, the court cannot be convicted of error.
    In an action against a railroad company to recover damages for personal injuries sustained at a grade crossing, it appeared that plaintiff drove towards the crossing and stopped at the usual place and looked up and down the tracks while a freight train was passing. He waited until this train had passed the crossing upwards of 300 feet. He then stood up in his wagon and saw a freight train about three-fourths of a mile away, coming in the same direction and on the same track as the one that had just passed. He also saw a work train of five or six flat cars standing on the second switch about thirty feet to the south side of the crossing. He looked up and down the track before starting his team, but his general view was obstructed by the freight train which had slowed down, and to some extent by the work train and the breaker. He did not see the approaching passenger train which struck him, on the north bound main track, until it was about 100 feet distant from the crossing. He could not then save himself and extricate his team from the impending danger. Held, that the ease was for the jury gnd that a verdict and judgment for plaintiff should be sustained,

      Where there is doubt as to the inference to be drawn from the facts, or where the measure of duty is ordinary and reasonable care, and the degree of care required varies with the circumstances, the question of negligence is necessarily for the jury.
    Argued. April 11, 1905.
    Appeal, No. 280, Jan. T., 1904, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1901, No. 590, on verdict for plaintiff in case of James Pyne v. Delaware, Lackawanna & Western Railroad Company.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Lynch, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The court charged in part as follows :
    [It was the duty of the company to give proper warning at a proper place of the approach of the passenger train. If the company through its servants performed that duty on this occasion, in the usual way, by blowing a whistle, or ringing a bell, or both, depending upon circumstances, plaintiff cannot recover. The plaintiff, in order to show the company was neglectful in this particular, testified he listened, that neither a bell was rung nor a whistle blown. Two witnesses, docking bosses, I think, testified that they were at the top of the lookout breaker, saw most of the occurrence, that the whistle did not blow; the last witness said he did not remember that the bell rang, and if it had rung he would remember it, the other said he was not sure, would not say whether the bell rang or not; there may have been other witnesses but I call your attention to these because it appears to me, if you believe them, they were in a position to hear and see. Upon the side of the defendant, many witnesses have been called—persons who were upon the passenger train, workmen who were upon the passenger train, workmen upon other trains and some persons who stood by—-who testified just as positively the whistle was blown and the bell rung. The engineer testified he started the bell— an automatic bell—ringing, as I remember it, very near Kingston.
    This is a question of fact, a question as to the credibility of the witnesses, and you are the judges of these facts and of the credibility of these men. It is not my province' and I have no right to interfere where it is your duty to decide. You are to judge of the men from any apparent interest or bias they may have shown or have in the case, from their appearance, their manner of testifying; size them up, generally, as they appeared before you, in the -witness stand and as you listened to the testimony, then decide upon their credibility. Believe them all if you can. If you cannot, then give credit to those whom you think are entitled to credit. If you decide as testified to by several witnesses upon the part of the defendant, that the whistle on the passenger locomotive was blown at or near the signal post, which was in the neighborhood of a thousand feet below the crossing, the defendant did its whole duty and, however unfortunate it may have been for Mr. Pyne, he cannot recover in this action. If you believe the signals were not given, you will pass to the next question.] [3]
    Defendant presented this point:
    4. If the jury believe that the plaintiff could have seen the train after he started and before he reached the east-bound track, it was his duty to have stopped before driving thereon and his failure to do so was negligence for which he cannot recover in this suit. Answer: I decline to affirm this point, for this reason: The point, in substance is, that after Mr. Pyne started, if he saw the approaching passenger train before he reached the track upon which it was running it was his duty to stop. I cannot say so, as a matter of law, because it would .mean it was his' duty to stop at any instant before his horses were actually upon the track, and with the second approaching freight train, and with the approaching passenger train, it is for you to say whether a man placed in such a predicament would have the presence of mind to know what to do. If he placed himself in an unfortunate position he would have to put up with it, but if the company, by its servants and trains, place him in an unfortunate and dangerous position, it could not require him to use good judgment instantly. [2]
    . Yerdict and judgment for plaintiff for $6,572. Defendant appealed.

      .JErrors assigned were (2, 3) above instructions, quoting them.

      A. H McOlintocIc and J. L. Lenahan, with them Arthur Hillman, for appellant.
    The plaintiff was negligent in not waiting a reasonable time for the passing freight train to get away so far that he could have seen the passenger train at such a distance as to avoid being struck: Kraus v. Penna. R. R. Co., 139 Pa. 272; Corcoran v. Penna. R. R. Co., 203 Pa. 380; Hughes v. D. & H. Canal Co., 176 Pa. 254.
    The plaintiff was negligent in not looking in the direction of the approaching train, when nothing obstructed his view, and driving on the track and being almost immediately struck : Harvey v. Erie R. R. Co., 210 Pa. 95; Corcoran v. Penna. R. R. Co., 203 Pa. 380; Canfield v. B. &. O. R. R. Co., 208 Pa. 372.
    There was overwhelming, positive testimony, as against hardly a scintilla of negative evidence, as to the giving of signals, and the court should have given binding instructions: Lonzer v. Lehigh Valley R. R. Co. 196 Pa. 610; Holland v. Kindregan, 155 Pa. 156; Knox v. P. & R. R. Co., 202 Pa. 504.
    The court did not call the attention of the jury in any way, much less in a pointed manner, to the great difference between positive and negative evidence of the giving of the signal: Urias v. Penna. R. R. Co., 152 Pa. 326; Holden v. Penna. R. R. Co., 169 Pa. 1; Hess v. R. R. Co, 181 Pa. 492.

      John T. Lenahan, with him Hdward A. Lynch, for appellee
    The present case is ruled by McNeal v. Ry. Co., 131 Pa. 184; Davidson v. Ry. Co., 171 Pa. 522; Wolfe v. Penna. R. R. Co., 22 Pa. Superior Ct. 335.
    Plaintiff was not guilty of contributory negligence : Phila. & Reading R. R. Co. v. Carr, 99 Pa. 505; Philpott v. Penna. R. R. Co., 175 Pa. 570; Hughes v. D. & H. Canal Co., 176 Pa. 261; Bard v. Ry. Co., 199 Pa. 94; Canfield v. R. R. Co., 208 Pa. 372.
    May 15, 1905:
   Opinion by

Me. Justice Elkin,

The answer of the appellant to the claim of the appellee is, first, that there was no negligence on part of defendant, and second, there was such contributory negligence by the plaintiff as to prevent his recovery in this action. The accident occurred at a grade crossing familiar to both parties. It was the duty of the appellant to use due care and caution in running its engine and hauling its train at this point, and to give suitable and timely warning of the approach thereof, by ringing a bell, blowing a whistle, or giving other danger signals. Did it meet this requirement of the law ? If so, there can be no recovery.

The appellee testified that no whistle was blown nor bell rung, and that no other danger signal was given. Two other witnesses corroborated his testimony in this respect in whole or in part. The appellant produced eight or nine witnesses who testified that the whistle was blown and bell rung at the proper places before approaching the crossing. Here, then, is a conflict of testimony which is generally for the jury. In such cases the court should call the attention of the jury to the kind and character of the testimony offered so that intelligent consideration may be given and correct conclusion may be reached. The appellant contends that the learned trial judge erred in not so doing. The court was not requested to call attention to the so-called positive and negative testimony of witnesses by a point submitted for the purpose, and we must therefore examine the general charge to see whether the cáse was properly presented to the jury. While the court did not specifically call the attention of the jury to the kind and quality of testimony submitted, yet the charge as a whole fully covered every point involved in the case, and under the circumstances we think the matter complained of is not reversible error. The learned court fairly left the entire question to the jury, where it properly belonged.

It was the duty of the appellee to stop, look and listen before going upon the crossing, and even after starting over the same it was his further duty to exercise reasonable and due care in order to avoid danger and accidents. If he failed to stop before going upon the track, he would have been guilty of negligence per se. It is conceded, however, that he stopped at the usual place and looked up and down the tracks while a freight train was passing. He waited until this train had passed the crossing upwards of 300 feet. He then stood up in his wagon and saw a freight train about three fourths of a mile away, coming in the same direction and on the same track as the one that had just passed. He also saw a work train of five or six flat cars standing on the second switch about thirty feet to the south side of the crossing. He looked up and down the track before starting his team, .but his general view was obstructed by the freight train which had slowed down, and to some extent by the work train and the breaker. He did not see the approaching passenger train which struck him, on the north-bound main track, until it was about .100 feet distant from the crossing. He could not then save himself and extricate his team from the impending danger. • What was his duty under the circumstances ? The answer is, ordinary and reasonable care.. Did the degree of care required vary under the facts of this case? . We think it did. If so, it was for the jury to determine whether he performed his duty under all the circumstances. Where there is doubt as to the inference to be drawn from the facts, or where the measure of duty is ordinary and reasonable care, and the degree of care required varies with the circumstances, the question of negligence is necessarily for the jury: Pennsylvania Railroad Co. v. White, 88 Pa. 327; Penna. R. R. Co. v. Peters, 116 Pa. 206; Rusterholtz v. New York, etc., Railroad Co., 191 Pa. 390; Cohen v. Philadelphia and Reading Railroad Co., 211 Pa. 227.

Under these authorities as applied to the facts of this case, it was for the jury to say whether the appellee exercised that ordinary and reasonable care required of him under all the circumstances, with'which.he found himself surrounded. The eharge of the learned trial judge fairly and adequately presented the case to the.consideration of the jury.

Assignments of error overruled and judgment affirmed.


author: Mr. Justice Potter,

text:
    Levison v. Davis, Appellant.

      Etusband and wife—Necessaries—Question for jury.

    In an action against a husband for alleged necessaries furnished to his wife, it is only-in a very clear case that the court will be justified in saying authoritatively to the jury that the goods purchased by the wife and charged to the husband were not necessaries; ordinarily it is a question of 'fact for ;.the jury. '. '

      In an action against a husband to recover the cost of expensive clothing and millinery furnished to the wife, the case is for the jury where it appears that there had been a previous course of dealing between the .parties, and that the husband had previously paid a large bill for similar articles.
    In such a ease a letter addressed by the husband to the plaintiff directing the latter to send bills to the'wife as she was keeping her own accounts-is admissible in evidence. -

      Appeals—Assignments of error—Rulings on evidence—Exceptions.

    The Supreme Court will not consider assignments of error to the admission of evidence where no exception was taken to the ruling of the court.
    Argued April 12, 1905.
    Appeal, No. 288, Jan. T., 1904, by defendant, from judgment of C. P. Luzerne Co., Jan. T., 1904, No. 212, on verdict for plaintiff in case of Annie Levisou v. George K. Davis.
    Before Mitchell, C. J., Brown, Mestrezat, Potter, and Elkin, JJ.
    Affirmed.
    AssuTnpsit against a husband for the cost of wearing apparel furnished his wife. Before Halsey, J.
    From the record it appeared that plaintiff claimed $2,243.50 for expensive clothing and millinery furnished Mrs. Davis during the month of October, 1902. It appeared that there .had been a previous course of dealing between the parties, and that the defendant had paid the plaintiff $1,600 for expensive clothing furnished his wife from March 22, to July 18, 1902. The court admitted under objection and exceptions the following letter:
    “ Bar Harbor, Me., Aug. 11.
    “ Dear Miss Levison : Yours received. Please send your bill to Mrs. Davis at East Hampton, Long Island, N. Y., care of Mrs. James Gallatin. Address communications to her, as she is keeping her own accounts.
    “ Yours G. K. Davis.”
    Verdict and judgment for plaintiff for $2,420.19. Defend-, ant appealed.

      Errors assigned were (2) in refusing binding instructions for defendant; (4-6) rulings on evidence.

      Thomas Darling of Woodward, Darling $ Woodward, for appellant.
    Where the articles furnished as necessaries are altogether extravagant and beyond the husband’s circumstances in life, the husband is not liable: Carry v. Patton, 2 Ashmead, 140; Breinig v. Meitzler, 23 Pa. 156; Mohney v. Evans, 51 Pa. 80; Bergh v. Warner, 47 Minn. 250 (50 N. W. Repr. 77); Barr v. Armstrong, 56 Mo. 577; Segelbaum v. Ensminger, 20 W. N. C. 213.

      James L. Lenahan, for appellee.
    As to whether the goods were necessaries or not, was a question for the jury : Wiler v. Fiegel, 10 W. N. C. 240; Gordon v. Caldwell, 31 Pitts. L. J. 154; Parke v. Kleeber, 37 Pa. 251; Rigoney v. Neiman, 73 Pa. 330.
    May 15, 1905 :
   Opinion bt

Mr. Justice Potter,

The burden of the appellant’s complaint in this case, as set forth in the specifications of error and in the argument, is that the court did not assume the responsibility of saying authoritatively to the jury that the goods purchased by the wife and charged to the husband were not “ necessaries.” In a very clear ease, the court would be justified in so doing, but, ordinarily, it is a question of fact for the jury.

We are not convinced that the trial judge erred in declining to charge that the articles purchased by the wife are not within the class of “ necessaries ” for which the wife may pledge the credit of her husband. If the goods included in this account had been the first purchases of the kind, made by the wife, the argument would be much stronger. But the evidence shows the existence of a course of dealing extending over some time, during which the wife was permitted by the husband to run an account with the plaintiff. Upon October 21,1902, the defendant paid a bill for $1,600, which included numerous articles which to many people would have seemed extravagant and unnecessary; and while he claims that he then gave notice to the plaintiff that he would pay no more such bills, yet the plaintiff denies that she received any such notice. This disputed question of fact was for the jury. The appellant complains in the fourth and fifth assignments of error, of the admission of evidence of the fact that about the time the purchases were made, the husband had under his control a large amount of money belonging to the wife. But no exception was taken in the court below to the admission of this testimony and we cannot consider it here.

The appellant also suggests that there was error in the admission of a letter written by the defendant to the plaintiff, in which he directed a bill to be sent to the wife, and stated that she was keeping her own accounts. We do not see that the defendant was in any way hurt by this testimony. Its date was not important, for the letter contained no refusal to pay bills contracted by the wife. Naturally he would desire that the bills should be sent to and approved by the wife, before payment, under any circumstances. Upon the whole case we think the question involved was for the jury, and we see nothing in the manner of its submission which would justify a reversal.

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


text:
    Garland, Appellant, v. City of Wilkes-Barre.

      Negligence—Municipalities—Streets—Accumulation of snow and ice.

    A general slippery condition of a street at a public crossing caused by the snow and ice in the winter time is not sufficient to charge a municipality with liability for an injury caused by a fall on the snow and ice.
    In an action against a municipality to recover damages for personal injuries sustained by a fall on ice at a public crossing, evidence that three days before the accident the snow and ice was in a ridgy condition, is insufficient to establish negligence on the part of the municipality, where there is no evidence offered to show the condition of the crossing during the following three days.
    Argued April 12, 1905.
    Appeal, No. 108, Jan. T., 1905, by plaintiff, from judgment of C. P. Luzerne Co., Feb. T., 1904, No. 53, on verdict for defendant in case of Bridget Garland v. City of Wilkes-Barre.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Wheaton, J.
    At the trial it appeared that on January 9, 1904, at about half-past nine in the evening, plaintiff fell on the ice and snow at a public crossing in the city of Wilkes-Barre. The evidence as to the condition of the street is set forth in the opinion of the .Supreme Court.
    The court gave binding instructions for defendant.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions- for defendant.

      James L. Lenahan, with him Chas. B. Lenahan, for appellant.
    If snow and ice is suffered to remain until it forms into • mounds or ridge's, the municipality will be liable therefor, on the theory that it then actually forms an obstruction in the highway : McKean v. Salem, 148 Mass. 109 (19 N. E. Repr. 21); McAuley v. Boston, 113 Mass. 503; Luther v. Worcester, 97 Mass. 268; McLaughlin v. Corry, 77 Pa. 109; Wyman v. Philadelphia, 175 Pa. 117; Smith v. Chicago, 38 Fed. Repr. 388; Norton v. St, Louis, 97 Mo. 537 (11 S. W. Repr. 242); Manross v. Oil City, 178 Pa. 276.
    Defendant had constructive notice: Dean v. New Castle, 201 Pa. 51; Butcher v. Phila., 202 Pa. 1.

      Edwin Shortz, with him Chas. E. McHugh and P. H. Camp-hell, for appellee.
    It requires more than a slippery condition of the crossing at the time of the occurrence of the accident, to make the city liable for the injury sustained by the plaintiff. It requires, in addition to a slippery condition, the accumulation of snow and ice in the shape of such pronounced ridges' and hills as to render the passage dangerous : Mauch Chunk v. Kline, 100 Pa. 119; McLaughlin v. Corry, 77 Pa. 109; Springer v. Philadelphia, 22 W. N. C. 132; Hanson v. Borough of Warren, 22 W. N. C. 133; Dehnhardt v. City of Phila., 15 W. N. C. 214.
    Where the obstruction exists for only a few hours, constructive notice cannot be inferred: Hanson v. Borough of Warren, 22 W. N C. 133; Kelchner v. Nanticoke Boro., 209 Pa. 412.
    May 15, 1905:
   Opinion by

Mb. Justice Elkin,

The circumstances of this case are similar to those presented" in Mauch Chunk v. Kline, 100 Pa. 119, wherein it was held that the plaintiff must satisfy the jury that there was an obstacle, other than the mere slippery condition and smoothness of the surface that made the crossing where he fell dangerous. A general slippery condition of the street at a public crossing caused by the snow and ice in the winter time is not sufficient to charge the municipality with liability, for the obvious reason that it cannot prevent it: McLaughlin v. City of Corry, 77 Pa. 109.

In the case at bar the testimony of the appellant does not' disclose more than a slippery condition of the crossing at the time of the accident, with some slight ridges of ice caused by wagons and Sleighs passing, over. When ashed to tell the jury how it happened, -she replied, “As I-got to-this pavement I slipped and fell. -My foot went down, you know, and slipped.” The accident occurred on a Saturday night. To support her allegation of negligence, on the part of the municipality, a witness was called to prove that, on the preceding Wednesday night the crossing in question was not only icy and slippery, but 'ridgy as well. No testimony was offered by the appellant to show the condition of the crossing between Wednesday arid Saturday, and no basis was furnished for the inference which the jury was asked to draw, to wit: that the condition testified to by this single witness continued unchanged until Saturday evening when she sustained the injuries that constitute the subject-matter of her complaint. In the meantime hundreds of wagons and sleds and thousands of pedestrians had passed over the crossing. Doubtless the passage of various vehicles up and down the alley caused the formation of small ridges of ice, but were these such as to render the crossing dangerous, and if so, was the danger apparent and notorious ? Of the numerous persons who passed along the sidewalk from Wednesday night to Saturday afternoon, not a witness was produced who avoided the crossing or regarded it as dangerous. Under this state of facts it is difficult to see under what theory the city could be charged with constructive notice. If a defect is such that it is discovered by only one of a thousand or more, persons who pass it in the ordinary pursuit of business or pleasure, it cannot be said to be notorious, or such a defect as a municipality is bound to take notice of: Burns v. Bradford City, 137 Pa. 361.

It is 'true the mother of the plaintiff testified that about the middle of Saturday afternoon she saw ridges of ice here and there on the crossing, but an examination of her testimony makes it doubtful what she meant by the term “ ridges of ice, ” or whether she would have noticed them .had she not been obliged to use a crutch in walking. The ridges of ice described by her were such as were caused by horses, wagons and sleds that were continually passing over the crossing. If her testimony could be regarded as establishing a dangerous condition of the crossing on Saturday afternoon, and no evidence had been given by the defense that later in the same afternoon it had been cleaned and all the snow and ice removed, the short time which elapsed before the accident would be insufficient to charge the municipality with constructive notice.

Assignments of error overruled and judgment affirmed.


author: Mb. Justice Fell,

text:
    Blotz, Appellant, v. Lehigh Valley Railroad Company.

      Negligence—Railroads—“Stop, look and listen”—Crossings.

    In an action against a railroad company to recover damages for the death of plaintiff’s son, it appeared that the deceased while riding in a buggy was killed by a passenger train at a grade crossing of the defendant’s road. At the usual stopping place ninety-five feet from the crossing there was a view of the track east in the direction of the train for 1,550 feet, but this view, because of intervening trees and buildings, did not include 500 feet of the track nearest the crossing. After leaving this stopping plhce no part of the track could be seen by a person riding on the public road until a point fifteen or twenty feet from the track was reached, where there was a view which extended, according to the plaintiff’s witness, from 300 to 500 feet, and, according to the witnesses for the defendant, about 1,000 feet. The deceased was familiar with the crossing, and the testimony of the only witness to the accident, the defendant’s engineer, corroborated by marks on the ground and on the side of the engine, left no ground for doubt that without stopping he drove directly into the side of the engine. Held, that binding instructions for defendant were proper.
    Argued April 12, 1905.
    Appeal, No. 290, Jan. T., 1904, by plaintiff, from judgment of C. P. Luzerne Co., Oct. T., 1899, No. 304, on verdict for defendant in case of Mary Blotz v. Le-high Valley Railroad Company.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.

      Trespass to recover damages for death of plaintiff’s son. Before Febeis, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      John T. Lenahan, with him Edward A. Lynch, for appellant,
    cited : Penna. R. R. Co. v. Weiss, 87 Pa. 447; Spear v. R. R. Co., 119 Pa. 61; McCafferty v. R. R. Co., 193 Pa. 339; Devlin v. Beacon Light Co., 198 Pa. 583; Heh v. Consolidated Gas Co., 201 Pa. 443; Rauch v. Smedley, 208 Pa. 175; Harlow v. Homestead, 194 Pa. 57; Lautner v. Kann, 184 Pa. 334; Whitman v. Penna. R. R. Co., 156 Pa. 175; Cougle v. McKee, 151 Pa. 602; Newman v. R. R. Co., 203 Pa. 530.

      E. W Palmer and J. B. Woodioard, of Woodward, Barling ¿f-Woodward, for appellee,
    cited: Penna. R. R. Co. v. Mooney, 126 Pa. 244; Holland v. Kindregan, 155 Pa. 156 ; Lonzer v. Lehigh Valley R. R. Co., 196 Pa. 610; Holden v. Penna. R. R. Co., 169 Pa. 1; Pottsville Lumber Co. v. Wells, 157 Pa. 5; Greenway v. Conroy, 160 Pa. 185.
    May 15, 1905:
   Opinion by

Mb. Justice Fell,

The plaintiff’s son while riding in a buggy was killed by a passenger train at a grade crossing of the defendant’s road. At the usual stopping place, ninety-five feet from the crossing, there was a view of the track east in the direction of the train for 1,550 feet, but this view, because of intervening trees and buildings, did not include 500 feet of the track nearest the crossing. After leaving this stopping place no part of the track could be seen by a person riding on the public road until a point fifteen or twenty feet from the track was reached, where there was a view which extended, according to the plaintiffs witness, from 300 to 500 feet, and, according to the witnesses for the defendant, about 1,000 feet. The deceased was familiar with the crossing, and the testimony of the only witness to the accident, the defendant’s engineer, corroborated by marks on the ground and on the side of the engine, leaves no ground for doubt that without stopping he drove directly into the side of the engine. The question presented by this appeal is whether the court was warranted in directing- a verdict for the defendant.

The plaintiff’s case rested upon the presumption that her son had stopped, looked and listened before driving on the crossing, and on evidence, mainly of a negative character, that no signal of the approach of the train had been given. The presumption that he stopped at the usual stopping place ninety-five feet from the crossing, is based on the natural impulse of self-preservation and there is nothing in the circumstances shown that repels it. But his duty did not end there. -A rule of law required that he should continue to exercise care as he approached the track and that, if necessary in order to obtain a view of it, he should get out of the buggy and walk in front of his horse. The question was not whether, having stopped once where he could see and hear, he should have stopped again, which would have been for the jury, but whether, having stopped where he could not see a train within 500 feet of the crossing, he was relieved from all further legal duty of care. This was for the court. That he exercised no precaution when near the track is manifest from the fact that he could have seen the train and that he was struck by the side of the engine. These circumstances connected' with the accident amount to evidence that admits of no conclusion except that he either did not look or that he went on in the presence of manifest danger, and the case comes within the rule established by Carrol v. Penna. Railroad Co., 12 W. N. C. 348; Myers v. B. & O. Railroad Co., 150 Pa. 386.

The judgment is affirmed.


text:
    The William H. Moudy Manufacturing Company v. Pennsylvania Railroad Company, Appellant.

      Railroads—Eminent domain—Condemnation proceedings—Instructions— Practice, C. P.—Act of March 27, 1848, P. L. 273.
    On the trial of an appeal from a report of viewers in condemnation proceedings against a railroad company, the first inquiry to be made is whether any damages have been or may be sustained by the landowner, and if it be determined that damages have been, or may be sustained, the next step is to ascertain and fix the amount thereof. Thus if two witnesses for the railroad company testify positively that the claimant did not suffer any damage, it is error for the court in its charge to assume that some damages should be allowed. It is the duty of the court in such a case to instruct the jury to determine first, whether any damages had been sustained, and that question being answered in the affirmative, then to fix the amount thereof.
    In condemnation proceedings against a railroad the jury should be definitely instructed to determine, first, what would the property have sold for before the entry was made, and then what it would have sold for after the appropriation thereof, taking into consideration the expense and burden occasioned by the entry, the difference between the selling value of the land before and after being the measure of compensation for the injury committed.
    Argued April 19, 1905.
    Appeal, No. 2, Jan. T. 1905, by defendant, from judgment of C. P. Huntingdon Co., Feb. T., 1903, No. 15, on verdict for plaintiff in case of The William H. Moudy Manufacturing Company v. Pennsylvania Railroad Company.
    Before Dean, Brown, Mestrezat, Potter, and Elkin, JJ.
    Reversed.
    ■ Appeal from report of viewers. Before Woods, P. J.
    The court charged in part as follows:
    [In the case before you, the Pennsylvania Railroad Company desiring additional ground, proceeded under the law to condemn and take some of the ground of the William H. Moudy Manufacturing Company, the plaintiff in this case, and it now becomes your duty, gentlemen of the jury, to say how much this plaintiff is entitled to receive from the said.railroad company for the damages, which it has sustained by reason of this taking.] [1]
    ■ It is not denied that the said defendant company has taken ■some of the land of the plaintiff company, but it is contended .by. the plaintiff that there is a strip of thirty feet by 300 feet which has been taken by the defendant company, but on the other hand the defendant company contends that part of the land taken was a public street, which would reduce the land taken from the plaintiff company by the defendant company to a strip twenty feet wide by 300 feet in length. Now, gentlemen of the jury, if you'believe from the evidence that the .borough of Mount Union adopted the plan, which has been submitted to your view for consideration, then we say to you, in arriving at your verdict, you should only consider the strip twenty feet in width by 300 feet long. The plaintiff company has produced a number of witnesses who testify that the damages sustained by reason of this taking range from §8,000 to §20,000. The plaintiff, by William H. Moudy himself, claims the damages amount to §15,000; other witnesses say §8,000 and still others range between that amount and §20,000.
    [It is also in evidence by William H. Moudy himself that he paid §1,401 for the whole of the land, including the part taken, subject to a mortgage amounting with interest to §12,090, making §13,491 paid for this land. Now, gentlemenof the jury, in arriving at your verdict you must consider this sale in connection with the other evidence.] [2]
    The plaintiff company on the other hand have produced witnesses who state that the damages sustained by the plaintiff range from §500 to §5,000. The question is a matter of - fact for you to determine from the preponderance of the evidence, and by that I do not mean the evidence of the party who calls the greater number of witnesses, but the evidence which appeals to you as most fair and reasonable.
    [Now, gentlemen of the jury, in making up your verdict, as to how much damages the plaintiff company has sustained, you must consider the value of the land taken; and secondly, what disadvantages has the plaintiff sustained by reason of the taking, what disadvantages have been cast upon the plaintiff and also what advantages has he gained. These are matters of fact to be considered by you in determining this case.] [3]
    [There has been a great deal of stress laid on this mine roller saw. You must bear in mind that the defendant company does not deprive the plaintiff company of the use of this saw; it is still the property of the plaintiff company and can be used by it. You must consider all the damage, which has been done to the plaintiff company in making it hard to operate said saw and other machinery in said building. The machinery is still there, and, as I said, it still belongs to the plaintiff company to use in any way they see fit. What inconvenience would the plaintiff be put to in operating this machinery in the place where it is now located or in some other way ? As I said before they have the machinery and you should not allow plaintiff the full value of the machinery, simply because it cannot be operated in the place it now is.] [4]
    Verdict and judgment for plaintiff for $6,229.16. Defendant appealed.

      Errors assigned among others, were (1-4) above instruc- . tions, quoting them.

      John D. Dorris, for appellant.
    The instructions were erroneous : Schuylkill Navigation Co. v. Thoburn, 7 S. & R. 411; Tietz v. Phila. Traction Co., 169 Pa. 516; Becker v. R..R. Co., 177 Pa. 252; Balto. & Phila. R. R. Co. v. Springer, 21 W. N. C. 143.

      Thomas E. Bailey, with him K. Allen Lovell, for appellee,
    cited: Setzler v. Penna. Schuylkill Valley R. R. Co., 112 Pa. 56.
    May 15, 1905:
   Opinion by

Mb. Justice Elkin,

This is a proceeding under the Act of March 27,1848, P. L. 273, to determine what damages, if any, were sustained by the appellee by reason of the taking of a strip of land owned by it, upon which to construct railroad sidings by the appellant company. The act provides, inter alia: “And after having made a fair and just comparison of said advantages or disadvantages, they shall estimate and determine whether any, and if any, what amount of damages have been sustained or may be sustained, and to whom payable, and make report thereof to the court.” It will be observed that the first inquiry to be made by the viewers under the express provisions of the statute is whether any damages have been or may be sustained by the land owner. This is the primary question to be considered in every such proceeding. If it be determined that damages have been or may be sustained, the next step in the inquiry is to ascertain and fix the amount thereof. This course of orderly procedure applies to the court and jury as well as the viewers. Where it is conceded by both sides that damages to some extent have been sustained, and all the witnesses so testify, exact compliance with this order of procedure may not be material, but where the right to any damages is contested, and some of the ■witnesses have testified that none' have been sustained, failure to observe this rule is error if ’the complaining party has been injured thereby. In such .cases' the duty of definite and exact instructions to the jury rests upon the court. Sympathy for one side, or prejudice toward the other may lead to inequitable results unless the trial judge by a clear and concise statement of the law lays down correct rules as a measure of damages for the guidance of the jury. The rule applicable to such cases was announced by Mr. Justice Gibson nearly a century ago in Schuylkill Navigation Co. v. Thoburn, 7 S. & R. 411, wherein it is said: The only safe rule is to inquire what would the property unaffected by the obstruction have sold for, at the time the injury was committed ? What would it have sold for, as affected by the injury ? The difference is the true measure of compensation.” This rule has never been departed from. It is the settled law of our state. It is true, incidental damages may sometimes be considered as bearing upon the question of depreciation in value under the general rule. The elements of disadvantage and burden imposed upon the land as a direct and necessary result of the location of the railroad upon it may be taken into consideration: Kersey v. Railroad Co., 133 Pa. 234. Such matters, however, cannot be considered as separate and distinct items on which to ascertain and assess damages. They can only be considered as affecting the value of the property before the land was condemned and after it was. appropriated for the use intended. The jury should be definitely-instructed to determine, first, what would the property have sold for before the entry, was made, and then what it would have sold for after the appropriation thereof, taking into consideration the expense and burden occasioned by the entry, -the difference between the selling value of the 'land before and after being the measure of compensation for the injury committed : Pittsburg, etc., Railway Company v. McCloskey, 110 Pa. 436; Pittsburg, etc., Railway Company v. Vance, 115 Pa. 325; Mahaffey v. Beech Creek Railroad Co., 163 Pa. 158.

The learned trial judge inadvertently, no doubt, failed to instruct-the jury in reference to the legal rule as a measure-of damages in this case. Two witnesses for the appellant having testified positively that the appellee did not suffer any damage, it was- error for the court-in-its charge to -the jury to assume that some damages should be allowed. It was the duty of the court to instruct the jury to determine, first, whether any damages had been sustained, and that question being answered in the affirmative, then to fix the amount thereof. The failure to observe this rule may or may not have resulted injuriously to the appellant. Inasmuch, however, as the verdict returned ■was for a very large sum of money for the comparatively small amount of land taken, we cannot say no injury was done the appellant thereby. ' This court has frequently held that a charge was inadequate which failed to present to the consideration of the jury a clear statement of the rules of law applicable to the questions involved: Tiety v. Philadelphia Traction Co., 169 Pa. 516; Richards v. Willard, 176 Pa. 181; Clark v. Union Traction Co., 210 Pa. 686.

While the charge of the learned trial judge was full, fair and complete in all matters pertaining to the general features- of the issue involved, it was clearly inadequate in the presentation of the exact legal rule for the measure of damages applicable to the case, and in other respects hereinbefore pointed out.

Judgment reversed and a venire de novo awarded.


author: Mr. Justice Fell,

text:
    Eckels v. Stuart.

      Mortgages—Record—Judicial sale—Test of priority.

    In determining the priority of liens against a property sold at a judicial sale, the only test of priority is the record as it stands at the time of the sale. This furnishes the only safe guide to the bidder at the sale.
    The liens against a property sold at a master’s sale in partition were (1) a mortgage given by a person who was then sole owner, with nothing on its face to indicate that it was an advance money mortgage; (2) mechanics’ liens and (3) a second mortgage. The last record date of the mechanics’ .'lien was long after the date of the recording of the first mortgage. The owner of the first mortgage claimed to show by evidence outside the record that no money was paid to the mortgagor until after the date of the commencement of the work on the ground, and that the mechanics’ lien was ■therefore prior to the mortgage, and that the mortgage was divested by the sale. The owner of the first mortgage bought in the property at the sale and claimed to share in the fund. Held, (1) that the evidence, dehors the'record was inadmissible; (2) that the mortgage was prior in lien to'the mechanics’ lien, and therefore not' divested.

      Argued April 24, 1905.
    Appeal, No. 4, Jan. T., 1905, by the Harrisburg Trust Company, from decree of C. P. Cumberland Co., June T., 1900, No. 8, dismissing exceptions to master’s report in case of James W. Eckels v. Mary L. B. Stuart.
    Before Mitchell, C. J., Dean, Fell, Brown and Elkin, JJ:
    Affirmed.
    Exceptions to report of Edward B. Watts, Esq., master in partition.
    The facts are stated in the opinion of the Supreme Court.

      Errors assigned were (1-42), dismissal of exceptions to master’s report and various extracts from the opinion of the court.

      Robt. Snodgrass, with him Sadler Sadler and John E-Fox, for appellant.

      E. M. Biddle, Jr., with him George M. Hays, for appellees.
    May 15, 1905:
   Opinion by

Mr. Justice Fell,

This appeal is from a decree confirming .the report of a master distributing a fund realized by a sale in partition proceedings. The fundamental question is whether a first mortgage was discharged by the master’s sale. The liens of record at the time of the sale were (1) a mortgage dated December 6, 1897, recorded December 8, 1897, given by Stuart, then the sole owner, to the appellant, the Harrisburg Trust Company, trustee, to secure the payment of bonds aggregating $ 15,000 ; (2) a number of mechanics’ liens filled between February 18, 1898, and September 22, 1898; (3) a second mortgage for $20,000, dated August 16, 1898, given by Stuart and Eckels, then joint owners, Eckels having purchased an undivided one-half interest. The work of erecting a building on the ground was commenced December 9,1897, one day after the recording of the first mortgage, but no money was paid Stuart on account of this mortgage until December 20. There ivas nothing on the face of the mortgage to indicate that the erection of a building was contemplated, nor that it was given for any other purpose than to secure in the usual way the bonds therein mentioned. All of these bonds were owned by the trust company at the time of the master’s sale, and it became the purchaser of the property. It did not appear from any of the mechanics’ liens when work on the building was commenced. In one it was set forth that the claim was for “ labor, materials and superintendence furnished within six months last past, to wit: between the first day December, 1897, and April 21,1899.” No dates were given in the bill of items annexed, and the last date on the record of the lien was April 21,1899. A settlement had been made with the mechanics’ liens claimants prior to the hearing before the master, and the existence of the liens was of importance only in considering the question of the divestiture of the first mortgage. The contest was between the first and the second mortgage creditors. The contention of the former was that the lien of the mortgage of December 6, 1897, did not attach until December 20, and that the mechanics’ lien related back to December 9, the date of the commencement of the work oil the ground. The contention of the latter, sustained by the master and approved by the court, was that as affecting the divestiture of the lien of the mortgage of December 6, the mechanics’ liens related back only to the dates on which they were filed.

The appellant had no claim to the fund for distribution unless its mortgage was divested by the master’s sale. Whether the mortgage was divested was to be determined solely by the record and not by what might have been- shown had the question been one of distribution only. The necessity of making the record the sole test by which to determine tbe effect of a judicial sale is manifest, and it has been clearly recognized. The only safe guide that a bidder at a judicial sale of real estate can have is the record as it stands at the time of the sale: Coyne v. Souther, 61 Pa. 455; Reading v. Hopson, 90 Pa. 494; Meigs v. Bunting, 141 Pa. 233; Hilliard v. Tustin, 172 Pa. 354. In Reading v. Hopson, 90 Pa. 494, a mechanic’s claim was filed after a mortgage was recorded, and evidence to show that the work on the building was commenced before the recording of the mortgage was rejected. It was said in the opinion by Sharswood, J.: “As a bidder at a sheriff’s sale is not bound to look beyond the record in determining what he shall bid, and as it cannot be shown against him that a prior lien has been paid or is not subsisting, so neither can he take advantage of any fact dehors the record to discharge the -land from the lien of the mortgage. At a sheriff’s sale the same rule must apply equally to all bidders, the mortgagee as well as others, without" regard to what their private information may be as to facts dehors the record. This puts them all upon an equal footing, as the bidder is not bound to look beyond the record, neither has he any right to effect his relations to others by any such evidence. The date of the filing of the lien was therefore conclusive as to all parties.”

That this is the established rule is not controverted. The appellant seeks to escape its application by assuming the status of a distributee. It was not a distributee unless its mortgage was divested, and it cannot be regarded as a distributee in determining the primary question of divestiture. If a stranger had been the purchaser, he would not be allowed to go beyond the record to show that the mortgage was divested and as against a subsequent lien creditor claiming the fund and who presumably relied on the record in protecting his interests at the sale, the appellant had no status but that of a purchaser.

The Act of June 8,1881, P. L. 56, since repealed by the Act of June 4,1901, P. L. 431, does not help the appellant. There was nothing on the face of the mortgage to indicate that it was given as an advance money mortgage. It bore every indication of not" being for advances to be made for the erection of a building, as it was given to secure twenty bonds “ of even date without preference,” and it was not so treated, in the preliminary negotiations nor in the subsequent arrangements of the parties to it.

The mortgage having been made by the sole owner of the land, it was not affected by the decisions in Wright v. Vickers, 81 Pa. 122, and the cases which have followed it: Stewart v. Allegheny Nat. Bank, 101 Pa. 342, and Read v. Fidelity Ins., etc., Co., 113 Pa. 574, that the lien of a first mortgage of an undivided interest in land may be divested by a sale in partition.

The decree is affirmed at the cost of the appellant.