text:
    Commonwealth v. Loughhead, Appellant.

      Criminal law — Voluntary manslaughter — Constable—Shooting an escaping prisoner.

    Where a prisoner after actual capture and custody under a warrant for a misdemeanor, attempts to escape, the constable having him in charge is not justified in shooting at and killing him. If the officer does so, he may be convicted of voluntary manslaughter.'
    Argued May 13,1907.
    Appeal, No. 85, Jan. T., 1907, by defendant, from judgment of O. & T. Clearfield Co., Dec. T., 1906, No. 30, on verdict of guilty of manslaughter in the case of Commonwealth v. D. P. Loughhead.
    Before Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.

      Indictment for murder. Before Smith, P. J.
    At the trial it appeared that the defendant after having arrested Lotsy Cardohely on an indictment charging assault, shot and killed the prisoner while the latter was attempting to escape.
    The court charged in part as follows :
    [Now as we have already said, and as so clearly appears in the learned opinion of Justice Orlady in the above extract, the right of an officer to use a weapon, except in self-defense, depends on whether the warrant authorizing the officer to act at all charges a felony or a misdemeanor; if a felony, and the person sought to be arrested flees, and refuses to stop when called on to do so by the officer, the officer can shoot, even to kill, to prevent escape if he cannot otherwise secure his prisoner. Even this right, as you will notice, grows out of. necessity of the ease. But if misdemeanor only is charged, the officer has no such right.] [1]
    Yerdict of guilty of voluntary manslaughter, upon which the court sentenced the prisoner to paya fine of $50.00 and undergo imprisonment in the penitentiary for one year and six months.

      Error assigned was portion of charge as above, quoting it.

      Singleton Bell, with him S. V. Wilson and Howard B. Hartswiok, for appellant.

      J. A. Gleason, with him J. H. Kelley, district attorney, and W. H. Patterson, for appellee.
    May 27, 1907:
   Per Curiam,

This appeal is from a conviction of voluntary manslaughter. The appellant was a constable and was deputized by another constable to assist him in arresting a number of persons who were charged in the warrant with assault and batteryj disorderly conduct and malicious destruction of property. Aftér one of the persons named in the warrant had been taken into custody, he broke away from the officers and, while running to effect his escape, he was shot and killed by the appellant. The instruction to the jury on the main point of the defense was that where a misdemeanor has been committed and is charged in the warrant, flight from an officer even after actual capture and custody, there having been no conviction, will not justify the use of a deadly weapon.

This was a correct statement of the law. The rule is otherwise when felony has been charged or has been committed in the presence of the officer. While in the case of a misdemeanor an officer is never required to retreat and may meet force with force, he cannot justifiably take the life of a person who is fleeing from arrest or of one who has be.en arrested and has escaped from custody and is fleeing from him: 2-Bishop’s New Criminal Law, sec. 650; Kerr on Homicide, 11. In Wharton on Homicide, 3d ed., 1907, p. 741, it is said : “An officer has no right to shoot a person who is merely running away from him without committing any violence, when under arrest or to avoid arrest for a misdemeanor. He must at least stop short of force which will result in the sacrifice of human life; and a killing in such a case is manslaughter at least.”

'We find no merit in any of the assignments of error. The judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Mestrezat, Mitchell, C. J.,

license: Public Domain

text:
    Rogers’s Estate.

      Will — Power—Wrongful exercise of power.

    The power to dispose by will of a certain sum of money out of a larger fund, to one class, and the balance of the fund to another class, with an alternative disposition by the donor of the power upon failure to make such distribution, is not validly executed by appointing a larger sum to the one class, and the balance of the fund to members of the second class not mentioned in the alternative disposition made by the donor.
    Mitchell, C. J., Fell and Stewart, JJ., dissent.
    Argued March 19, 1907.
    Reargued May 20, 1907.
    Appeal, No. 337, Jan. T., 1906, by Sarah Jane Pierce, from judgment of the Superior Court, Oct. T., 1905, No. 179, affirming decree of O. C. Chester Co., sustaining exceptions to auditor’s report in Estate of Sarah Jane Rogers, deceased.
    Before Mitohell, O. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ., on rearguinent.
    Affirmed.
    Appeal from Superior Court.
    The facts appear in the opinions of the Supreme Court. See also Rogers’s Estate, 31 Pa. Superior Ct. 620.

      Error assigned was the decree of the Superior Court.

      John G. Johnson, with him J. Frank E. Hause, for appellant.
    There is a long line of cases in England and in Pennsylvania, establishing that where a donee is given power to appoint a fee simple, and exercises it only partially as by appointing a life estate, the exercise pro tanto is good: Wilkinson v. Duncan, 30 Beavan, 111; Asay v. Hoover, 5 Pa. 21; Lawrence’s Estate, 136 Pa. 354; Zouch v. Woolston, 2 Burrows, 1136; Laurie v. Clutton, 15 Beavan, 65; Eales v. Drake, L. R. 1 Ch. Div. 217; Horwitz v. Norris, 49 Pa. 213.

      Alex. Simpson, Jr., with him Isabel Darlington, Thomas S. Butler and Thomas TV. Baldwin, for appellee.
    The execution of the power by the donee is defective and cannot stand unaided : Evans’s Est., 10 Pa. Dist. Rep. 261; Safe Deposit & Trust Co. v. Friend, 201 Pa. 429.
    Equity will not aid the defective execution of the power, because there is no meritorious consideration in the appointees of the donee.
    In Pennsylvania, a power ma.y not be exercised in part. The power must be strictly executed; If valid in part, or only partially executed, it fails entirely : Porter v. Turner, 3 S. & R. 108; Horwitz v. Norris, 49 Pa. 213; Wickersham v. Savage, 58 Pa. 365; Pepper’s App., 120 Pa. 235; Smith’s Est., 4 W. N. C. 265; Neilson’s Est., 17 W. N. C. 326; Evans’s Est., 10 Pa. Dist. Rep. 261.
    The donee failed to regard a material feature of the power, and the defect cannot be aided: Woods’s Est., 1 Pa. 368.
    May 27, 1907:
   Orinion by

Mr. Justice Mestrezat,

The very elaborate discussion of the questions raised on this record by the orphans’ court and Superior Court so fully vindicates the conclusion of those courts that nothing more can profitably be said in support of the decree entered by the orphans’ court. From the authorities cited and reviewed in the opinions filed by those courts, it is clear that the power of appointment conferred on Evans Rogers by the will of his wife was defectively executed, and that the alternative provision disposing of the residue of her estate becomes an effective disposition of the fund.

The donee of a power is simply a trustee for the donor to carry into effect the authority conferred by the power. In exercising the power, he must observe strictly its provisions and limitations. The estate appointed is that of the donor and not of the donee, and in making the appointment the intention of the donor and not that of the donee must prevail. In case of a restricted power, the donee’s discretion in exercising the power is defined by the will, and the limit there placed upon it must be observed.

Recurring to the case in hand, it is apparent that Rogers exceeded the power given him in the will of his wife. The authority conferred upon him by Mrs. Rogers’s will to dispose of the residue of her property is as follows: “ Four thousand dollars to my mother’s family and the balance to my father’s family in such manner as he may think proper.” The power thus given the donee is clearly expressed and confers authority upon him to appoint $4,000 to the mother’s family and the balance” to the father’s family. Such was the distribution which Mrs. Rogers authorized her husband to make of the residue of her estate. In violation of the power given him and in an attempt to dispose of the estate as if it were his own, he gave the mother’s family $4,500, thereby defeating the intention of the donor not only by giving the mother’s family more of the donor’s estate than she had authorized to be given it, but also depriving the father’s family of part of the estate which the donee was clearly directed to appoint to it. It is manifest, therefore, that the appointment was a direct violation of the power and hence cannot be sustained.

But will equity come to the relief of the appointees and cure the defective appointment? It cannot do so under the circumstances of this case unless at the instance of a mere volunteer it executes the power of appointment instead of the donee without any knowledge of his intention as to the manner of carrying it into effect. The contest here is between volunteers and under such conditions, as the authorities clearly show, a court of equity will not interfere. But suppose the appellant is in a position to invoke the assistance of equity, is the defect such that it may be cured? The donee gave $4,500 to seven of the mother’s family. This was $500 in excess of his power of appointment. If this appointment is good, it is manifest that “ the balance ” of the residue of the testatrix’s estate after deducting $4,000 cannot be given the father’s family. It is therefore absolutely necessary that the appointment of the $4,500 to the seven appointees be corrected by reducing it $500. The auditor attempted to do this by making a pro rata abatement of the amount given each appointee so as to make the total appointment conform to the power. But this was clearly beyond the authority of the auditor. The proportion of the $4,000 which the respective members of the mother’s family should receive was exclusively for the donee, and as there was nothing in the appointment disclosing his intention as to the proportion or manner in which he would have distributed the $4,000, the auditor or the court could not determine it. It was likewise for the donee to determine the appointees and their respective shares in “the balance” which was to be appointed to the father’s family. The auditor awarded the $500 appointed to the mother’s family to the appellant, a member of the father’s family, as the residuary legatee under the donee’s will. Here again, there is nothing whatever to indicate what the donee would have done had he been called upon to appoint the $500 to the father’s family. As well said by the learned orphans’ court: “ If he had discovered his error after executing the will, he might have appointed the $500 to a new legatee within the class, he might have simply applied it to a proportionate increase of the existing bequests within the class, he might have arranged a new and radically different disposition of the fund. As to this we could only conjecture and guess.” It is therefore apparent, we think, that the attempted execution of the power was so defective as to be incurably bad. The power conferred authority on the donee to appoint a certain and specific sum to two distinct classes of persons, and in his attempt to exercise the power he ignored and disregarded a material provision of his authority by appointing the fund or estate otherwise than directed by the donor, and in such manner as a court of equity is unable to give relief to the appointees.

While the sum given the appellant by the donee was the residue of the estate, it was limited in amount. The estate consisted of a certain fund, the amount of which is shown by the account of the executors of Evans Rogers. Four thousand dollars were directed to be given the mother’s family. “ The balance” which was to be appointed to the father’s family was necessarily a certain and fixed sum. Whether, therefore, the amount appointed to the appellant is called the residue, or the exact sum was named by the donee, is wholly immaterial, as in either instance she was given a fixed sum under the donee’s appointment which was not intended to and did not include the $500 distributed among the mother’s family. The amount appointed to the father’s family is just $500 less than the sum directed by the donor to be distributed among the different members of the family, and, if equity has authority to correct the appointment, there is no standard established by the appointment for ascertaining the intention of the donee as to which of the distributees or in what proportion among them the excess should be appointed. There is clearly no more authority for the court to aid the appointment by directing the payment of the $500 or any portion of it to the appellant than to all or any of the other members of the father’s family.

The judgment of the Superior Court is affirmed.

Mitchell, C. J.,

dissenting:

If Mrs. Rogers had bequeathed to members of her mother’s family by name, stocks or money amounting to $4,500, and it turned out that in fact she had only $4,000, the court would have found no difficulty in making a pro rata distribution of what she actually had, and the bequests would have been held good pro tanto. But instead of naming the legatees herself, Mrs. Rogers delegated that power to her husband. It was her right to do so. It is conceded that he exercised the power in good faith with intent to execute the donor’s will, but by a slip of memory, or a clerical miscalculation of amounts, he appointed $4,500 instead of the $4,000 which he' was authorized to do. Why should such an error, which would' not have invalidated the gift by testatrix herself, have that effect on the appointment by the donee of the power, standing' in loco testatoris ? That the donee of a power of appointment is carrying out the donor’s will and not his own, and, therefore, must follow the delegation of authority strictly is not disputed, but where, as here, there is an unquestioned intent to do so and no substantial difficulty in reaching that result, the construction should lean to the support of the exercise rather than to its defeat. It is said that the appointees are mere volunteers and have no claims upon the favor of a court of equity. But it is not a question of favoring volunteers, but of carrying out the lawful, clearly expressed and undoubted will of the testatrix. That is what the court, whether of equity or of law, should endeavor to do, not to be astute to find means of not doing. As already said, the only flaw in the execution of the power is a comparatively small error in the amount, which could be easily cured by a pro rata reduction, as it unquestionably would have been if the error had been made by the testatrix herself. The appointments were made in the manner prescribed, i. e., by' will, and every appointee named was in the class authorized. By this decision a lawful intent of the testatrix clearly expressed is to be defeated by a trivial error in the donee’s execution of the power, although it does not contravene the testatrix’s intent in any way that is not easily susceptible of plain remedy that would be applied Avithout question to the act of testatrix herself. The learned auditor in his first report said, the auditor Avas not furnished by counsel with any case that supports his contention,” and it is still to be said after three courts have made the effort that no one nor all of them have yet found and furnished such a case. It is the logic of technicality run mad.

So far I have referred only to the defect in the execution of the poAver with reference to the testatrix’s mother’s family, which was the basis of the decision of the court beloAv. But bad as it is in that aspect it is far worse as applied to the testatrix’s father’s family to which the appellant belongs. If the appointment to the mother’s family is set aside as bad then all the share that was to go to the father’s family is still intact and is well appointed, and the effect is the same as if the donee by refusing or neglecting to make any appointment at all to the mother’s family had left that part of his power unexecuted. Yet because instead of making no appointment on that branch of the power, he did what was equivalent, made one that was not valid, the entirely valid exercise of the other branch of the power must go down with it. The testatrix intended that the bulk of her estate (which by the auditor’s ■report amounted to about $28,000) should go to her father’s family, for she authorized her husband “ to dispose of the same by his will, as follows: Four thousand dollars to my mother’s family, and the balance to my father’s family.” Appellant is one of the father’.s family and the husband appointed,to her the sum of $14,000, and the residue of his wife’s estate after legacies to other members of the family. If the appointment to the mother’s family had been mathematically exact, i. e., $4,000, appellant under the execution of the power would have taken without question $14,000 and a residue of approximately $764. Yet on account of the error of appointing to the mother’s family $500 too much it is held that the fund for the father’s-family is $500 too little and, therefore, is not appointed at all. In plain English, it is held that because the donee of the power gave the appellant $500 less residue than he should have done by exact calculation in the execution of the,power, therefore, she shall get nothing. This is such a manifest travesty of justice and common sense that I cannot be persuaded it is law.

-Justices Fell and Stewart join'in this dissent.


author: Per Curiam,

text:
    Commonwealth v. Sheffer, Appellant.

      Criminal law — Murder—Evidence—Circumstantial evidence.

    In a murder trial, the fact that some of the evidence offered to prove the corpus delicti is circumstantial, is no objection to the competence or conclusiveness of the evidence.
    Argued May 21, 1907.
    Appeal, No. 322, Jan. T., 1906, by . defendant, from judgment of O. & T. York Co., April T., 1906, No. 38, on verdict of guilty of murder o^the Second degree in case of Commonwealth, v. Howard Sheffer,
    Before Mitchell,. C. J., Fell, Bjrown, Potter and Elkin, JJ.
    Affirmed.
    Indictment for murder. Before Bittenger, P. J.
    At the trial it appeared that the defendant was indicted for killing his infant son, who was about nine months old. There was evidence which tended to show that the defendant had struck the child and called it a bastard, and manifested ill will towards it. There was also evidence that the child suffered from fracture of the skull with' resulting inflammation of the brain, causing its death.
    The court refused binding instructions for the defendant.
    Verdict of guilty of murder of the second degree, upon which the prisoner was sentenced to imprisonment for twenty years.

      Errors assigned were (1) refusal of binding instructions for defendant and (2-6) Various instructions.

      Allen G. Wiest, with him Joseph R. Sttawbridge, for appellant.

      James G. Glessner, district attorney, for appellee, was not heard.
    May 27, 1907:
   Per Curiam,

The assignment of error on which the main argument is made is that there was no sufficient proof of the corpus delicti. But the evidence left no doubt that the child died from injuries to its head, resulting in a fracture of the skull, and the real issue was whether these injuries were the result of accident or were willfully inflicted by the prisoner. There was abundant evidence to take the latter question to the jury. It is true that some of it was circumstantial, but that was no objection to its competence or its conclusiveness: Com. v. Johnson, 162 Pa. 63 (69).

The other assignments are mainly detached portions of the charge, and do not require separate notice. The issue, as already said, was whether the injuries causing death were accidental, or intentional, and if the latter whether they were inflicted by the prisoner. The charge was a* full and careful review of the whole case, and put the issue before the jury clearly in several passages, including the following: “Now, before the jury can find defendant guilty of any crime at all charged in this indictment, they must be satisfied, and beyond a reasonable doubt, that a crime was committed, and that this child was murdered: . . . . but they must be satisfied beyond a reasonable doubt that these injuries were sufficient to cause the death, and that they wpre inflicted by this defendant, that these injuries were the act of the defendant in this case.” And again, “ In this, as in every other case, the defendant should not be convicted unless you are satisfied of the guilt of the defendant beyond all reasonable doubt. Circumstantial evidence in a criminal case ought to be carefully scrutinized, and it ought to be such evidence to convict as is entirely inconsistent with the defendant’s innocence; such evidence as cannot be consistent with guilt; such evidence as cannot be held to show anything but the guilt of the defendant.” And again, “Was the child murdered, or was it an accident? Did anybody murder this child ? is the first question. The next question is, Did this defendant murder this child? and are you satisfied beyond a reasonable doubt that he did so deliberately and with malice aforethought ? If you are satisfied beyond all reasonable doubt that he did, then he is guilty of murder of the first degree. But if, without any malice aforethought, he struck the child in sudden anger, and the child died as the result thereof, then he is not guilty of murder of the first degree, but guilty of murder of the second degree. But then, if not guilty of murder of the first or second degree, you may find him guilty of manslaughter, if you are satisfied beyond a reasonable doubt that he committed the act which led to the death of this child .... from an injury inflicted within ten days before its death.” The prisoner’s rights were thus carefully guarded at every point.

The judgment is affirmed and the record remitted for purpose of execution.


author: Mr Justice Elkin,

text:
    Combs, Appellant, v. Delaware & Atlantic Telegraph & Telephone Company.

      Negligence — Telephone company — Live wire.

    It is the duty of a telephone company to inspect its poles and lines, to maintain them in a safe condition as to the public and its employees and to keep them free from contact with dangerous and deadly currents of electricity not properly protected whether produced by it or by some other company.
    In an action against a telephone company to recover' damages for the death of plaintiff’s husband, it appeared that the decedent was killed while descending a telephone pole while in the employ of the defendant. The testimony showed that the pole in question was charred at a point where an electric light wire either did, or could have come in contact with it. The pole leaned towards the electric wire and away from its proper position, and the wire sagged in the direction of the pole. At some time, at least six weeks before the accident, a person not disclosed by the testimony nailed a piece of board over the charred place on the pole, and attached thereto a bracket a few inches wide on the end of which was a glass insulator, to which was fastened the electric wire. The decedent was not familiar with the lines in the vicinity of the place of the accident. In an emergency caused by a storm, he was sent out to aid other employees to locate the trouble, and make repairs to the lines. While descending the pole in question, his body suddenly fell to the ground, his face was black, and his shoe burst open. He did not live long enough to tell the story. Immediately after the accident it was noticed that the electric wire for a few inches on either side of the glass insulator was uninsulated. Held, that the case was for the jury, and that a verdict and judgment for plaintiff should be sustained.
    Argued Jan. 11, 1907.
    Appeal, No. 181, Jan. T., 1906, by
    plaintiff, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1903, No. 1,365, for defendant non obstante veredicto in case of Hattie L. Combs v. Delaware & Atlantic Telegraph & Telephone Company.
    Before Mitchell, C. J., Fell, Brown, Mesteezat Potter, Elkin and Stewart, JJ.
    Eeversed.
    Trespass to recover damages for death of plaintiff’s husband. Before Bréoy, J.
    The facts are stated in the opinion of the Supreme Court.

      Yerdict for plaintiff for $7,000. On motion of defendant judgment was entered for defendant non obstante veredicto.

      Francis 8. Brown, of Simpson <& Brown, with him Robert W. Archibald, Jr., for appellant.
    The case was for the jury : Dalmas v. Kemble, 215 Pa. 410; Bannon v. Lutz, 158 Pa. 166; Bier v. Mfg. Co., 130 Pa. 446; McGuigan v. Beatty, 186 Pa. 329; Fitzgerald v. Edison Co., 200 Pa. 540; Morgan v. Electric Co., 213 Pa. 151; Dwyer v. Electric Co., 20 App. Div. 124 (46 N. Y. Supp. 874); Newark Electric Light and Power Co. v. Garden, 78 Fed. Repr. 74; New Omaha Thompson-Houston Electric Light Co. v. Rombold, 68 Neb. 54 (93 N. W. Repr. 966; Illingsworth v. Light Co., 161 Mass. 583 (37 N. E. Repr. 778).

      Frank P. Prichard, with him James Wilson Bayard, for appellee.
    June 3, 1907:
   Opinion bt

Mr Justice Elkin,

Ye have laboriously examined this case in order to legally determine the rights of the parties. It is a close case and not free from difficulty. We have had some doubt, after full consideration of all the testimony, whether it was the duty of the trial judge to give binding instructions for defendant, thus deciding as a matter of law that the evidence was insufficient to convict appellee of negligence, or whether, under the established facts, the jury should have been permitted to draw the inference of negligence so as to make the company liable in damages. The trial judge submitted the question to the jury. The court in banc entered judgment for defendant non obstante. The case was carefully tried in the court below and has been ably argued here. The conclusion by this court is that it was a question for the jury, and for the following reasons : The proven facts are that the telephone pole was charred at a point where the electric light wire either did or could have come in contact with it. The telephone pole leaned toward the electric wire and away from its proper position. The electric wire sagged in the direction of the telephone pole. Someone, not disclosed by the testimony, at least six weeks before the accident, realized the danger and attempted to remedy the difficulty by nailing a piece of board over the charred place on the pole and attached thereto a bracket a few inches wide, on the end of which was a glass insulator to which was fastened the electric wire. The decedent, an employee of the telephone company, was not familiar with its lines in the vicinity of the accident. In an emergency, caused by a storm, he was sent out from Wilmington to aid the local employees at Chester in locating the trouble and mailing repairs to the lines. While descending the pole something happened, no one knows what except the dead man, and his lips are closed, but his body fell to the ground, his face was black, his shoe burst open, and he did not live long enough to tell the story. Immediately after the accident it was noticed that the electric wire for a few inches on either side of the glass insulator was uninsulated. How long it had been in this condition there is no positive evidence to show. No matter how unfortunate the accident, nor how distressing the circumstances surrounding it, there can be no recovery unless it be shown that appellee failed in the performance of some duty it owed to the decedent, its employee.

In our opinion, the facts above recited are sufficient to warrant a jury in finding that death resulted by reason of the foot of decedent coming in contact with the uninsulated part of the electric light wire near the bracket. Indeed, I do not see how any other reasonable inference could be drawn. Again, we think the facts were sufficient to submit to the jury on the question of constructive notice. The wire chief of the defendant company testified that when he took charge of the work, six weeks prior to the accident, the bracket projecting from the pole with the electric wire attached was there. He did not know whether it was properly insulated or not, and, relying on these circumstances, it is contended that the evidence fails to show any facts from which an inference could be drawn that the alleged dangerous or defective condition at the particular point had existed a sufficient length of time to charge defendant with constructive notice of the uninsulated portion of the wire. This position loses sight of the fact that the telephone pole was charred and that the board and bracket were nailed over the blackened surface at the point where the electric wire either could have come in contact with it, or actually did so. There can be no doubt that the surface of the pole was charred before the bracket was put up, because the board which supported it covered the blackened surface. If, therefore, in point of fact, the pole was charred by the uninsulated electric wire, it must have been done before the bracket was put up, more than six weeks before the accident, and this would be sufficient to charge appellee with constructive notice of the defective condition. It .is true there is no positive evidence showing that the pole was charred by contact with the uninsulated electric wire, but, in our opinion, the evidence was sufficient to submit to the jury on this question. The inference is almost irresistible that the pole was charred by the current of electricity passing through the uninsulated wire at the point of contact.

It is argued that because the dangerous and defective condition was not in the telephone wire, but in the electric wire, over which appellees had no control, the negligence complained of was that of the electric light company and not of the telephone company. This may be in a sense true. It ivas no part of the duty of the telephone company to repair the lines and wires of the electric light company, nor, in this particular instance, to properly insulate that portion of the wire uninsulated. It was, however, the duty of the telephone company to inspect its poles and lines and maintain them in a safe condition as to the public and as to its own employees. It was the duty of the telephone company to keep its lines and poles free from contact with dangerous and deadly currents of electricity not properly protected, and this duty rested upon it no matter whether the dangerous currents ivere produced by the telephone company or by some other company generating electricity. If the defective condition of the electric .wire, attached to the telephone pole, existed for a period of six weeks, and the facts are sufficient to justify the jury in so finding, the appellee company would be affected with constructive notice at least, and the duty rested upon it to give notice of that dangerous condition to its employee, the decedent, a new man unacquainted with the facts, and unfamiliar wTith the location, before he proceeded to climb the pole.

The question of contributory negligence is not raised'by this record and no opinion is expressed thereon.

Judgment reversed and record remitted to the court below with instructions to enter judgment in favor of the plaintiff on the verdict.


author: Me. Justice Fell, Mestrezat, J.,

text:
    Thompson v. Baltimore & Ohio Railroad Company, Appellant.

      Negligence — Railroads—Infant—Turntable—Use of land by owner. jn arL action against a railroad company to recover damages for per-
    sonal injuries to a boy eight years of age, it appeared that the defendant maintained a large train yard, used for shifting and storage of cars, and the receipt and delivery of freight, in close proximity to a thickly populated section of a city. Ten or twelve feet from an entrance to the yard from a public street there was a turntable which was not kept locked when not in use, but was fastened by a brake, that anyone could open. A high board fence surrounded the yard, but in places it was broken and the gates were usually open. Little or no effort was made to exclude the public from the yard, and at times it was used by persons residing in the vicinity, as a playground. Plaintiff entered the yard at night through an open gateway, and while standing near the turntable with which some children were at the time playing, was struck by a projecting bar which they used in turning it, and was thrown into the pit and caught between the wall and the turntable. Held, that plaintiff could not recover.
    The law fully recognizes the right of him, who, having dominion of the soil, without malice, does a lawful act on his own premises, and leaves the consequences of an act thereby happening where they belong, upon him who has wandered out of his way, though he may have been guilty of no negligence in the ordinary acceptation of the term; and the fact that the person injured is a child, makes no difference, 'unless there is negligence.
    An owner of land who makes changes on it in the course of its beneficial use, which tend to attract children, and to expose them to danger, is under no duty to take special precautions for their safety.
    Mr. Justice Mestrezat dissents.
    Argued Jan. 11, 1907.
    Appeals, Nos. 256 and 257, Jan. T., 1906, bjr defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1905, No. 2,135, on verdict for plaintiffs in case of Henry E. Thompson, by his father and next friend, Edward H. Thompson, and Edward H. Thompson, in his own right, v. Baltimore & Ohio Railroad Company.
    Before Mitchell, O. J., Fell, Brown, Mestrezat, Rotter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries to a boy eight years old. Before Audenried, J.
    The facts are stated in the opinion of the Supreme Court.
    Yerdict and judgment for plaintiffs for $2,500.

      Error assigned was in refusing binding instructions for defendant.

      W. B. Linn, for appellant.
    The defendant was not liable: Gillis v. R. R. Co., 59 Pa. 129; Duff v. R. R. Co., 91 Pa. 458; Flower v. R. R. Co., 69 Pa. 210; R. R. Co. v. Lewis, 79 Pa. 33; Gramlich v. Wurst, 86 Pa. 74; Gillespie v. McGowan, 100 Pa. 144; B. & O. R. R. Co. v. Schwindling, 101 Pa. 258; P. & R. R. R. Co. v. Heil, 5 W. N. C. 91; Rodgers v. Lees, 140 Pa. 475.
    The turntable decisions permitting recovery are both curious and anomalous; some assume that there is a standard of duty, as we understand them, requiring a railroad company 'to keep a turntable at its peril; others require the jury to decide whether a turntable is likely to prove “ attractive ” and “alluring” to children, permitting the jury to cast the defendant in damages upon an affirmative finding of that fact; still other courts frankly state that an exception to the general rule of liability governing ownership of property must and should be made in turntable cases: Walker v. R. R. Co., 53 S. E. Repr. 113.
    Two cases decided in New Jersey a day apart, D., L. & W. R. R. Co. v. Reich, 61 N. J. L. 635 (40 Atl. Repr. 682), a case in the court of errors and appeals, and Turess v. R. R. Co., 61 N. J. L. 314 (40 Atl. Repr. 614), considered both sides of the matter and adopted the rule contended for at bar.

      Chester Ff. Farr, Jr., with him John J. MoDevitt, Jr., for appellees:
    The fact that the child is a trespasser is immaterial if the accessibility of the property is such that the afi tractive and dangerous object is situated so near the highway as to charge the owner with the duty of recognizing the fact that children may be tempted to play with it: Rachmel v. Clark, 205 Pa. 314; Duffy v. Sable Iron Works, 210 Pa. 326; Kreiner v. Straubmuller, 30 Pa. Superior Ct. 609; Hydraulic Works Co. v. Orr, 83 Pa. 332.
    The injury to the plaintiff was the natural and probable consequence of the defendant’s act.
    The turntable decisions fully support appellee’s position: Barrett v. Southern Pac. Co., 91 Cal. 296 (27 Pac. Repr. 666); R. R. Co. v. Stout, 84 U. S. 657.
    Following is a list of other cases decided in the United States supporting a liability on the part of railroad companies for children injured by playing upon turntables: Alabama G. S. R. Co. v. Crocker, 131 Ala. 584 (31 So. Repr. 561); Ferguson v. Columbus, etc., Ry. Co., 77 Ga. 102; Chicago, etc., R. Co. v. Fox, 70 N. E. Repr. 81; Kansas Cent. Ry. Co. v. Fitzsimmons, 22 Kan. 686; Keffe v. Milwaukee, etc., R. Co., 21 Minn. 207; Twist v. Winona, etc., R. Co., 30 Minn. 164 (39 N. W. Repr. 402); Nagel v. Missouri Pac. Ry. Co., 75 Mo. 653; Chicago, etc., R. Co. v. Krayenbuhl, 65 Neb. 889 (91 N. W. Repr. 880); East Tennessee, etc., R. Co. v. Cargille, 105 Tenn. 628 (59 S. W. Repr. 141); Ft. Worth, etc., R. Co. v. Robertson, 14 L. R. A. 781; Gulf, etc., R. Co. v. Styron, 66 Tex. 421 (1 S. W. Repr. 161); San Antonio, etc., R. Co. v. Skidmore, 27 Tex. Civ. App. 329 (65 S. W. Repr. 215); Ilwaco Ry., etc., Co. v. Hedrick, 1 Wash. 446 (25 Pac. Repr. 335).
    June 4, 1907:
   Opinion by

Me. Justice Fell,

The defendant maintained a large train yard, used for the shifting and storage of cars and the receipt and delivery of freight, in close proximity to a thickly populated section of the city of Philadelphia. Ten or twelve feet from an entrance to the yard from a public street there was a turntable which was not kept locked when not in use but was fastened by a brake that anyone could open. A high boardfence surrounded the yard but in places it was broken and the gates were usually open. Little or no effort appears to have been made to exclude the public from the yard and at times it was used by persons residing in the vicinity as a playground. One of the plaintiffs, a boy not quite eight years of age, entered the yard at night through an open gateway, and while standing near the turntable, with which some children were at the time playing, was struck by a projecting bar which they used in turning it, and was' thrown into the pit and caught between the wall and the turntable.

The principles that fix the relation between a landowner and a person entering on the land without permission were fully considered in Gillis v. Railroad Co., 59 Pa. 129, a case in which the plaintiff was injured by the breaking down of a station platform on which he was standing, from mere curiosity, to witness the approach of a train. It was there held that the permissive use of the platform by persons not having business with the company, imposed on it no liability for defects in construction, and that a person using the private property of another, by permission or sufferance, takes upon himself the risks incident to it. It was said in the opinion by Sharswood, J.: “ It will appear on an examination of the interesting and elaborate discussions in the English courts of the question whether an action could be supported by such trespasser for personal harm occasioned by the spring-gun, mantrap, or dog-spike, set on the grounds of the defendant, in which it was determined that where there was no proper warning given, such an action well lies; that it rested mainly on the ground that a man cannot lawfully do indirectly that which it is unlawful for him to do directly. He cannot shoot or maim or set a ferocious dog upon a mere trespasser. He shall not there place a concealed machine where it will be likely to do the same thing, or let such a dog loose in his grounds without warning: Deane v. Clayton, 7 Taunt. 489; Ilott v. Wilkes, 3 B. & Aid. 304; Bird v. Holbrook, 4 Bing. 628. It is, however, equally well settled that the owner of property is not liable to a trespasser, or to one who is on it by mere permission or sufferance, for negligence of himself or servants or for that which would be a public nuisance if it were in a public street or common where all persons have a legal right to be without question as to their purpose or business.”

In Gramlich v. Wurst, 86 Pa. 74, a contractor, who was in exclusive possession of land for the purpose of carrying out his contract, had caused an excavation to be made and had left it unguarded at night. A person crossing the land fell into the excavation and was killed. In the opinion denying the right to recover it was said: “The law fully recognizes the right of him, who, having dominion of the soil, without malice does a lawful act on his own premises and leaves the consequences of an act thereby happening where they belong, upon him who has wandered out of his way, though he may have been guilty of no negligence in the ordinary acceptation of the term.” In Gillespie v. McGowan, 100 Pa. 144, a child under eight years of age was drowned in an abandoned well, eighty feet from a city highway, in an uninclosed lot which was a place of resort in hot weather. The instruction to the jury that “ The true principle which must be applied to a case of this kind is this: the owner of premises in the neighborhood of a populous city, and opening on a public highway, must so use them as to protect those who stray upon them,” was expressly disapproved and the judgment for the plaintiff was reversed. In Baltimore & Ohio Railroad Co. v. Schwindling, 101 Pa. 258, a boy under six years of age went, for his own amusement, on the platform of a railroad station to observe an approaching train and was struck by an iron step which was bent and projected a few inches from the car. A judgment for the plaintiff was reversed on the ground that the company owed him no duty of protection under the circumstances. This principle has been applied in a variety of cases of trespass by children. In Rodgers v. Lees, 140 Pa. 475, it was applied in a case where a child took hold of a chain which was a part of a hoisting apparatus and was over a sidewalk outside of the building line; in Moore v. Railroad Co., 99 Pa. 301, where a boy was walking along the tracks of a railroad on the outer ends of the sleepers and was injured by a passing train; in Oil City, etc., Bridge Co. v. Jackson, 114 Pa. 321, where a boy in crossing a bridge walked on a gas pipe five inches in diameter and fell through an opening in the floor.

Of Hydraulic Works Co. v. Orr, 83 Pa. 332, relied on by the plaintiffs, it has often been said that it is authority for its own facts and, as far as it appears to sanction the doctrine that a child cannot be treated as a trespasser, it has been expressly overruled: see Gillespie v. McGowan, 100 Pa. 144, and Rodgers v. Lees, 140 Pa. 475. In the first of these cases it was said: “In Hydraulic Works Co. v. Orr, there was a recklessness that may be said to partake of the nature of wantonness and it is only upon this principle that judgment can be logically sustained.” In Duffy v. Sable Iron Works, 210 Pa. 326, an open vat, into which hot tar and grease were run, had been placed in an open space so near the line of the street that a child might unconsciously walkinto it. In Rachmel v. Clark, 205 Pa. 314, the defendants had used for storage the sidewalk of a street in connection with an open paved space in front of their building, separated from the.street only by an imaginary line. The negligence was in placing on a public way, where all persons had a right to be, a slab of slate in such a position that the touch of a child’s hand would cause it to fall.

The fact that the person injured was a child makes no difference unless there was negligence. The plaintiff’s youth relieves him of the charge of contributory negligence but it does not give rise to an imputation of negligence on the part of the defendant. He was where he had no right to be, on the property of the defendant, which.it was using in a lawful manner for a lawful purpose in the conduct of its business. It owed him the duty not to injure him intentionally but it was under no duty actively to take care of him either by keeping him out of the yard or by protecting him after he had entered it from his own acts or the acts of others who, like him, had entered without permission. There was no negligence unless there was breach of duty. There was no breach of a duty owing an adult. An owner of land is not liable for its condition to an adult who enters without permission. Unless a different standard of duty is to be established as to a child, there was no liability in this case.

Whether an owner of land who makes changes on it in the course of its beneficial use, which tend to attract children and to expose them to danger, is under a duty to take special precautions for their safety, is a question on which there is a conflict of authority. That such a duty exists has been asserted in some jurisdictions and denied in others. The earlier cases on the subject followed Railroad Co. v. Stout, 84 U. S. 657, but the tendency of the later decisions is decidedly against the imposition of such a duty; some of the courts that adopted the ruling in Railroad Co. v. Stout, have since repudiated it and others have followed it with hesitation or have limited its application to a particular class of improvements.

The establishment of such a duty would create a restraint, which in some cases would amount to a prohibition, upon a mode of beneficial use of land, for - the protection of intruders and intermeddlers. It is difficult to see any ground upon which such a duty can be placed. An owner is not liable for leaving his land in its natural shape. Why should he be held liable for placing structures upon it which are harmless in themselves and are necessary for the lawful use he wishes to make of it ? It cannot be said that he invites or allures children because no such intention in fact exists, nor that he sets a trap for the innocent and un wary. The law does not impose a duty upon the landowner to take special precautions for a class of persons, a doctrine which, if carried to its logical conclusion, would, as was said in Gillespie v. McGowan, 100 Pa. 144, Charge the duty of the protection of children upon every member of the community except their parents.” In D., L. & W. Railroad Co. v. Reich, 61 N. J. L. 635, it Avas said by Gummere, J.: “ The viciousness of thfe reasoning which fixes the liability on the landoAvner because the child is attracted lies in the assumption that Avhat operates as a temptation to a person of immature mind is, in effect, an invitation. Such an assumption is unwarranted.”

If the standard of duty contended for is set up, it will be an exception to the general rule and a Avide and dangerous extension of the liability governing the ownership of property ; where it would logically end it is difficult to determine. As was suggested in Gillespie v. McGowan, 100 Pa. 144, it might make it the duty of the owner of a fruit tree to cut it down because a boy trespasser may possibly fall from its branches.” In the opinion in Turess v. Railroad Co., 61 N. J. Law, 314, it was said by Magie, C. J.: “ It is obvious that the principle on which the rule rests, if sound, must, be applicable more widely than merely to railroad companies and the turntables maintained by them. It would require a similar rule to be applied to all owners and occupiers of land in respect to any structure, machinery or implement maintained by them thereon, Avhich possesses a like attractiveness and furnishes a like temptation to young children. He Avho erects a tower capable of being climbed, and maintains thereon a windmill to pump water to his buildings; he who leaves his mowing machine or dangerous agricultural implements in his field after his day’s work; he who maintains a pond in which boys may swim in summer and on which they may skate in winter,— would seem to be amenable to this rule of duty.”

The doctrine of the so-called turntable cases has been disapproved in Walsh v. Railroad Co., 145 N. Y. 301; Walker’s Adm’r v. Railroad Co., 53 S. E. Repr. 113; Railroad Co. v. Reich, 61 N. J. Law, 635; Daniels v. Railroad Co., 154 Mass. 349; Frost v. Railroad Co., 64 N. H. 220; Paolino v. McKendall, 24 R. I. 432, 53 Atl. Repr. 268; Ryan v. Towar, 128 Mich. 463, 55 L. R. A. 310; Dobbins v. Railway Co., 91 Texas, 60; Ritz v. Wheeling, 45 W. Va. 262, and in many other cases. The doctrine is a sweeping innovation on the settled common-law rule that a landowner is not liable for the condition of his premises to one who enters them without permission. We are of opinion that it is not sound in principle and that it cannot be sustained.

The judgment is reversed and judgment is now entered for the defendant.

Mestrezat, J.,

dissenting:

Few, if any, more important cases have been considered and determined than the one now presented for the decision of this court. Especially is the doctrine announced far reaching and important to the multitude of people who live in the congested districts of the cities of the commonwealth. It takes from them a protection which has heretofore been accorded in all jurisdictions where the life of a child is of greater importance than any commercial interest. It completely destroys the maxim sic utere tuo ut alienum non laedas, which for centuries has protected the weak against the strong, the homes of the humblest against the encroachments of the highest. It gives to an individual or a corporation the right to erect upon his premises in the most densely populated part of the city of Philadelphia any machine or structure whatever which he deems necessary for carrying on his business, although such machine or structure may be so placed as to menace the life of every child in the neighborhood. It establishes a principle, as I conceive, unsupported by reason, unsustained by the best judicial thought of this country, and one so appalling that sooner or later if enforced by this court must result in legislative action. It cannot be that the people of this commonwealth will submit to a doctrine that declares that a child whose tender years deprive him of protection becomes a trespasser and without the pale of the law when he is attracted to the premises of another by an object, erected thereon by the owner, which appeals to the childish instinct and by which he is injured or killed.

The question involved in this case is not a new one either here or in many other jurisdictions. It is attempted in the opinion to show that the principle announced by the majority of the court is the law in many jurisdictions, including our own, and that the contrary doctrine is a sweeping innovation on the settled common-law rule that a landowner is not liable for the condition of his premises to one who enters without permission. I do not agree with either of these conclusions. On the contrary, while the right of the child to be protected under the circumstances of this case has been attacked, yet with deference I submit that the weight of judicial decisions and of text-book authority is overwhelmingly against the doctrine announced in the majority opinion.

A half century ago this court in the case of Rauch v. Lloyd, 31 Pa. 358, approved the principle announced in the leading English case of Lynch v. Nurdin, 1 Q. B. 29, and refused to follow the contrary doctrine adopted in New York and one or two other states. Mr. Justice ’Woodward speaking’ for the court said (p. 370): “But, that the same rule should not be applied to a child of tender years was so successfully demonstrated by Lord Denman in Lynch v. Nurdin, 6 Ad. & E. 30, and by Chief Justice Redfield in Robinson v. Cone, 22 Vt. 213, that I shall content myself with referring to their reasonings. Nor am I unmindful of the counter current of authorities in New York, but the preponderance of both reason and authority will be found favorable to the two adjudications first named. Every case is to be determined by its own circumstances, and that children are to be held responsible only for thediscretion of children seems self-evident propositions. A blind man is not bound to see, a deaf man to hear, nor a lunatic to reason; and yet they have a right to redress for injuries inflicted by the negligence of others. Children of tender age are not responsible to the law either criminally or civilly; and that for want of discretion.” It was there held that where a child of tender years attempted to pass under a train of railroad cars, negligently left standing on the crossing of a public street and by which he was injured, the owners of the cars were liable, but under similar circumstances they would not have been liable if an adult had been injured. In Gillis v. Pennsylvania R. R. Co., 59 Pa. 129, relied on to sustain the position of the majority of the court in the present case, Mr. Justice Shabswood, delivering the opinion, declared the doctrine of Lynch v. Nurdin still to be the law, saying (p. 142): “No reference is made in the opinion (he referred to) to Lynch v. Nurdin, 1 Q. B. 29, a decision much controverted, but one which has stood its ground.”

In Hydraulic Works Co. v. Orr, 83 Pa. 332, a child six years old, while at play, strayed from the street through an open gate into an alley and was killed by a falling platform twenty-four feet from the street, which was raised and lowered in receiving and shipping goods. At the entrance to the alley where it abutted on the street was a gate which was posted “ Private ” and “ No admittance.” The gate was frequently open, although the employees of the factory which adjoined the alley were instructed to keep it shut. The father and mother of the child brought an action to recover damages for his death on the ground that the defendant was guilty of negligence in respect to the condition or character of the platform and in not keeping the gate fronting on the street closed. There was a verdict and judgment for the plaintiffs which were sustained by this court. It was there held, in the language of the syllabus, that while it is true, in general, that where no duty is owed no liability arises, this rule varies with circumstances, and where, therefore, an owner has reason to apprehend danger from the peculiar situation of his property and its openness to accident, the question of duty then becomes one for a jury, to be determined upon all its facts of the probability of danger and the grossness of the act of imputed negligence. Chief Justice Agnew delivered the opinion and in part said (p. 336) : “Now, can it be righteously said that the owner of suqh a dangerous trap, held by no fastening, so liable to drop, so near a public thoroughfare, so often open and exposed to the entries of persons on business, by accident, or from curiosity, owes no duty to those who will be probably there ? The common feeling of mankind, as well as the maxim sic utere tuo ut alienum non kedas, must say this cannot be true — that this spot is not so private and secluded as that a man may keep dangerous pits or deadfalls there without a breach of duty to society. On the contrary, the mind, impelled by the instincts of the heart, sees at once that in such a place, and under these circumstances, he had good reason to expect that one day or other some one, probably a thoughtless boy in the buoyancy of play, would be led there, and injury would follow — especially, too, when prompted by knowledge that a fastening was needed. Perhaps the best monitor in such a case is the conscience of one who feels, in his dreadful recollection, the crushing sense that he had left such an engine of ill to take the life of an innocent child.” Mr. Justice Paxson disagreed with the views expressed in the opinion of the chief justice and noted his dissent on the record.

Hydraulic "Works v. Orr has been followed and approved by this court in all the cases on the subject, if we except some dicta used in the opinions in one or two cases. . In Gramlich v. Wurst, 86 Pa. 74, Mrs Justice Woodward, delivering the opinion and speaking of Hydraulic Works Co. v. Orr, says (p. 80): “ No cause was ever more justly decided. It was tire case suggested by Baron Martin in Hardcastle v. The South Yorkshire Railway Co., of a dangerous appliance adjoining a public way. The children were trespassers certainly, but then they were children, and the defendants were bound to have regard for the reckless and thoughtless traits of childhood. . . . Even a trespasser may have redress for negligent injuries inflicted upon him. . . . The Hydraulic Works Co. v. Orr rested on principles and precedents that sustained it amply, but which have no application here.” Schilling v. Abernethy, 112 Pa. 437, quotes from and follows Hydraulic Works v. Orr. Mr. Justice Gordon, delivering the opinion, said (p. 442): “We there held (Hydraulic Works Co. v. Orr) that circumstances may beget duties which under ordinary circumstances cannot be implied, and that when such circumstances are shown to exist, tbe question arising therefrom is not for the court, but for the jury. . . . Whether, then, the owner of these premises (in the case being decided), under the circumstances made apparent by the evidence, was or was not justified in maintaining such a deadfall as this bowing wall along the side of this passageway was surely a question for the jury, and one that could not lawfully have been withdrawn from the consideration of that body.” In Biddle v. Railway Company, 112 Pa. 551, Hydraulic Works Co. v. Orr is quoted with approval in the opinion which concludes as follows (p. 554) : “ It is very true extra precautions are not required in anticipation of the intrusions of trespassers, even though they be children, but when they do so intrude and are known to be in an improper place, they must not be so wholly neglected as to endanger their lives or limbs. Any other doctrine would so illy accord with Christian civilization as to render its maintenance impossible.”

In Arnold v. Pennsylvania Railroad Company, 115 Pa. 135, the Sioux City & Pacific Railroad Company v. Stout, 84 U. S. 657, the first of the turntable cases, is cited with approval and the principle there decided is stated in the following quotation (p. 140) : “ Whilst a railway company is not bound to the same degree of care in regard to mere strangers who are unlawfully upon its premises that it owes to a passenger, it is nevertheless not exempt from responsibility to such strangers for injuries arising from its negligence or from its tortious acts.” The opinion of this court then continues : “ This same doctrine has been approved by our own authorities, inter alia, in the cases of the Pennsylvania Company v. Toomey, 91 Pa. 256; Pennsylvania Railroad Company v. Lewis, 79 Pa. 33; Hydraulic Works Company v. Orr, 83 Pa. 332; Phila. & Reading Railroad Company v. Hummell, 44 Pa. 375, and Biddle v. Railway Company, 112 Pa. 551.” In Corbin v. Philadelphia, 195 Pa. 461, decided in 1900, Hydraulic Works Co. v. Orr is cited with approval, and Mr. Justice Brown speaking for the court quotes two-thirds of the opinion in that case, including the strong and emphatic language used by Mr. Justice Agnew. In Rachmel v. Clark, 205 Pa. 314, decided in 1903, Hydraulic Works Co. v. Orr was cited with approval and Chief Justice Agnew’s opinion was quoted in part as follows (p. 319): “ Duties arise out of circumstances. Hence, where the owner has reason to apprehend danger, owing to the peculiar situation of his property and its openness to accident, the rule will vary. The question then becomes one for a jury, to be determined upon all its facts of the probability of danger and the grossness of the act of imputed negligence.”

Duffy v. Sable Iron Works, 210 Pa. 326, was decided by this court about two and a half years ago and is the last expression of opinion by this court on the subject. The opinion was written by Mr. Justice Thompson who cites with approval and quotes from Hydraulic Works Co. v. Orr. In his opinion, alluding to some of the attacks made upon Hydraulic Works Co. v. Orr, he says (p. 331): “ It is difficult to understand why this case has become like a shuttlecock in battledore to be pitched up and down. The boy in that case was six years old and while playing in the street strolled into the alley, when the gates were open, and while there the platform fell upon him. The facts were submitted to the jury and the verdict was in favor of the plaintiff below.” Justice Thompson then quotes that part of the opinion in Schilling v. Abernethy, 112 Pa. 437 which approves Hydraulic Works Co. v. Orr.

It will, therefore, be observed that from 1877, the year in which Hydraulic Works Co. v. Orr was decided, until 1904 the principle announced in that case has been recognized and approved time and again by this court. It is claimed, however, in the majority opinion in the case at bar that certain decisions of this court have practically overruled Hydraulic Works Co. v. Orr. We will briefly refer to these cases. The first case is Gramlich v. Wurst, from which we have already made a quotation which shows that it sustains Hydraulic Works Co. v. Orr. Gillespie v. McGowan, 100 Pa. 144, is cited in the majority opinion as sustaining its position. There, the nearest paved highway ran 300 feet from the place of the accident and the nearest road was about eighty feet. There were houses about 300 feet off, but the built-up part of the city was nearly one-half mile distant. The facts, therefore, are not similar to those in Hydraulic Works Co. v. Orr or to those in the case at bar. It is important in considering the Gillespie case to note the fact that the opinion was written by Mr. Justice Paxson who had dissented in Hydraulic Works Co. v. Orr. It will be observed throughout his opinion that he reflects upon this latter case by the use of certain dicta which should have had no place in the decision. This was the first opportunity the learned justice had after dissenting in Hydraulic Works Co. v. Orr to get his views in a majority opinion. In Duffy v. Sable Iron Works, 210 Pa. 326, referring to a dictum of Justice Paxson in the Gillespie case, Justice Thompson speaking for this court says (p. 331) : “ A dictum occurs in Gillespie v. McGowan, 100 Pa. 144, that Hydraulic Works Co. v. Orr, 83 Pa. 332 was in direct conflict with Gramlich v. Wurst, 86 Pa. 74, but an examination of that case will show that the deductions leading to such dictum are not warranted and that the case rested upon well-defined and settled principles.”

In Rodgers v. Lees, 140 Pa. 475, Mr. Justice Green wrote the-opinion and Mr. Justice Clark dissented. The majority opinion in that case distinguishes Hydraulic Works Co. v. Orr. It is true that in his opinion Justice Green quotes some dicta from the opinion in Gillespie v. McGowan which reflects upon Hydraulic Works Co. v. Orr; but it should be noted that the dicta are the words of Mr. Justice Paxson who had dissented in the hydraulic works case, and also that they were obiter and not necessary to the decision of the Rodgers case. It will, therefore, be observed that the cases upon which the majority opinion relies to overthrow the doctrine announced in Hydraulic Works Co. v. Orr cannot be regarded as sustaining the position in view of the numerous cases which distinctly recognize and sustain the principle of that decision.

This is a turntable case and the principles announced in those cases have been recognized and followed not only by the supreme court of the United States, in which they originated, but by the courts of the great majority of the states of the Union as well as by those of England. It is true that New York, New Hampshire and possibly one or two other 'states reject the doctrine of the turntable cases. But this does not justify the majority of this court in overruling our own cases which specifically repudiate the New York doctrine and are in harmony with the adjudications of the supreme court of the United States and of the courts of the great majority of the several states of the Union. The earliest turntable case was Railroad Company v. Stout, 84 U. S. 657, decided in 1873. That was the unanimous judgment of the supreme court of the United States, and it was there held: “While it is the general rule in regard to an adult, that to entitle him to recover damages for an injury resulting from the fault or negligence of another, he must himself have been free from fault, such is not the rule in regard to an infant of tender years. The care and caution required of a child is according to his maturity and capacity only, and this is to be determined in each case by the circumstances of that case. ” It was also held : “ While a railway company is not bound to the same degree of care in regard to mere strangers who are even unlawfully upon its premises that it owes to passengers conveyed by it, it is not exempt from responsibility to such strangers for injuries arising from its negligence or from its tortious acts. ” In that case a judgment was sustained in favor of a child six years of age who was injured while playing with other children on a turntable located in an open space, about eighty rods from the company’s depot in a village of about 150 persons. The Stout case was followed in the supreme court of the United States by the Union Pacific Railway Company v. McDonald, 152 U. S. 262, decided in 1893, announcing and approving the same doctrine, although not a turntable case. Mr. Justice Harlan delivered an exhaustive opinion in which he reviews all the cases upon the subject and concludes with an affirmation of the doctrine announced in the Stout case. He notes the fact that Lynch v. Nurdin, 1 Q. B. 29, is cited with approval in nearly all of the cases. He says that it has been claimed that Lynch v. Nurdin was overruled in England; but he quotes from the opinion of Lord Chief Justice Cookburn in Clark v. Chambers, L. R. 3 Q. B. Div. 327 (1878) showing the contrary. He also quotes from the lord chief justice’s opinion as follows (p. 279): “ It appears to us that a man who leaves in a public place, along which persons, and amongst them children, have to pass, a dangerous machine which may be fatal to anyone who touches it, without any precaution against mischief, is not only guilty of negligence, but of negligence of a very reprehensible character, and not the less so, because the imprudent and unauthorized act of another may be necessary to realize the. mischief to which the unlawful act or negligence of the- defendant has given occasion.” The learned justice then says (p. 279): “We adhere to the principles announced in Railroad Company v. Stout, supra. Applied to the case now before us, they require us to hold that the defendant was guilty of negligence in leaving unguarded the slack pile made by it in the vicinity of its depot building. -. . . It knew that children were in the habit of frequenting that locality and playing around the shaft house in the immediate vicinity of the slack pit. The slightest regard for the safety of these children would have suggested that they were in danger from being so near the pit, beneath the surface of which was concealed (except when snow, wind, or rain prevailed) a mass of burning coals into which a child might accidently fall and be burned to death. Under all the circumstances the railroad company ought not to be heard to say that the plaintiff, a mere lad, moved by curiosity to see the mine, in the vicinity of the slack pit, was a trespasser, to whom it owed no duty, or for whose protection it was under no obligation to make provision. . . . What difference in reason we may observe in this case, is there between an express license to the children of this village to visit the defendant’s coal mine, in the vicinity of its slack pile, and an implied license, resulting from the habit of the defendant to permit them, without objection or warning, to do so at will, for purposes of curiosity or pleasure ? ”

The majority opinion in the present case says that the turntable cases have been disapproved in New York and in a few of the other states. This is true, but this court, on the other hand, affirmed Sioux City & Pacific Railroad Co. v. Stout, 84 U. S. 657, the original turntable case, by a unanimous judgment in Arnold v. Pennsylvania R. R. Co., 115 Pa. 135; and in that case it is said that the doctrine of the turntable cases was approved in Pennsylvania Co. v. Toomey, 91 Pa. 256; Pennsylvania Railroad Co. v. Lewis, 79 Pa. 33; Hydraulic Works Co. v. Orr, 83 Pa. 232; Phila. & Reading Railroad Co. v. Hummell, 44 Pa. 375; and Biddle v. Railway Co., 112 Pa. 551. Shall we now eliminate the principle from our own jurisprudence, overrule all our own cases, and follow the cases of three or four other states which we have expressly repudiated and which, as seen in 1 Shearman & Redfield on Negligence, sec. 73, have been condemned in England and are directly opposed to the current of American cases ?

Neither space nor time will permit me to refer to the numerous cases decided in the courts of last resort in the various states" of the Union which sustain the doctrine enunciated in Hydraulic Works Co. v. Orr and in the turntable cases. We will, however, refer to and quote from some text-books which without exception support the principles of the turntable cases. The principle underlying these cases is well stated in Ray’s Negligence of Imposed Duties, Personal, 33 : “If an act you are contemplating, right in itself, will likely cause some one to expose himself to danger which he does not anticipate, it is your duty to take care that such exposure does not prove injurious to him. In determining the question whether the act will induce such exposure, it is your duty to consider the motives and impulses that induce action by others who are likely to be influenced by your act. If men may be misled in their judgment by your act, you must take measures to warn them or to avoid injuring them by proper care. If children from their known childish instincts and curiosity may be led into danger, such care is due them also.” The same learned author also says (p. 28): “ The owner of any machine which he knows to be dangerous to children too young to know the danger, and of too immature judgment or discretion to control their natural instinct to amuse themselves with anything that may attract them as a plaything, and which he knows or ought to know may attract them, and who knows it is so placed that it does attract them to play with it — is under a duty, as to such children, to exercise the degree of care which an ordinarily prudent person would use to prevent its injuring them. Whoever, therefore, does anything in or immediately adjacent to a public street, park or locality where children may rightfully congregate and are accustomed so to do, calculated to attract children into danger, which they cannot appreciate, or are too untrained and inexperienced to resist, owes the imposed duty of protecting them against the' temptation he places before them, by suitably guarding the source of dangei’, or,' in case this cannot be done, by giving timely warning to their parents or guardians of the existence of the danger.”. In 1 Shearman & Redfield on Negligence (5th ed.), section 73, it is said : “It was held in some English cases, that if a child’s own act directly brings the injury.upon him, while the negligence of the defendant is only such as exposes the child to the possibility of injury, the latter cannot recover damages. But these decisions have been condemned in England, and are directly opposed to the current of American cases. The law has been settled to the contrary, in America, by the famous series of turntable cases, in which railroad companies were held liable by the federal supreme court, as well as by several state courts of last resort, for injuries suffered by little children, in consequence of their own acts in meddling with railroad turntables, which were left open to public access, unfastened and unguarded, although, of course, perfectly harmless, if let alone.” In a note to the section, will be found a reference to the states whose courts have sustained the doctrine of the text. In volume two of the same work, section 705, it is said : “The owner of land, where children are allowed or accustomed to play, particularly if it is unfenced, must use ordinary judgment and keep it in a safe condition, for they, being without judgment and likely to be drawn by childish curiosity into places of danger, are not to be classed with trespassers,, idlers and mere licensees.”

In the recent second edition of his exhaustive work on the Law of Negligence, Judge Thompson says (sec. 1024): “A well-grounded exception to the foregoing principles is that one who artificially brings or creates upon his own premises any dangerous thing W’hich from its nature has a tendency to attract the childish instincts of children to play with it, is bound, as a mere matter of social duty, to take such reasonable precautions as the circumstances admit of, to the end that they be protected from injury while so playing with it, or coming in its vicinity. Things of this kind frequently pass under the designation of attractive nuisances.” In section 1031, the learned author says: “In respect of the first class of cases, that of attractive nuisances, it is to be observed that it would be a barbarous rule of law that would make the owner of land liable for setting a trap thereon, baited with stinking meat, so that his neighbor’s dog, attracted by his natural instincts, might run into it and be killed ; and which would exempt him from liability for the consequences of leaving exposed and unguarded on his land a dangerous machine, so that his neighbor’s child, attracted to it and attempted to intermeddle with it by instincts equally strong might thereby be killed, or maimed for life.” This extract is quoted and endorsed by the supreme court of the United States in Union Pacific Railway Company v. McDonald, 152 U. S. 262.

The same principle is announced in other text-books: Wharton on Negligence (2d ed.), sections 112, 343 and 824 a; Beach on Contributory Negligence (3d ed.), section 204; Barrows on Negligence, p. 69; Bishop on Noncontract Law, section 854.

It is unnecessary to discuss the doctrine of the turntable cases. It has been thoroughly discussed by both the English and the American courts, and for the purposes of this case nothing need be added to the reasoning of those cases. It does not deprive the landowner of the use of his premises nor make him liable for their condition to one who enters without permission. All that it requires, and which humanity demands, is that he will not erect upon his premises a dangerous machine or structure, unguarded or unprotected, so near a public highway that children accustomed to frequent the highway will be allured or enticed into a danger which may result in their death. The doctrine now announced by the majority of this court will require the people in the densely populated parts of the city of Philadelphia to keep their children of tender age at all times in the house or in the charge of a nurse. The playground of such children must be in the house and not upon the public places, even the parks of the cities of the commonwealth. They cannot be permitted to go to the parks for recreation or play without being subjected to the dangers of the traps and pitfalls which a reckless and heartless owner of property may erect or construct. With a small expenditure of money, turntables and other attractive playthings for children may be guarded, and children at play may be protected and get the recreation which they require. Under the evidence in this case, a few dollars would have restored the fence surrounding the turntable, and the children of that populous neighborhood would have been protected from the dangers of the place. I cannot agree that the thousands of people who live in the city shall be required to keep their children in their houses or employ nurses, most of them illy able to bear the expense, to protect their children when such protection could be given by the owner of the premises with a small expenditure of money. It seems to me a sacrifice of humanity to the greed of commercialism.

The doctrine announced in the.majority opinion is unquestionably a departure from the settled law of this commonwealth. It is substantially the doctrine of the dissenting opinion in Duffy v. Sable Iron Works, 210 Pa. 326, filed less than three years ago. It is not in accord with our own cases or with those of the overwhelming majority of the other states; it is in conflict with the decisions of all the federal courts of this country, andht is condemned by the courts of England.

For the reasons stated, I would affirm the judgment of the court below.


author: Mr. Justice Elkin,

text:
    Davis v. Pennsylvania Railroad Company, Appellant.

      Negligence — Railroads—Fright of horse — Glare of tin.

    An owner of real estate has the right to use his property for every lawful purpose for which he may desire to use it, and is only required to exercise ordinary care in that use in order to relieve him from liability for damages on account of injuries incidentally resulting to a traveler on the highway.
    A railroad company cannot be convicted of negligence in removing bags of phosphate from a station building in the course of repairs, piling them on its own premises abutting on a public highway, and covering the bags with tin with the bright side up, so that the glare of sunlight from the tin frightens a horse and injures the person driving it.
    Mr. Justice Mestrezat dissents.
    Argued Feb. 13,190V.
    Appeal, No. 10, Jan. T., 190V, by defendant, from judgment of C. P. Chester Co., April T., 1906, No. 65, on verdict for plaintiff in case of Charles W. Davis v. Pennsylvania Railroad Company.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Butler, J.
    The facts are stated in the opinion of the Supreme Court.

      Verdict and. judgment for plaintiff for $2,500. Defendant appealed.

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

      John J. Pinkerton, for appellant.
    An owner of land, adjoining a, public road, has a right to deposit property wholly upon his own premises, twenty-five feet from the middle of the traveled way, and seven and one-half feet from the edge of the road, whether such property will cause horses passing along the highway to shy or not: Pittsburg Southern Railway Co. v. Taylor, 105 Pa. 306; Piolett v. Simmers, 106 Pa. 95.

      A. M. Holding, for appellee.
    An owner or occupant of property adjacent to a highway is so far restrained in the use of it that he may not accumulate thereon, near the highway, without liability for resulting damages, objects which from their nature are likely to frighten horses while passing along the highway: 1 Thompson on Negligence, sec. 1258; Lobenstein v. McGraw, 11 Kansas, 645; Cole v. Fisher, 11 Mass. 137; Moody v. Ward, 13 Mass. 299; Dimock v. Suffield, 30 Conn. 129; Penna. R. R. Co. v. Lippincott, 116 Pa. 472; Harvey v. Coal Co., 201 Pa. 63; Penna. R. R. Co. v. Barnett, 59 Pa. 259; Haines v. Barclay Twp., 181 Pa. 521; Elliott on Roads, 450; Fritsch v. Allegheny City, 91 Pa. 226; Burrell Twp. v. Uncapher, 117 Pa. 353; North Manheim Twp. v. Arnold, 119 Pa. 380; Nicholas v. Keeling, 21 Pa. Superior Ct. 181; 5 Thompson on Negligence, sec. 6078; Shipley v. Fifty Associates, 101 Mass. 251; Loubz v. Hafner, 1 Dev. (N. C.) 185.
    June 3, 1907:
   Opinion by

Mr. Justice Elkin,

In the consideration of this case, it must not be overlooked that no question involving the duties or liabilities of a common carrier arises. The appellant must be treated as an individual owner of land subject to no higher degree of care, nor liable in any other manner than a private owner of real estate abutting on the public highway. The rule established in this case will apply generally to the owners of real estate throughout the commonwealth.

The appellant was rebuilding its freight warehouse-at a certain station along its lines. To enable it to proceed with this work, it became necessary to temporarily remove the goods and merchandise deposited in the freight station from the inside of the building. On the evening of December 1,1905, five bags of phosphate were taken from the inside of the warehouse and temporarily placed outside on the premises of the defendant company. Three of the sacks were placed upon the ground, the remaining two on top of them, and as a protection against the rain and weather the five sacks thus placed were covered with a piece of old tin roofing, painted side down and bright side up'. It became necessary to remove the sacks of phosphate from the inside of the station because the old building was being torn down while the new warehouse was in course of construction. The sacks of phosphate were deposited upon the premises of the defendant company twenty-five feet distant from the middle of the public highway and seven and one-half feet from the side of the road. On the following morning, about sunrise, the appellee was driving along the public highway and when at a point about fifty feet away from the place where the phosphate was piled up, his horse shied, made a sudden plunge to the side of the road, where the wheels of his wagon struck some flagstones crossing the ditch, the singletree broke, he was thrown out and sustained the injuries for which damages are claimed in this action.

The negligence charged in the statement of claim was that the defendant had so negligently and carelessly placed the bags of phosphate, covered with the tin roofing, near the public highway as to frighten ordinarily gentle and well-trained horses. The case was tried in the court below, and is argued here on the theory that the negligence consisted in covering the bags of phosphate with tin roofing bright side up, so that the horse took fright at the glare or reflection of the rays of the sun across the highway, thus causing the injuries about which complaint is made. The burden is on the plaintiff in every such case to affirmatively prove the negligent acts complained of. In this case the only evidence offered on the question of negligence wras that which established the facts hereinbefore recited. Are these facts sufficient to convict the appellant of negligence ? What act was done in this case to justify a finding that ordinary care had not been exercised under the circumstances ? Appellant was the custodian of the phosphate and. owner of the tin roofing. It certainly cannot be seriously contended that the defendant company did not have the right to carrj'' the bags of phosphate from the inside of the building and deposit them temporarily on its own premises on the outside, or that for the purpose of protecting them from the rain it could not cover them with the tin roofing. Nor do we think that the glare of sunlight theory, on which appellee relies to sustain this action, is sound in principle. It burdens an owner of real estate with too high a degree of care, and is not sustained by either reason or authority. Such a rule would make it the duty of appellant in this case, and an owner of real estate in every case, to anticipate that during the time the particular thing made of tin was placed on its or his own premises a horse might be driven along the public road, while the sun was shining, and that the rays of sunlight might strike the tin object at such an angle as to reflect their light across the highway in a manner calculated to frighten horses. Such a degree of care is not required even as between master and servant, much less between parties where no such relation exists. It will not do to say that a tinsmith may not exhibit his wares on his own premises, or a blacksmith may not store farm utensils, machinery or other things brought to him for repair, around his forge; or that a merchant may not display his goods on his. own property; or that a farmer may not pile sacks of fertilizer or grain in his own fields, and, if need be, cover them with a tin roof, -without being mulcted in damages because a horse, well broken or otherwise, happens to shy at them while being driven on the highway nearby. These are the ordinary risks in every day life which must be assumed by the individual who drives his horse on the public road. If the horse shies at objects, not extraordinary and frightful in construction or operation, placed on the premises in the usual course of business of the abutting property owner, and injuries result to a traveler on the highway, they are damnum absque injuria. It seems to be conceded by the learned counsel for appellee that the only ground upon which a recovery can be sustained in this case is that appellant failed to exercise ordinary care because the tin roofing was placed on the sacks bright side up. Our cases would be examined in vain for authority to support this position. We cannot believe there is authority in any jurisdiction for holding a person guilty of negligence and liable in damages because he placed on his own premises a piece of tin roofing down side up instead of down side down. Suppose both sides of the tin roofing were bright, neither side painted, could it then be said to be negligence because it was used as a covering for the bags ? Certainly not. The appellant owed the appellee no duty except that as an abutting property owner it could not so recklessly, or wantonly or negligently make use of its property as to interfere with his rights on the highway. ' Every case of this character is based on the theory that the defendant has been negligent in the performance of a duty owed the complaining party. If no duty is owed, there can be no negligence in failing to perform it; or, if the alleged duty sets up a higher standard of care than the law requires, failure to observe it will not make the party so failing answerable in damages. A farmer preparing his fields for the sowing certainly has the right to pile a few sacks of grain in the fence corner without being liable for damages because a horse driven along the highway shies at them. The principle is very Avell stated by Mr. Justice Green in Piolett v. Simmers, 106 Pa. 95, Avherein it was said : “ If a farmer may not have a barrel of cider, a bag of potatoes, a horse power, a AvheelbarroAV or a Avagon standing on his own premises by the side of a highway except at the risk of having his estate swept aAvay in an action for-damages occasioned by the fright of an unruly horse, the vocation of agriculture will become perilous indeed.” The principle is freely conceded that every-person must so use his own property as not to injure others, and if he in a reckless, wanton and Avillfully negligent manner makes such use of his property as to injure others he may be held liable in damages. It is equally true, however, that an owner of real estate has the right to use his property for every lawful purpose for which he may desire to use it, and is only required to exercise ordinary care in that use in order to relieve him from liability for damages on account of injuries incidentally resulting to a traveler on the highway.

Judgment reversed and is here entered for defendant.

Mestrezat, J., dissents.


author: Mr. Justice Brown,

text:
    Lee v. Hamilton, Appellant.

      Trusts and trustees — Declaration of trust — Consideration—Evidence.
    Where a sister holds title to a farm by an absolute deed from her parents in consideration of supporting them during their lifetime, and she, during the lifetime of the surviving parent, seeks financial aid from one of her two brothers, and in consideration of such aid executes a writing by which she declares that she holds in trust one-third of the farm for one brother, and another third for the second brother, and in the same writing covenants to convey such thirds upon the death of the surviving parent, the writing is not an agreement to sell, but is a valid declaration of trust which may be enforced by ejectment for the two-thirds interest after the death of the surviving parent.
    Argued Feb. 26,1907.
    Appeal, No. 306, Jan. T., 1906, by defendant, from judgment of C. P. Lackawanna Co., Sept. T., 1904, No. 623, on verdict for plaintiff in case of Helen A. Lee v. Caroline Hamilton.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Ejectment for an undivided interest in a farm in Scott township. Before Edwards, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Yerdict and judgment for plaintiff. Defendant appealed.

      Errors assigned among others, were (3) in admitting in evidence the paper dated November 21, 1887; and (1) in refusing binding instructions for defendant.

      Alton A. Vosburg, with him Oharles W. Dawson, for appellant.
    The mere refusal of a vendor to convey, where the contract is parol, is not sufficient to justify anything more than a recovery of the money actually paid and the expenses incurred on the faith of the contract, and in such case the vendee is directed to his common-law action of the assumpsit for breach of contract: Rineer v. Collins, 156 Pa. 342; Sausser v. Steinmetz, 88 Pa. 324; McClowry v. Croghan’s Adm’r, 31 Pa. 22; Wilson v. Clarke, 1 W. & S. 554; Harris v. Harris, 70 Pa. 170; Thompson v. Sheplar, 72 Pa. 160; McCafferty v. Griswold, 99 Pa. 270; Allison v. Montgomery, 107 Pa. 455; Bispham’s Equity, secs. 361, 364.
    When the price or consideration is not fixed or expressed in the contract, the same is within the statute, and will not be specifically enforced: Pray v. Clark, 113 Mass. 283; Holliday v. Hubbard, 45 Minn. 333 (47 N. W. Repr. 1134).

      Olarence Ballentine and Everett Warren, of Willard, Warren <& Knapp, for appellee,
    cited.: Bacon’s App., 57 Pa. 504; Rife v. Geyer, 59 Pa. 393; Wiser v. Allen, 92 Pa. 317; Cressman’s App., 42 Pa. 147.
    June 3, 1907:
   Opinion by

Mr. Justice Brown,

On July 10, 1882, Martin Lee and Jemima, his wife, conveyed to their daughter, Caroline Hamilton (then Caroline Lindsay), the farm in dispute. In consideration of such conveyance she agreed to maintain her parents as long as they lived. Her mother died in November, 1887. On the day after her death an execution was issued on a judgment against Martín Lee, and under it all the personal prpperty on the farm was seized and advertised for sale. The appellant had two brothers, Charles E. and John Lee. She asked Charles to assist her in saving the personal property from sale by the sheriff. An interview was had between them on November 21, 1887, at the office of Judge Newcomb, now of the Lackawanna common pleas, wTho was then in active practice. The brother was disinclined to help her, stating that if the property seized belonged to their mother, as she then claimed, he had but little interest in it, and that as she had title to the farm, she would have to take care of the personal property on it as best she could. To this she replied that he had as much interest in the farm as she, adding, according to Judge Newcomb’s testimony, “You know that I have always intended that you and John should both have your equal share after the old folks are dead.” After some further discussion Charles agreed that, if she would put in writing what she had said about holding the property until their parents were dead, when he and John should each have an equal third with her, he would help her. Thereupon she executed the paper upon which the appellee bases her title as his widow and devisee. He died in 1900. In 1893 he 'bought out the interest of John for $1,000, and the claim of the appellee is, therefore, for two-thirds of the property.

The paper executed by the appellant on November 21,1887, after reciting the conveyance to her by her parents, contains the following declaration: “Now, know ye, that I, the said Caroline Lindsay, do by these presents make known, admit and declare, that said premises were so conveyed to me and that I now hold one undivided third part of the same in trust only for the sole use and benefit of Charles E. Lee, his heirs and assigns, and one other undivided third part thereof in trust only for the sole use and benefit of John Lee, his heirs and assigns, both of said cestui que trustent being my brothers, and that I have no beneficial interest in either of said purparts of said premises. And I do for myself, my heirs, executors and administrators covenant and agree, to and with the said Charles E. Lee and John Lee, and each of them, and each of their executors, administrators, heirs and assigns that I or my heirs shall and will convey the said purparts upon the death of my father Martin Lee to Charles Lee and John Lee, their heirs and assigns, as they may direct.” After the execution and delivery of this paper to - Charles, he carried out his agreement to save the personal property for his sister by buying it in for her at the sheriff’s sale and leaving it on the premises. He subsequently paid off a judgment against the farm for $3,000, which was a lien upon it at the time the appellant acquired title. She and her father lived on the premises together until the latter’s death in 1892, and Charles permitted her to remain in possession of it during his lifetime. According to the testimony, she offered to sell her third to him on several occasions, but he was unwilling to buy it at the price she asked for it. After his death she claimed title to the whole farm, and this action was brought, resulting in a verdict in favor of the plaintiff.

One of the objections made on the trial by the defendant to the admission of the paper executed by her on November 21, 1887, was that at that time she was a married woman and her husband had not joined in it. There was proof that Alexander Lindsay, to whom she was married August 3, 1865, deserted her a very short time after their marriage, her own testimony being that he lived with her but six weeks. The proof of the husband’s desertion was most convincing, but the question was submitted to the jury under instructions that, if they found he had deserted her, the paper was valid under the Act of May 4,1855, P. L. 430. Another objection was that it had been procured from her by duress resulting from threats of physical violence by her brothers. This question was also submitted to the jury, but upon evidence of shadowy character. On this appeal neither of these objections is made, and we need not, therefore, consider them. The contention of the appellant is that the instrument is but a contract for the sale of real estate, and, as the appellee introduced parol evidence to show its terms and the consideration for it, it became a parol contract, not enforcible under the statute of frauds.

"When Charles Lee was importuned by his sister to come to her relief, and he was unwilling to do so for the reason given by him, he did not finally agree to help her because she said she intended to give two-thirds of the farm to him and his brother upon the death of their parents, or in consideration of any agreement by her to convey such interest to them, but upon her agreement to declare, in writing, that she held and would hold title to two-thirds of the farm in trust for them, and this she then did in consideration of his agreement to help her, which he carried out. The paper cannot be regarded as a valid declaration of an existing trust that had been created by the parents on July 10, 1882, for such a declaration, made in November, 1887 — more than five years afterwards — would be oE no validity under the Act of April 22, 1856, P. L. 532; but in November, 1887, the appellant, as the sole and absolute owner of the property, was competent to create and declare a trust in it for her brothers, and she did so for a valuable consideration moving her. She made no agreement to sell to them, nor was her agreement merely to execute to each of them at some future time a deed for an interest in the property. It was a solemn declaration that then, on November 21, 1887, in consideration of the agreement of her brother Charles to help her, she held, and would continue to hold, title to two-thirds of the farm in trust as trustee for her two brothers. In giving this effect to her words, which is claimed for them by the appellee, we but attribute to them their literal meaning, and in doing so are carrying out the clearly expressed intention of the appellant at the time she used them. The learned judge below, in his opinion overruling the motion for a new trial, correctly held that “ the instrument in question creates a trust as of its date, based upon a sufficient and legal consideration ; ” and this ejectment was the proper remedy to enforce appellee’s rights as the owner of two-thirds of the property, which vested in her husband and his brother under the appellant’s declaration of trust: Bacon’s Appeal, 57 Pa. 504; Rife v. Geyer, 59 Pa. 393.

Judgment affirmed.