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

      Master and servant — Trespass—Railroads—Passenger—Assault by trainmen.

    1. For a willful or intentional trespass by an employee outside of the line of his duty under his employment, the employer is not responsible even though it be committed while the servant was in the course of his employment; but in the latter case its willful and separate character must appear.
    2. Where two passengers have alighted from a train, and while proceeding along the station platform are pursued by the baggage master and the conductor of the train which they left, and wantonly and maliciously assaulted, they cannot recover damages' from the railroad company for the injuries sustained, inasmuch as the acts of the trainmen were outside of the scope and the range of their employment.
    Argued April 14, 1909.
    Appeal, No. 230, April T., 1908, by defendant, from judgment of O. P. No. 1, Allegheny Co., June Term, 1904, No. 975, on verdict for plaintiff in case of Theodore F. Greb v. Pennsylvania Railroad Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Reversed.
    Trespass to recover for personal injuries. Before Brown, P. J.
    The facts are stated in the opinion of the Superior Court.
    The court charged in part as follows:
    [The plaintiffs in this action allege that while leaving the train and passing along the railway platform an unprovoked assault was made upon them by the conductors or the agents of the railway company,
    If that be the fact, namely, an unprovoked assault, they are entitled to recover damages for the assault and injury, the pain and suffering, and in addition, at your discretion, punitive or punishing damages.] [1]
    [So you come down to the turning point in these cases. It is alleged by the plaintiffs — and of course that is undisputed —that they were passengers on this railway; that this trouble occurred while leaving the train and passing along the platform. That was part of the company property, just as much as though it was the car in which they had been riding. A passenger had the right to walk along the platform to get away from the company’s property. If under those circumstances these plaintiffs did. not provoke this assault or injury by any misconduct on their own part, and the thing resulted solely from the act of the railway company’s agents, then the plaintiffs may recover damages.] [2]
    [If this was an unprovoked assault by the agents of the defendant, without any misconduct on the part of the plaintiffs themselves, they would be entitled to recover.] [3]
    [If the weight of the testimony satisfies you that there was no misconduct on the part of the plaintiffs, that they did not bring about the assault, did not take any part in it, then they are entitled to recover. The elements of damage are such as have been suggested to you by counsel in his argument to the jury.] [4]
    Defendant presented this point;

      1. Under the pleadings and all the evidence, the verdict must be for the defendant. Answer: Refused. [5]
    Verdict and judgment for plaintiff for- $500. Defendant appealed.

      Errors assigned were (1-5) above instructions, quoting them.

      James F. Miller, with him Patterson, Sterrett & Acheson, for appellant.
    The testimony of the plaintiffs' witnesses shows that the baggage man and the conductor, when they committed upon the plaintiffs the assault alleged, were acting outside of the scope of their authority: Brennan v. Merchant, 205 Pa. 258; McFarlan v. R. R. Co., 199 Pa. 408; Pass. Ry. Co. v. Donahue, 70 Pa. 119.
    A common carrier is not liable when its servants (in these cases the baggage man and conductor) acting outsidé of the scope of their authority, and for purposes of their own assault a person who has safely alighted from a train and is proceeding along the station platform to the street: Artherholt v. Motor Co., 27 Pa. Superior Ct. 141; Dodge v. Steamship Co., 148 Mass. 207 (19 N. E. Repr. 373); Kennedy v. R. R. Co., 32 Pa. Superior Ct. 623.

      James M. Clark, for appellee.
    A very high degree of care is required of a common carrier as long as the passenger is on the train, and at what juncture this high degree of care is modified is of the utmost importance in determining these cases. It has been held that the railroad company is liable for-a willful or intentional trespass by its employee, on the passenger who had not yet entered the train, but was on the platform about to so enter: McFarlan v. Penna. R. R. Co., 199 Pa. 408.
    In support of our contention that the relation of the carrier and passenger had not ceased at the time the assault complained of in these cases was committed, we cite the cases of Powell v. R. R. Co., 220 Pa. 638; Keefe v. R. R. Co., 142 Mass. 251 (7 N. E. Repr. 874); Brennan v. Merchant & Co., 205 Pa. 258; Rounds v. R. R. Co., 64 N. Y. 129.
    When a passenger hás alighted from a train the relation of carrier and passenger remains until he has left the premises of the carrier: Hall v. R. R. Co., 36 Pa. Superior Ct. 556; Guinney v. Hand, 153 Pa. 404; Brennan v. Merchant & Co., 205 Pa. 258.
    October 11, 1909;
    Whether the negligent act was within the scope of the servant’s employment is a question of fact for the jury: Guinney v. Hand, 153 Pa. 404; Laird v. Traction Co., 166 Pa. 4; Artherholt v. Motor Co., 27 Pa. Superior Ct. 141; Art Syndicate v. Ins. Co., 213 Pa. 506.
   Opinion by

Rice, P. J.,

This and the succeeding case are appeals from judgments in favor of Theodore F. Greb and Frank J. Greb. The cases were tried together. The plaintiffs in company with their brother Philip were passengers on the defendant’s train from Swissvale to certain stations in Pittsburg. On reaching Wilkinsburg, the next station after Swissvale, there was some trouble over a ticket which Philip presented to the conductor, the result of which was that Philip was put off the train against the protests and objections of the plaintiffs. The train then proceeded on its way, and when it reached the station to which Theodore was destined he went out of the front door of the car to alight. He testified that as he did so C. W. Meek, the baggage master of the train, who was acting also as brakeman, and F. J. Arnold, the conductor, were standing on the platform of the car, and that the former accosted him in these words, “Do you want to take anything out of me?” to which he replied, “No, I ain’t looking for a fight.” He then alighted from the car and walked back, across one track, to the station platform. This led to the stairway going down to the street. He testified that Meek followed him and that when they were on the station platform— at a distance described by him as a car’s length from the steps of the car from which he had alighted, and by another witness as thirty or forty feet from the train — Meek again accosted him with the words, “Here you son of a bitch, if you want to take anything out of me here I am;” to which Theodore replied, “No, I ain’t looking for trouble.” He says that as he then started to walk away Meek struck him a blow which knocked him down and rendered him unconscious, and that he remembered no more of the affair. Frank J. Greb, the plaintiff in the other case, testified that as he stepped out onto the rear platform of the same car he saw Meek and Theodore “tussling” on the station platform, that he went over and may have grabbed Meek for-the purpose of getting them apart, and that Arnold, the conductor, came over immediately and struck him, Frank, two or three times upon his head, inflicting scalp wounds. We need not go into greater detail in describing the injuries the plaintiffs claimed to have sustained. Nor need we show wherein the version given by the defendant’s witnesses of the affair and of its inducing cause differs irreconcilably in material particulars from those given by the plaintiffs. The verdict of the jury interpreted in the light of the instructions given by the court implies a finding, which for present purposes must be accepted as conclusive, that neither of the plaintiffs provoked the assault by any misconduct on his part. But it must also be borne in mind that according to the plaintiff’s own showing the assault did not occur on the train, or while the plaintiff was in the act of entering or alighting from it, but upon the station platform, and that there is no evidence that either of these trainmen, as employees of the defendant, had any control over that part of the railroad premises, or had any duty to perform in respect of the passengers who had left the train at that place.

\A master is ordinarily liable to answer in a civil suit for the tortious or wrongful acts of his servants, if those acts are done in the course of his employment in his master’s service. In Brennan v. Merchant & Co., 205 Pa. 258, this statement of the general rule as given by Mr. Justice Andrews in Rounds v. Delaware & Hudson R. R. Co., 64 N. Y. 129, was quoted with approval: “It is in general sufficient to make the master responsible that he gave to the servant an authority, or made it his duty, to act in respect to the business in which he was engaged when the wrong was committed, and that the act complained of was done in the course of his employment. The master in that case will be deemed to have consented to and authorized the act of the servant, and he will not be excused from liability, although the servant abused his authority, or was reckless in the performance of his- duty, or inflicted an unnecessary injury in executing his master’s orders. The master who puts the servant in a place of trust or responsibility,, and commits to him the management of his business or the care of his property, is justly held responsible when the servant, through lack of judgment or discretion, or from infirmity of temper, or under the influence of passion aroused by the circumstances and the occasion, goes beyond the strict line of his duty or authority and inflicts an unjustifiable injury upon another.” \jSTot every deviation of the servant from the strict execution of his duty, nor every excessive use of force therein, nor every disregard of particular instructions will be such an interruption of the course of employment as to determine or suspend responsibility. / “But, where there is not merely deviation, but a total departure from the course of the master’s business, so that the servant may be said to be 'on a frolic of his own’ the master is no longer answerable for the servant’s conduct:” Pollock on Torts (Bl. ed.), *74. “For a willful or intentional trespass by an employee outside of the line of his duty under his employment it is settled that the employer is not responsible, even though it be committed while the servant is in the course of his employment. But in the latter case, its willful and separate character must appear:” McFarlan v. Pennsylvania R. R. Co., 199 Pa. 408. The distinction in principle between the two classes of cases is well illustrated for present purposes by comparing McFarlan v. Pennsylvania R. R. Co. and Rudgeair v. Reading Traction Co., 180 Pa. 333. In the former the railroad company was held liable for an assault by the conductor upon an intending passenger in the act of entering the car, because he was within the authority and control of the conductor in the course of the latter’s employment. In the other case a motorman who left his post of duty on his car and assaulted a teamster driving on the track ahead, who refused to turn off, was held not to be acting within the scope of his employment, and therefore the company was not liable. We refer also to this illustration in 2 Cooley on Torts (3d ed.), 1020: “So if a conductor of a train of cars leaves his train to beat a personal enemy, or from mere wantonness to inflict an injury, the difference between that and where a passenger is ejected from the cars is obvious. The one is the individual trespass of the conductor he has stepped aside from his employment to commit; the other is a trespass committed in the course of the employment in the execution of the orders the master has given, and apparently has the sanction of the master and contemplates the furtherance of his interests.” Leaving out of view the fact that the plaintiff in the case at bar was upon the defendant's premises and still had rights as a passenger (Powell v. Phila. & Reading R. R. Co., 220 Pa. 638; Hall v. Bessemer & Lake Erie R. R. Co., 36 Pa. Superior Ct. 556) and having regard only to the rule applicable generally to the question of the liability of a master for the tortious acts of his servants, it is quite clear that the plaintiff was not entitled to the instructions which are embraced in the first four assignments of error. This conclusion is supported by the decisions or the principles enunciated in other Pennsylvania cases,' amongst which may be cited Pennsylvania Company v. Toomey, 91 Pa. 256; Scanlon v. Suter, 158 Pa. 275; McAnally v. Pennsylvania R. R. Co., 194 Pa. 464; Shay v. American Iron & Steel Co., 218 Pa. 172; Murphey v. Phila. Rap. Tran. Co., 30 Pa. Superior Ct. 87.

But in the case of an intentional or unprovoked assault by a servant of a common carrier upon a passenger the legal duties, which, by reason of the relation between them, are imposed upon the former, must be taken into consideration in determining whether he is liable; for it is obvious that he may be liable in such a case where he would not be hable for a similar assault committed by the same servant, at the same place and under the same circumstances upon a stranger. As to passengers being transported there is an implied contract on the part .of the carrier, and a legal duty, to exercise the “utmost degree of diligence and care” for their safety, and it is settled that this duty includes the exertion of such power as conductors and the trainmen under them have to protect passengers from violence of other persons: Pittsburg, etc., Ry. Co. v. Hinds, 53 Pa. Pittsburg, etc., R. R. Co., v. Pillow, 76 Pa. 510; Duggan v. B. & O. R. R. Co., 159 Pa. 248. Following this principle to its gitimate conclusion we said in Artherholt v. Erie Elect. Motor Co., 27 Pa. Superior Ct. 141, “ If the duty of the carrier to afford protection, which he is to discharge through his servants, extends to the prevention of injury from the acts of third persons which it is practicable for the servant in charge to prevent, it is difficult to see why it should be held not to include protection against the active participation of the servant himself in an unprovoked and wanton assault upon a passenger, committed while he is being transported, and while the servant is engaged in executing the contract of carriage. According to the great weight of authority the carrier is responsible for such misconduct of the servant to whom it has intrusted the safe carriage of passengers.” In some 'of the cases outside this common"■wbalth the liability of the carrier in such case is put upon the ground that as against the violence and assaults of his servants the passenger, while being transported or when entering or alighting from the carrier’s vehicle, has the right to claim “absolute protection.” Prominent amongst these cases are Haver v. Central R. R. of N. J., 62 N. J. L. 282; Hayne v. Union St. Ry. Co., 189 Mass. 551; Birmingham Ry. & Elect. Co. v. Baird, 130 Ala. 334. There is great force in the reasoning by which this proposition has been supported, but as it does not present the precise question we have to decide it is unnecessary to consider whether, as respects a passenger while being transported and when entering or alighting from the carrier’s vehicle, it is invariably applicable regardless of the nature and scope of the servant’s duties and authority. It is to be observed, further, that this is not the case of a passenger when purchasing his ticket being assaulted by the ticket agent, or when checking or applying for his baggage being assaulted by the servant of the carrier connected with that part of his business, or when passing along the station platform on his way to or from the train being assaulted by the servants the carrier has employed to oversee the platform and enforce its regulations regarding their use. There would be reason for holding that in each of these instances, and similar ones that might be cited, there was a breach of a duty which rested on. the carrier to protect the passenger against the assaults of its servants whilst engaged in the discharge of their assigned and appropriate duties, even though such assaults were unauthorized by the carrier and were prompted by the vindictive feelings of the servant toward the passenger. But the proposition we have to consider is a much broader one and it amounts to this: It is the “absolute duty” of the carrier to protect the passenger against the assaults and violence of its servants, not only while the passenger is being transported, but so long as the relation exists, therefore if the passenger is anywhere on the carrier’s premises legitimately as an intending or departing passenger, the range or scope of employment of the servant who committs an unprovoked, unlawful and malicious assault upon him is immaterial in determining as to the carrier’s liability. That this is not an exaggerated statement of the legal proposition that must be adopted in order to sustain the rulings of the learned trial judge is apparent when it is remembered that the baggage man and acting brakeman of the train left his post of duty at the train and assaulted the plaintiff after the latter had crossed an intervening track, and was passing along the station platform. If the brakeman had followed the plaintiff into the waiting room of the station, if there was one, and there committed the assault, or had vindictively assaulted an intending passenger the moment he entered the defendant’s station, or if, to use the illustration suggested by appellant’s counsel, the assault on the plaintiff on the station platform had been made by a track walker, who, after the train had left, had deserted his duty of inspecting the tracks, the case would not be different in principle. While general expressions may be found in cases outside this commonwealth, which considered apart from the context and the facts of the case may seem to give support to the proposition as above stated, yet a careful examination will show that in most of these cases some other element entered into the decision. At any rate no Pennsylvania case that has been cited, or that we have been able to find after diligent investigation, goes to that extreme. McFarlan v. Penna. R. R. Co., 199 Pa. 408, is not such a case. There the decision was put upon the ground, and no other was suggested by the court as tenable, that the assault upon the intending passenger when in the act of entering the car was committed by an employee whose authority and duty extended to the orderly management of .the passengers entering and leaving the car, and therefore what he did was in the course of his employment. Nor is Artherholt v. Erie Elect. Motor Co., 27 Pa. Superior Ct. 141, such a case. There, it is true, the conductor was acting in violation of a rule of the company requiring conductors to treat passengers civilly, but as he was the employee to whom the company had intrusted the safe carriage of the plaintiff, the company owed to. him the duty to protect him against the conductor’s unprovoked and wanton assault committed while the plaintiff was being transported, and the conductor was engaged in executing the contract of carriage. The other case cited is Kennedy v. Penna. R. R. Co., 32 Pa. Superior Ct. 623. But if that case is a pertinent authority upon any controverted question involved in this case, it is for the proposition that reasonable, rather than the utmost, is the degree of care required of a railroad company for the protection of intending or departing passengers in the rooms and platforms provided for them. And this distinction as to the measure of care required when the passenger is at such place and when he is being transported or is entering or alighting from the car is generally recognized, and is founded on good reasons. In Dodge v. Boston, etc., Steamship Co., 148 Mass. 207, it is said: “It has sometimes been said that a passenger at the end of his journey retains the same relation to the carrier until he has left the carrier’s premises. But there are other cases which indicate that the contract of carriage is performed when the passenger at the end of his journey has reached a safe and proper place, where persons seeking to become passengers are regularly received, and passengers are regularly discharged, and that the degree of care to which he is then entitled is less than during the continuance of his contract, as a carrier of goods is held to a liability less - strict after they have reached their destination and been put in a freight house than while they are in transit.” See also 26 Am. & Eng. Enc. of Law (2d ed.), 608, 509; 6 Cyc. of L. & Pro., 605. In Hutchinson on Carriers, sec. 1093, we find this statement of the rule applicable to cases where the tortious acts complained of have been committed by the carrier’s servants before the relation of carrier and passenger has commenced, or after it has ceased or while the passenger remains as such on the station grounds: “Where the relation has not commenced, or where it has ceased there can, of course, be no question but that the ordinary application of the rule respondeat superior should apply. And the same result has been reached by the majority of the courts in those cases where the relation of carrier and passenger exists, but the passenger is either waiting for or has just left his train and is still upon the station premises. The reason for this latter view is that, while on the station premises, the passenger is supposed to be able to care for himself in some degree, and the carrier is not obliged to exercise that extraordinary degree of care for his safety that is required while on the train. It is but just, therefore, that the carrier should be held hable for the tortious acts of its servants done in the course of their employment about the station grounds, but not for their malicious and unauthorized acts outside the scope of their employment;” particularly, we add, if such malicious and unauthorized acts are committed upon the station platform or in the station building by an employee whose range of employment is elsewhere and who leaves his post of duty and comes to the platform on the building for the sole pur,pose of satisfying a personal grudge.

In many instances, whether the negligent or tortious act of a servant was within the scope of his employment is a question of fact for the jury: Guinney v. Hand, 153 Pa. 404. But, of course, if the facts and inferences to be drawn from them are not in dispute, the court may determine the question as matter of law: Brennan v. Merchant & Co., 205 Pa. 258; Murphey v. Phila. Traction Co., 30 Pa. Superior Ct. 87. This is certainly not a case where the court was warranted in declaring as matter of law that the plaintiff was entitled to recover if the assault was unprovoked by misconduct on his part. In our opinion it is a case where the court should have held as matter of law that according to the plaintiff’s own testimony as to the place of the assault, the circumstances under which it was committed, and the scope of employment of the employee by whom it was committed, the defendant was not liable.

The judgment is reversed and judgment is now entered for the defendant non obstante veredicto.


source: Caselaw Access Project

author: Rice, P. J.,

license: Public Domain

text:
    Greb v. Pennsylvania Railroad Company, Appellant
    (No. 2).
    October 11, 1809 :
   Opinion by

Rice, P. J.,

For the reasons given in the case of Theodore F. Greb against the same defendant, ante, p. 61, the judgment is reversed and judgment is now entered for the defendant non obstante veredicto.


text:
    Reese’s Estate.

      Attorney at law — Professional conduct — Interference with order of support — Assignment of interest in estate.

    An attorney at law with knowledge of an order of support against his client and of arrearages of payment thereon, loaned his client money from time to time without attempting to control its application, and subsequently took an assignment of the latter’s interest in an estate in payment of or to secure payment of the indebtedness thus incurred. Held, that the acts of the attorney did not amount to a breach of professional duty, or an unlawful interference with the execution of the order of support, or warrant an inference of fraud on his part to defeat the claim of client’s wife.
    Argued April 15, 1909.
    Appeal, No. 54, April T., 1909, by E. R. Edmundson, from decree of O. C. Allegheny Co., April T., 1908, No. 121, dismissing exceptions to adjudication in Estate of William R. Reese, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Reversed.
    Exceptions to adjudication.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in dismissing exceptions to adjudication.

      L. O. Barton, with him E. R. Edmundson, for appellant.

      John D. Watson, for appellee.

      October 11, 1909:
   Opinion by

Rice, P. J.,

In August, 1907, Henry H. Reese, being then under an order of the court of quarter sessions in desertion and support proceedings directing him to pay to his wife $3.00 per week for her maintenance, and being also largely in arrear, made a written assignment under seal to the appellant of all his right, title, interest and claim in the estate of the decedent, his brother, and by the same instrument directed the administrator of the estate to pay his full distributive share under the administrator’s first and subsequent accounts to the appellant. The ap.pellant’s testimony as to the consideration is to the effect, and is uncontradicted, that prior to the date of the assignment he had made successive advancements to the assignor to the amount of two judgment notes, one for $200 and the other for $250, which he entered of record before the first administration account was filed. Upon distribution of the balance shown by that account the sum of $121.43 was awarded to the appellant out of the assignor’s distributive share ($309.43) the balance having been taken credit for by the administrator as paid to Henry prior to the filing of the account. Henry’s distributive share of the balance shown by the final administration account, upon distribution of which the present dispute arose, is $205.96. It is thus seen that, if the appellant’s claim under the assignment of August 7,1907, is allowed to prevail over the claim of the appellee under the order of maintenance, the judgment entered thereon in the common pleas in April, 1908, in accordance with the provisions of the Act of May 8, 1901, P. L. 143, and the attachment execution issued on that judgment and served on the administrator in the same month, the whole amount ■received by the appellant under the assignment will be less than the amount of the debt for which it was given. Therefore, any inference of fraud on the ground of inadequacy of . consideration would be wholly unwarranted.

After speaking of the advancements above mentioned, the appellant testified that he made “subsequent advancements and included them in a mortgage amounting to $800,” on Henry’s interest in decedent’s real estate, which as a whole was worth between $8,000 and $9,000, and that this interest was levied on and sold on that mortgage. The evidence does not show who became the purchaser or the amount realized, and the natural interpretation of the testimony above referred to, which is all there is relative to the mortgage and its connection with the present litigation, is that it was given for the subsequent advancements, and not for all the advancements. But, even if it be assumed, which is by no means clear, that the assignment was not absolute but was taken simply as collateral security for the first advancements, also that the mortgage was taken as additional security for these as well as the subsequent advancements, still, in the absence of evidence that the appellant became the purchaser at the sale upon the mortgage, or of the amount realized, or of fraud in the conduct of the sale in which the appellant participated, a finding that the debt for which the assignment was given was discharged by the sale of the real estate would be without support.

“The'bar has great liberty and high privileges in the assertion of their clients’ rights as they view them, but on the other hand they have equal obligations as officers in the administration of justice, and no duty is more fundamental, more unremitting or more imperative than that of respectful subordination to the court:” Scouten’s Appeal, 186 Pa. 270. This principle is referred to by the learned orphans’ court as applicable to the present case, and its decree is based largely, if not altogether, upon a supposed breach on the part of the appellant of his professional duty. Indeed, the learned judge says: “A stranger acting in good faith might no doubt acquire title to his (Henry’s) inheritance for value, notwithstanding the existence of the order of maintenance, but Edmundson stood in professional relation, owing a duty of submission to the judgment of the court, Scouten’s Appeal, 186 Pa. 270, and has done everything in his power to thwart the efficiency of that judgment. His declared purpose was to benefit his client alone in making his advancements, and, therefore, to defeat the order of maintenance.” In another part of the opinion it is said, “His conduct was a plain breach of professional duty,” and further on, “Edmundson’s interference with the execution of the order of maintenance was an interference with the administration of justice of which he ought not to be permitted to take advantage/’ and in conclusion, “It follows that the assignment offered in this case was part of a scheme to defeat Mrs. Reese’s claim for maintenance and must fail.” These extended excerpts from the vigorous opinion of the learned president judge of the orphans’ court showing plainly the grounds of decision necessitate a careful scrutiny of the evidence concerning the question as to the professional relation between the appellant and Reese at the time of the advancements and the assignment, and also concerning the acts which are supposed to constitute the interference with the administration of justice. It is to be borne in mind that the order of maintenance was made in 1904, but was not entered as a judgment in the common pleas until 1908, which was several months after the date of the assignment. The testimony both of the appellee and the appellant is that J. F. Edmundson, the appellant's father, appeared as Reese’s attorney in the desertion and support proceedings in the quarter sessions. While there is evidence that they occupied the same office, we discover none to sustain a finding that they were partners. True, the appellee gave an affirmative answer to her counsel's very leading and suggestive question, “Then young Mr. Edmund-son acted as attorney when you went to the office to speak about your husband, and John F. was the attorney in court?” But when her testimony is examined to ascertain upon what facts she based this conclusion it is found that they are, first, that when she went to the office to ask about her husband the appellant answered her questions, but what they were is not stated; second, that on one occasion he proposed that she accept money to procure a divorce. This, however* she says was on the day of the sale of the real estate on the mortgage and is not shown to have occurred before the date of the assignment. The appellant denies that he ever saw her until about the time the second account was filed, but taking the appellee's testimony for verity it is insufficient to establish the fact that the relation of attorney and client existed between the appellant and Reese at or prior to the time the former took the assignment or made the advancements for which it was given. It appears at one time Reese and his wife resumed marital relations temporarily, and there is some evidence that he induced her to this, because, as he supposed, it would in some way relieve him from the order of support. But there is absolutely no evidence direct or otherwise to warrant an inference that the appellant advised him to resort to this expedient or even knew his motive. How, then, it can be supposed that the purpose of the appellant to defeat the order of maintenance is shown by Reese’s course in resuming temporary marital relations, it is impossible to see. There is one other fact to be noticed, namely, that the appellant made the advancements with knowledge of the existence of the order of maintenance, and so far as appears made no effort to control the application of the money to the discharge of the arrears. Looking only at the facts and inferences legitimately deducible from the evidence sent up with the record, the case, stated as favorably for the appellee as the evidence justifies, amounts to this: The appellant, a member of the bar, with knowledge of the order of the quarter sessions, and of Reese’s delinquency in paying the installments, lent Reese money from time to time without attempting to control its application, and subsequently took an assignment of the latter’s interest in payment of or to secure payment of the indebtedness thus incurred, the consideration for the assignment being full and adequate. The record of the testimony is not as full as to some details as is desirable, and if all the facts relative to the claim had been fully developed it may be that a different case would be presented. Certainly a stronger case in favor of the claim would have been presented if all the facts alleged in the petition for rehearing had been brought out. But taking the case as we find it, we are unable to conclude that the acts of the appellant amounted to a breach of professional duty, or an unlawful interference with the execution of the order' of maintenance or warrant an inference of a fraudulent intention on his part to defeat the appellee’s claim. On the contrary, we are constrained by the evidence to the conclusion that the validity of the claim was established and that there is no sufficient legal or equitable reason for disallowing it or postponing it to that of the appellee. The decree is amended and corrected in accordance with the foregoing opinion by substituting the name E. R. Edmundson in the place of Sadie Reese where it appears in the schedule of distribution, then the record is remitted to the orphans’ court to the end that the decree as thus amended and corrected be carried into effect.


text:
    Sanders’s Estate.

      Partition — Orphans’ court — Jurisdiction—Tenant by curtesy.

    1. The orphans’ court has jurisdiction to entertain a petition for partition filed by the husband of the deceased daughter of a decedent as tenant by the curtesy of his wife’s undivided interest in the estate of the decedent.

      Decedents’ estates — Tenant by curtesy — Husband and wife — Possession.
    2. A surviving husband is entitled to curtesy of land of his deceased wife of which he had only a potential seizin during her life. Actual possession by the wife, or by the husband, in her right is not necessary. If she had possession by a tenant for years, or if she had a right to the present possession, it is sufficient. The effect is equivalent to that of actual seizin.

      Partition — Denial of title — Adverse possession — Evidence—Tenant by the curtesy.

    3. The denial of the tenancy in common by an heir of the decedent on the return of the writ of partition, with an assertion of title in himself by adverse possession, will not be sufficient to require a suspension of the proceeding, but the court may hear evidence upon the claim asserted and if it be insufficient to justify submission to a jury, may confirm the inquest and proceed with the partition.
    4. A husband’s right as tenant by the curtesy in an undivided interest of his deceased wife in the land of a decedent, is not defeated by a claim of adverse possession by mere proof of the reception of profits and the payment of taxes by the co-tenants for over twenty-one years prior to the time of the filing of a petition in partition by the husband.

      5. While a life tenant has no right in the orphans’ court to elect, or to come in and bid upon return of a rule to accept or refuse, yet he has such interest as entitles him to all the incidental advantages that may accrue from an allotment by a court after competition between the parties entitled to bid, or a sale, and therefore has equal right with the other parties to object to an allotment by the inquest if that is unauthorized.

      6. The power of an inquest in partition to allot is gone when they divide the land into a number of purparts of unequal value and appraise them.
    7. Where an inquest divides land into a number of purparts of unequal value and appraises and allots them, the inquisition will be set ^ aside as a whole, unless the parties elect to let it stand as a whole.
    Argued April 19, 1909.
    Appeal, No. 45, April T., 1909, by James J. Purman et al., from decree óf O. C. Greene Co., Sept. T., 1905, No. 2, in partition in Estate of Elizabeth Sanders, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Reversed.
    Petition for partition. Before Inghram, P. J.
    The facts appear by the opinion of the Superior Court.

      Error assigned was decree setting aside the allotment of the purparts, but otherwise confirming the inquest.

      James J. Purman, with him Frank W. Downey, for appellants.
    The orphans’ court has no power to set aside an allotment of lands as made by an inquest in partition and otherwise confirm the inquest. The court must confirm the inquest as a whole or set it aside: Bishop’s App., 7 W. & S. 251; Giffin’s Est., 13 P. L. J. (N. S.) 60; Rankin’s App., 95 Pa. 358; Wistar’s App., 105 Pa. 390.
    Equal value, shares of equal value, and the like expressions in the law and decisions, simply mean this: that if the lands can-be so divided, without prejudice to or spoiling the whole, each person interested is to be allotted a portion in severalty equal in value to his interest in the whole: Wistar’s Est., 14 W. N. C. 45; Massacer’s Est., 4 Kulp, 13; Trickett on Partition, 93-94; Rankin’s App., 95 Pa. 358.
    The plea of adverse possession is a complete answer to the petition for partition, until petitioner vindicates or establishes his title to right of possession by an action of law: Staib v. Hayes, 123 Pa. 110.
    Elizabeth Sanders died intestate leaving five children; Emma, a daughter, subsequently died intestate and without issue, never having been in possession; all the heirs conveyed to strangers who were in exclusive possession. The surviving husband of Emma, claiming a life estate in her'share, cannot have partition of the whole: Cooke v. Doron, 215 Pa. 393; Rankin’s App., 95 Pa. 358; Giffin’s Est., 30 P. L. J. 60.
    October 11, 1909:
    The orphans’ court acquires no jurisdiction of this estate on this petition’: Rankin’s App., 95 Pa. 358; Snyder’s App., 36 Pa. 166; McMasters v. Negley, 152 Pa. 303.

      A. H. Sayers, for appellee.
    In what degree of relationship the parties interested may stand to the ancestor, or what the quality of the estate they may have, can obviously make no difference as respects jurisdiction. The jurisdiction having once been attached will be effectual for complete relief: Schollenberger’s App., 21 Pa. 337; Bishop’s App., 7 W. & S. 251; Holmes v. Fulton, 193 Pa. 270; Himelspark’s Est., 8 Pa. Dist. Rep. 183.
    In Pennsylvania a surviving husband is entitled to curtesy of land of his deceased wife,.although she has no actual possession, but only a potential seisin during her life. If she had possession by a tenant for years, or only the right to present possession, it is sufficient: Buchanan v. Duncan, 40 Pa. 82; Stoolfoss v. Jenkins, 8 S. & R. 167; Welch’s App., 126 Pa. 297.
    It is adverse possession which will defeat the partition and not simply an adverse claim: Wistar’s App., 115 Pa. 241.
    The court had jurisdiction on the evidence before it, to pass upon respondent’s claim to an adverse possession: Cobb v. Burns, 61 Pa. 278; Davis’s Est., 9 W. N. C. 380.
    The sheriff and jury in partition, after dividing the land into purparts and placing a valuation on the same, have power to allot the several purparts to the heirs nominatim:- Wistar’s App., 105 Pa. 390; Bishop’s App., 7 W. & S. 251.
   Opinion by

Rice, P. J.,

Elizabeth Sanders died intestate, seized of land, and leaving to survive her five children, one of whom was a married daughter who subsequently died intestate, without issue, and leaving her husband to survive her. After her death, he filed a petition for partition, to which, in response to a rule to show cause, the respondents filed an answer denying the jurisdiction of the orphans’ court. To this answer the petitioner filed a replication and upon consideration of the pleadings and the evidence submitted upon depositions the court overruled the objection and awarded a writ of partition.

The first question to be considered is, whether the orphans’ court had jurisdiction to award partition of the land of the' decedent, Elizabeth Sanders, on the petition of the husband, tenant by the curtesy, of her deceased daughter. That the orphans’ court has jurisdiction to partition the land of a decedent so situated as to the title, and that the husband of the deceased daughter, by reason of his fife estate in an undivided one-fifth part, is a necessary party to the proceeding we regard as clearly decided in Rankin’s Appeal, 95 Pa. 358. In that case Hawkins, P. J., of the orphans’ court upon an elaborate review of the statutes in force, and the decisions under them as well as under earlier statutes of similar general import, reached the conclusion, which was reiterated by the Supreme Court on appeal, that these statutes are to be liberally construed, and that taken together they give jurisdiction to the orphans’ court in cases: first, of intestacy; second, of testacy, wherein there may be minors interested, or the provisions of thé will do not alter the course of descent; third, where title is derived from different ancestors by- descent or devise. In discussing the rights of the fife tenant Justice Paxson said: “Our acts of assembly in relation to partition in the orphans’ court, though passed at different times, in reality constitute one system, and must be construed together. They are ample for the protection of a life tenant, but I am unable to see in any portion of this legislation even an intent that such tenant may come in and compete with heirs for the property. Nor is it necessary, for the preservation of his rights. The object of partition is a severance of possession. The life tenant is a necessary party to the proceedings. It is the duty of the inquest to set off to the widow her share by metes and bounds, if it can be done: Bishop’s Appeal, 7 W. & S. 251. By analogy the same rule may be extended to other tenants for life. It is true this leaves the remainder ■open to further partition at the death of the tenant for life, but this is an inconvenience that arises where the interests of the tenants are different in the time of their duration: Poundstone v. Everly, 31 Pa. 11. If the property cannot be so parted and divided that the share of the tenant for life can be set off to him, the law requires that it shall be valued, and it may then be taken by the heirs in the manner before pointed out. The heirs taking the property are of course obliged to pay the tenant for life interest upon his share. This is specifically provided for in the act of assembly in the case of a widow. By analogy the interest of other life-tenants can be secured in the same manner. We are of opinion that our entire system of partition in the orphans’ court contemplates that where the share of a life tenant cannot be set off to him by metes and bounds, he shall have the interest upon its value instead.” Notwithstanding this clear and authoritative exposition of the law relative to the jurisdiction of the orphans’ court and to the rights and standing the life tenant would have had in such a case as we have stated, if the partition proceeding had been.instituted upon the petition of a child or the alienee of a child of Elizabeth Sanders, it is urged that the law gave him no right to petition for the partition. The question presented by this obj ection was raised in the case cited, but not until after the inquisition had been confirmed and a rule had been granted on the heirs and parties interested to accept or refuse the premises at the valuation. The Supreme Court, expressly declining to decide or discuss the question, held that the objection did not go to the jurisdiction of the orphans’ court over the subject-matter, but only to the order in which the parties were brought into court, and came too late. Here the question was raised at the outset of the proceeding and must be decided. If its solution depended solely on a literal construction of the language of the 36th and 46th sections of the Act of March 29, 1832, P. L. 190, the right of the fife tenant to petition might seem doubtful. But that has not been the construction that has been generally followed. Several instances are found in the reports where the right to petition, though not founded on the strict letter of the statutes, has been held to result from their true design, and has been recognized in practice. A leading ease is Ragan’s Est., 7 Watts, 438, the doctrine of which has been followed in several later cases and applied to proceedings instituted upon the petition of the alienee of an heir, the alienee of a devisee, and the alienee of an appointee under a power in a will: Stewart’s Appeal, 56 Pa. 241; Rawle’s Appeal, 119 Pa. 100. The subject was also considered in Thompson v. Stitt, 56 Pa. 156; Cote’s Appeal, 79 Pa. 235; Danhouse’s Estate, 130 Pa. 256. If, therefore, the petition had been filed by an alienee of the daughter of Elizabeth Sanders the jurisdiction of the orphans’ court to entertain it would be sustained by these decisions. By applying the same liberality of construction, in order to carry out the true design of the statutes, the jurisdiction of the orphans’ court to entertain the petition of her husband, tenant by the curtesy, may be sustained. This conclusion seems to be in accordance with the view that was taken by the orphans’ court of Allegheny county in Rankin’s Appeal, supra, and the orphans’ court of Philadelphia county in Himelspark’s Estate, 8 Pa. Dist. Rep. 183. We are of opinion that it is the correct view.

A statement of some additional facts is necessary in order to give a correct understanding of the question which arises out of the allegation of the respondents’ answer as to their exclusive and adverse title and possession. It is alleged in the petition and not denied in the answer that in 1901, after the death of Emma, the petitioner’s wife, the respondents, by four several conveyances, the dates and tenor of which are fully set forth, acquired the title and interest of the four other children; and it is alleged in the answer and not denied in the replication that since that time they have paid all the taxes on the property, they having been assessed in their names, and have received the entire rents, issues and profits. Neither the petitioner nor his deceased wife was ever in the actual occupancy of the premises after the death of Elizabeth Sanders. While the respondents deny the petitioner’s title, and assert their exclusive title and possession in very vigorous terms, they do not assert any right or title adverse to Elizabeth Sanders or any right or title derived otherwise than as above stated. As was proper in view of some of the allegations of the answer, the court received depositions to determine the questions raised by the petition, answer and replication: Trickett’s Law of Partition in Pa. 47. In these every fact denied in the answer, which was essential to the petitioner’s title and right of possession, was clearly proved, and no evidence whatever was introduced by the respondents which raised even a dispute of fact regarding them. As to the effect to be given to the fact that neither the petitioner nor his deceased wife was ever in the actual occupancy of the premises after the death of Elizabeth Sanders, it will suffice to say, that in Pennsylvania a surviving husband is entitled to curtesy of land of his deceased wife of which he had only a potential seizin during her life. Actual possession by the wife or by the husband in her right is not necessary. If she had possession by a tenant for years, or if she had a right to present possession, it is sufficient. The effect is equivalent to that of actual seizin: Buchanan v. Duncan, 40 Pa. 82; Stoolfoos v. Jenkins, 8 S. & R. 167, 175; Chew v. Southwark, 5 Rawle, 160. In connection with the facts as to the reception of the rents, issues and profits and the payment of taxes, there should be considered the averments of the replication, not controverted by any evidence, that the “title and right of possession of petitioner to said property has never before to his knowledge been denied either by the respondents or by any other person, but on the contrary the respondents have .... offered to purchase the same,” and that his share of the income of the estate, for which the respondents have not accounted to him, was more than enough to pay his proportionate share of the taxes. While it has been said that an adverse holding of property by the defendant twenty-one days before the bringing of an action of partition at law is as effectual to defeat the plaintiff as an adverse holding for twenty-one years would be, Law v. Patterson, 1 W. & S. 184, yet it has also been held with reference to partitions in equity and in the orphans’ court that the court is not concluded by the respondent’s claim but has power to receive and look into testimony far enough to determine whether the claim of adverse and exclusive title and possession, in which is necessarily involved a claim that the respondent’s cotenants have been ousted or disseized, has any foundation in fact. One of the points expressly decided in Welch’s Appeal, 126. Pa. 297, upon careful consideration and thorough discussion, is correctly stated in the syllabus as follows: “The denial of the tenancy in common by an heir of the decedent on the return of the writ of partition, with an assertion of title in himself by adverse possession, will not be sufficient to require a suspension of the proceeding, but the court may hear evidence upon the claim asserted and if it be insufficient to justify submission to a jury, may confirm the inquest and proceed with the partition.” This ruling was followed and applied in McMahon’s Estate, 211 Pa. 292, and in Carey v. Schaller, 16 Pa. Superior Ct. 350, and the principle of the case was distinctly recognized in McCorkle’s Estate, 184 Pa. 626. Upon the same principle it was the province and duty of the court in the present case to go beyond the denial of the petitioner’s title and seizin and the assertion of the respondents’ exclusive title and possession set up in their answer, and, if these were refuted by the undisputed facts, to award the inquest. We have spoken sufficiently of the title and there remains only to consider the sufficiency of the acts of the respondents to raise a legal presumption or warrant an inference of ouster or disseizin. Lapse of time enters into the question of inferring an ouster and adverse possession from such acts. This is shown in Galbreath v. Galbreath, 5 Watts, 146, which was partition, as well as in Bolton v. Hamilton, 2 W. & S. 294; Susquehanna & Wyoming Valley Railroad & Coal Co. v. Quick, 61 Pa. 328, and many other cases. In the recent case of Rohrbach v. Sanders, 212 Pa. 636, Justice Fell speaking of the effect of such acts, in the absence of exclusive possession for twenty-one years, said: “The possession of one tenant in common is prima facie the possession of his cotenant also, and the mere reception of profits, payment of taxes, and making repairs without more will not sustain a claim of ouster or adverse possession: Bolton v. Hamilton, 2 W. & S. 294.” Whatever might be the presumption that would arise from these acts of the respondents, if they had continued uninterruptedly for twenty-one years, without any recognition in the meantime of the petitioner’s title, it is quite clear, particularly when considered in connection with the undenied facts averred in the replication, that the reception of the profits and the payment of taxes up to the time this petition was presented would not have been sufficient to raise such natural or legal presumption of ouster as would have defeated the partition, if Emma Good had been living at that time and the petition had been presented by her: Galbreath v. Galbreath, 5 Watts, 146; Carey v. Schaller, 16 Pa. Superior Ct. 350. They are equally ineffectual to defeat the petition of her surviving husband.

The next question to be considered is as to the power of the inquest to allot the purparts into which they divided the land. The case is peculiar and not exactly like any other that has come to our notice. It appears by the return of the inquest, that they found that the property could be divided and parted without prejudice to or spoiling the whole; that they divided it into five purparts, numbered one, two, three, four and five, which were fully described; that they valued number one at $250, and the four other purparts together, at $1,000; that they allotted number one, “being the equal one-fifth part of said premises in both area and value,” to the petitioner for life, with remainder to the respondents, and the four other purparts, “being the equal four-fifths part of the premises in both area and value,” to the respondents. It appears by the draft attached to and made part of their return that the five purparts are respectively of the same area, and were valued as follows: number one, $250, number two, $175, number three, $175, number four $200, number five, $450. The petitioner excepted to the return upon the ground that the sheriff and jurors had no authority to allot the purparts. The court sustained the exception and set aside the allotment, but otherwise confirmed the return of the inquest. It is argued in opposition to this exception, upon the assumption that the petitioner is to be treated as one party and the two respondents jointly as the other party, that there was allotted to each a portion of the land corresponding both in area and value with that party’s interest in the estate, and therefore the petitioner has no right to complain. While it is true that a life tenant has no right, in the orphans’ court, to elect, or to come in and bid upon return of a rule to accept or refuse (Rankin’s Appeal, 95 Pa. 358) yet he has such interest as entitles him to all the incidental advantages' that may accrue from an allotment by the court after competition between the parties entitled to bid, or a sale, and therefore has equal right with the other parties to object to an allotment by the inquest if that is unauthorized. If the case is one where it is the province and duty of the inquest to allot the purparts, and they do allot them, it is the duty of the court, if the inquisition be not set aside, "to give judgment that the partition thereby made be firm and stable forever, and that the costs be paid by the parties concerned.” Where the inquest or commissioners divide the land into as many purparts, of equal value, as there are parties entitled, they may allot one purpart to each, without appraising either the land as a whole or the several purparts: Wistar’s Appeal, 105 Pa. 390. But where the number of purparts into which they divide the land will not permit an equal division according to interest by setting off one purpart to each person entitled to take in severalty, the act of 1832 provides for an appraisement of the purparts by the inquest, and transfers the power of allotment to'the court. Furthermore, such being the kind of case in which an appraisement is required, the Act of April 22,1856, P. L. 532, applies: Whitman v. O’Connor, 145 Pa. 642. Therefore, while impressed with the plausibility of the argument of appellant’s counsel, we are constrained to concur with the learned judge of the orphans’ court in holding that the power of the inquest to allot was gone when they divided the land into five purparts of unequal value, and appraised them: Davis v. Dickson, 92 Pa. 365.

The last question to be considered is as to the power of the court to strike off the allotment and confirm the inquisition otherwise. There may be cases where the court would be justified in striking out of the return irrelevant matter as surplusage, but a striking out of that which may have affected the judgment of the inquest in other matters, and then confirming the inquisition as amended is quite a different thing. In Christy’s Appeal, 110 Pa. 538, it was said that if the return is, as such, defective in leaving uncertain what the inquest did, or what they intended to be understood as done, the court ought, even without exceptions of parties, to set it aside. For the same reason the court ought not to confirm an inquisition after striking out a material part of it without being certain that as thus altered it presents the judgment of the inquest. The power to determine whether the land can be divided without prejudice to or spoiling the whole, and if so the number of purparts into which it may be most advantageously divided is in the inquest. It is by no means certain that in this case they would have made the same division if they had not supposed they had the power to allot the purparts as they did. We therefore conclude upon this point that the inquisition should be set aside as a whole, unless the parties elect to let it stand as a whole, which they may deem it advisable to do rather than to submit to the expense and delay incident to another inquisition.

The decree setting aside the allotment and confirming the inquisition otherwise is reversed, and the record is remitted to the orphans' court with directions to set aside the inquisition as a whole and to award an alias inquest to make partition, unless within thirty days from the date of this decree the parties shall elect in writing to have the inquisition as returned confirmed as a whole, in which event the court shall confirm the inquisition, and give judgment that the partition thereby made be firm and stable forever, and that the costs thereof be paid by the parties concerned in proportion to their several interests. It is further ordered that the costs of this appeal be paid by the appellee.


author: Porter, J.,

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

      Negligence — Railroads—Passengers—Acts o/ passengers.

    1. Carriers of passengers are liable only for negligence, and are not insurers of the safety of their passengers, as they are as carriers of goods. The burden is upon the passenger who seeks to recover from a carrier damages for personal injuries sustained while upon his journey to prove negligence or facts from which a presumption of negligence arises.
    2. The act of a passenger in tossing through the open window of a car an empty bottle, the accidental breaking of such bottle against a car upon another track, and the unfortunate return of a fragment of glass through another open window injuring another passenger, is in no way connected with the appliances or machinery used in the operation of the road, or the acts of the employees in the conduct of the train, or with the construction of the road, and, therefore, there is no presumption of negligence on the part of the railroad company. In such a case the burden is upon the injured passenger to prove by affirmative evidence that the defendant company or its employees had been guilty of negligence which was responsible for the injury.
    3. The carrier is not liable for the negligent or unlawful act of a passenger, which may result in an injury to a fellow passenger, upon the principle of respondeat superior. The carrier is, however, liable for injuries to a passenger resulting from the negligent or unlawful acts of a fellow passenger if prior to the accident the conduct of the offending party has been such as to indicate a disposition to indulge in physically violent conduct and give rise to a reasonable apprehension of injury to other parties. This is not upon the ground that the company is Hable to answer for the acts of all those whom it undertakes to carry, but it is because of the failure of the duty to afford reasonable and proper protection to other passengers.
    4. The carrier is not bound to provide against contingencies which it had no reasonable grounds to apprehend, nor is it bound to protect its passengers from rudeness or bad manners on the part of strangers or other passengers, unless such conduct amounts to a breach of the peace; the officers of the law can take no cognizance of it, and carriers are not bound to prevent it or liable in damages for its appearance about their stations or trains.
    5. In an action by a woman passenger against a railroad company to recover damages for personal injuries, it appeared that another passenger sitting in front of the plaintiff tossed through an open window an empty bottle, which broke against a car on another track, and the fragments of the glass returned through the open window at which the plaintiff was seated, injuring her in' the face. The evidence of the plaintiff, corroborated by one other witness tended to show that the bottle was thrown by one of four young men who were seated together, that up to a time a few minutes before the accident they had done nothing to attract attention; that they then took out a beer bottle from a basket, began to drink beer and to swear among themselves, but there was no evidence that they were quarreling, or were angry, or that they were intoxicated. The bottle was thrown out of the window shortly after they began to drink the beer. It was also shown that the conductor had passed through the car before they began drinking. Held, that the evidence was not sufficient to sustain a verdict against the railroad company.
    Argued April 20, 1909.
    Appeal, No. 79, April T., 1909, by defendant, from judgment of C. P. Fayette Co., Dec. T., 1907, No. 135, on verdict for plaintiff in case of Millie Barlick v. Baltimore & Ohio Railroad Company, Operating the Pittsburg & Connellsville Railroad Company.
    October 11, 1909:
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Van Swearingen, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict for plaintiff for $1,000, upon which judgment was entered for $500, all above that amount having been remitted.

      Error assigned was in refusing binding instructions for defendant.

      James R. Cray, with him D. W. McDonald and T. H. Hudson, for appellant.
    The evidence was insufficient to charge defendant with negligence: Ellinger v. R. R. Co., 153 Pa. 213; Fredericks v. R. R. Co., 157 Pa. 103; Pittsburg, etc., R. R. Co. v. Pillow, 76 Pa. 510; Graeff v. R. R. Co., 161 Pa. 230; Kennedy v. R. R. Co., 32 Pa. Superior Ct. 623; Thomas v. R. R. Co., 148 Pa. 180; Federal St. & Pleasant Valley Ry. Co. v. Gibson, 96 Pa. 83; Fleming v. Ry. Co.,158 Pa. 130; Penna. R. R. Co. v. MacKinney, 124 Pa. 462; Boatwright v. Ry. Co., 4 Pa. Superior Ct. 279; Ginn v. R. R. Co., 220 Pa. 552.

      Sterling, Higbee & Matthews, with them S. R. Goldsmith, for appellee.
    The fact of a drunken and disorderly passenger on a train is an indication that other passengers may be injured, and it is the likelihood of injury to other passengers and not the manner of such injury, that the railroad company must apprehend and guard against: P. & C. R. R. Co. v. Pillow, 76 Pa. 510; Rommel v. Schambacher, 120 Pa. 579; Duggan v. R. R. Co., 159 Pa. 248; Kennedy v. R. R. Co., 32 Pa. Superior Ct. 623.
   Opinion by

Porter, J.,

The plaintiff was a passenger on a Sunday excursion train of the defendant company, which, at seven o’clock in the moming of September 8, 1907, left Pittsburg, Pennsylvania, for Cumberland, Maryland. About twenty minutes after the train started, before it had reached Braddock, the first stop, which is ten or twelve miles from Pittsburg, a passenger sitting in front of the plaintiff tossed an empty beer bottle out of an open window, while the train was in motion, and the bottle striking a car upon another track was broken and a piece of the glass passing back into the car through an open window inflicted a painful but not serious cut upon the cheek of the plaintiff. The plaintiff brought this action to recover from the defendant carrier damages for the injury so sustained, recovered a judgment in the court below and the defendant appeals.

Carriers of passengers are liable only for negligence, and are not insurers of the safety of their passengers, as they are as carriers of goods. The burden is upon the passenger who seeks to recover from a carrier damages for personal injuries sustained while upon his journey to prove negligence or facts from which a presumption of negligence arises: Meier v. Pennsylvania Railroad Company, 64 Pa. 225; Fredericks v. Northern Central Railroad Co., 157 Pa. 103. The present case presents two questions: (1) did the plaintiff prove facts which gave rise .to a presumption of negligence and thus place upon the defendant the burden of disproving negligence; and (2) was the evidence such as to warrant the submission of the question of the negligence of the defendant company to the jury. The first question involves a consideration of the rule of evidence in cases of this character, and the second that relating to the responsibility of the carrier.

There was no dispute as to the plaintiff having been injured nor as to the manner in which the injury occurred. The learned judge of the court below affirmed a point submitted by the plaintiff in these words: “When a passenger, carried on a train, is injured, without fault of his own there is a legal presumption of negligence by the carrier, and the onus to disprove it is on the carrier.” The affirmance of this point is the foundation of the fifth specification of error. The eighth specification of error complains of the following language of the court, in the general charge: “And if in this case this plaintiff-was injured in the: manner in which she says she was, and that fact is not denied, then there arises a presumption that the company at that time was negligent, and the burden is now on the company to prove to you that there was no negligence on its part or on the part of its employees, which caused or contributed to this accident.” There can be no question that these rulings imposed upon the defendant company the burden of disproving negligence. Was this rule of evidence properly applied in the case of an injury arising from the cause disclosed by the testimony in this case? There is no such privity between the carrier and a passenger, even one who is disorderly, as to make the former liable for the acts or negligence of the latter on the principle of respondeat superior: Pittsburg, Fort Wayne & Chicago Railway Company v. Hinds, 53 Pa. 512; Boatwright v. Railway Company, 4 Pa. Superior Ct. 279. “Where a passenger is injured, either by anything done or omitted by the carrier or its employees, or anything connected with the appliances of transportation, the burden of proof is upon the carrier to show that such injury was in no way the result of its negligence; but to throw this burden upon the carrier, it must first be shown that the injury complained of resulted from the breaking of machinery, collision, derailment of cars, or something improper or unsafe in the conduct of the business or in the appliances of transportation:” Thomas v. Philadelphia & Reading Railway Company, 148 Pa. 180; Federal Street & Pleasant Valley Railway Company v. Gibson, 96 Pa. 83; Pennsylvania Railroad Company v. MacKinney, 124 Pa. 462; Fleming v. Railway Company, 158 Pa. 130; Ginn v. Pennsylvania Railroad Company, 220 Pa. 552; Ault v. Cowan, 20 Pa. Superior Ct. 616. It is clear that the act of the fellow passenger in tossing through the open window an empty bottle, the accidental breaking thereof outside the train and the unfortunate return of a fragment of glass through the open'window, which injured the plaintiff, was in no way connected with the appliances or machinery used in the operation of the road, or the acts of the employees in the conduct of the train, or with the construction of the road, and, therefore, there is no presumption of negligence on the part of the appellant. The burden was upon the plaintiff to prove by affirmative evidence that the defendant company, or its employees, had been guilty of negligence which was responsible for her injury. The fifth and eighth specifications of error are sustained.

The defendant requested the court to charge that under all the evidence in the case the verdict of the jury should be for the defendant, and the refusal of that point is the subject of the fourth specification of error. This specification raises the question of the sufficiency of the evidence to sustain a finding that the employees of the defendant had been guilty of negligence which was. responsible for the injury for which this plaintiff seeks to recover. The act of the passenger who tossed the bottle out of the window may have been a negligent act, under the circumstances which accompanied it, and, if so, this plaintiff could recover from the party who did the act damages for her injuries, and it is most fortunate that, as disclosed by the evidence, she is aware of the identity of that person. The mere fact, however, that the injuries of the plaintiff resulted from a negligent or unlawful act of a fellow passenger is not of itself sufficient to render the carrier liable to answer in damages for such injury. Conductors on trains have authority to exercise reasonable control over the passengers and are responsible for the exercise of that authority. It is their duty to repress disorder upon the trains, and in case there is any reasonable ground to apprehend that other passengers may suffer physical injury from the violence of disorderly passengers it is their duty to use every means at their command to protect other passengers and restrain, and if .necessary remove from the train the disorderly parties: Kennedy v. Pennsylvania Railroad Company, 32 Pa. Superior Ct. 623; Railway Co. v. Hinds, 53 Pa. 512. The carrier is not hable for the negligent or unlawful act of a passenger, which may result in an injury to a fellow passenger, upon the principle of respondeat superior. The carrier is, however, liable for injuries to a passenger resulting from the negligent or unlawful acts of a fellow passenger if prior to the accident the conduct of the offending party has been such as to indicate a disposition to indulge in physically violent conduct and give rise to a reasonable apprehension of injury to other parties. This is not upon the ground that the company is liable to answer for the acts of all those whom it undertakes to carry, but it is because of the failure of the duty to afford reasonable and proper protection to other passengers. The carrier is not bound to provide against contingencies which it had no reasonable grounds to apprehend, nor is it bound to protect its passengers from rudeness or bad manners on the part of strangers or other passengers, unless such conduct amounts to a breach of the peace: Ellinger v. Philadelphia, Wilmington and Baltimore Railroad Co., 153 Pa. 213; Graeff v. Philadelphia & Reading Railroad Co., 161 Pa. 230. In the cases last cited it was said: “Unless such conduct amounts to a breach of the peace, the officers of the law can take no cognizance of it, and carriers are not bound to prevent it or liable in damages for its appearance about their stations or trains.”

The evidence upon which the plaintiff sought to charge the defendant company with negligence consisted of her own testimony and that of one other witness, Mr. Hartman, and was very meager. The passenger who subsequently tossed the empty beer bottle out of the window was one of a party of four young men who sat in two seats which had been turned to face each other, directly in front of the seat in which plaintiff sat. The learned counsel representing the appellee has repeatedly in his paper-book referred to this party as “drunken passengers.” We deem it proper here to observe that neither the plaintiff nor any other witness in the case undertook to say that any one of this party was drunk or under the influence of liquor. There was nothing about the party to attract attention or suggest that they were not proper persons to be aboard the train or that their presence involved any danger to other passengers at the time they boarded the train at Pittsburg or down until about the time this accident occurred. The train left Pittsburg at seven o’clock in the morning and so far as the evidence indicates, the members of this party of four passengers were then entirely sober. The plaintiff testified that shortly after the train left Pittsburg these four young men began to drink beer and she heard them swearing among themselves; but her testimony contains no intimation that there was anything to indicate that they were quarreling or that they were angry. There was nothing about the young men to attract her attention, so far as indicated by the evidence until, according to her testimony, about five minutes after the train had left Pittsburg, when she says they began to drink beer out of pint bottles which they took out of a basket under the seat. She testified that the accident happened when the train was about Braddock, or about twenty minutes after the train left Pittsburg. In another part of her testimony she said: “ Q. Just state to the court and jury how you were injured? A. Well, twenty minutes after I seated myself on the right side, I was reading a magazine, I noticed these four young men drinking and wondered why it was not stopped. There was no effort whatever made to stop them,” and in reply to a further question described how at that time a bottle being thrown out of the window by one of the men a piece of the glass flew back and hit her on the cheek. The witness Hartman testified that there was nothing in the appearance of the young men to attract his attention until the train was in the neighborhood of Braddock: “They began to drink beer about twenty minutes or half an hour after the train started, we were along about Braddock.” This witness testified that the young men did not swear or make any noise before they commenced to drink beer; that they had not drunk much beer before they began to swear, that the swearing occurred along about Braddock; and that nothing about the conduct of the men attracted his attention until they commenced to drink. This witness sat in the end of the seat next the aisle directly across from that in which the party in question were located, and his opportunities for observing the young men were certainly as good as could have been had. This witness testified that the conductor passed through the car before the young men commenced to drink beer. He testified explicitly that the accident occurred in the neighborhood of Braddock and, that, “When the accident occurred they had just commenced to drink.” The sum of the testimony of this witness, who was the only witness called by the plaintiff to corroborate her own testimony, was, that the four young men were well behaved until they began to drink beer; that the conductor passed through the car before they began to drink beer; that they did not begin to drink beer until the train was in the neighborhood of Braddock, about twenty minutes after leaving Pittsburg; that they did not swear until a little time after they began to drink beer; that the swearing was done among themselves; that the accident happened in the neighborhood of Braddock and that when it occurred they had just commenced to drink beer. There is not a scintilla of evidence in the case indicating that the young men had shown any disposition to quarrel among themselves or with other people, or that they had exhibited any inclination to indulge in any physical violence. They sat in their seats quietly until some time after the train started, and they then took some pint bottles out of a basket under the seat and began to drink beer, this and the fact that shortly afterwards they were guilty of the bad manners and bad taste of using in their conversation profane language which could be heard by passengers in the adjoining seats was the utmost that can be asserted to have been shown by the evidence to have occurred prior to the accident. The fact that this defendant is to be judged by what had occurre'’ prior to the accident must not be lost sight of. There was no evidence that the young men had thrown a bottle or anything else out of the window prior to the time the bottle in question was tossed out, while the train was in motion, unfortunately striking a car on the other track and resulting in thé injury to the plaintiff. The evidence did not disclose anything which could give rise to a reasonable apprehension that a breach of the peace was likely to occur or that any one of the party of young men was likely to do anything which would result in an injury to another passenger. Had the young men been permitted, by the employees of the defendant company, to drink beer or other liquors in the car until they had become intoxicated an entirely different question would have been presented, which under the evidence in this case it is not necessary to consider. This accident happened about the time the drinking of beer was commenced. There was no evidence that any of the party had been angry or exhibited any disposition to quarrel prior to the accident, nor was there any evidence that, even after the accident, there was any quarrel or any indication of an inclination to physical violence. The testimony did not disclose any breach of the peace or any inclination to a breach of the peace, nor anything else which could afford a reasonable foundation for an apprehension of violence which might result in injury to other parties; there was, therefore, nothing from which a jury should have been permitted to find the defendant liable in damages for the injuries to plaintiff: Ellinger v. Philadelphia, Wilmington & Baltimore Railroad Co., 153 Pa. 213; Graeff v. Philadelphia & Reading Railroad Co., 161 Pa. 230. Precaution is a duty only so far as there is reason for apprehension, and a jury cannot be permitted to hold parties to a higher standard of care than the law imposes nor to find anything negligence which is less than a failure to discharge a legal duty. The law does not require anyone to presume that another will be negligent, much less to presume that another may be an active wrongdoer: Philadelphia & Reading Railroad Company v. Hummell, 44 Pa. 375. The request of the defendant for binding instructions should have been affirmed.

The judgment is reversed.


text:
    Commonwealth to use v. Shapiro, Appellant.

      Landlord and tenant — Use of private ways — Trespass—Posting land— Act of April 14,1905, P. L. 169.
    Where an owner of land leases dwelling houses thereon, under leases containing covenants that the lessee will not “use, allow, suffer, or permit the use of the lands, or the private way or road through or over the lands to said house for any purpose than that of ingress or egress from and to the public road for said lessee and the members of his family, and to do no act or thing .... whereby the public might be invited or allowed to go or trespass on the ground of the lessor,” a person who delivers goods purchased by a lessee is not a trespasser on the private way; nor does he become a trespasser by soliciting orders from the lessee to whom he has delivered goods previously bought; but he will become a trespasser if he uses the private way for talcing orders from other persons in the settlement; and if the land has been posted under the Act of April 14,1905, P. L. 169, he will be liable for the penalty imposed by the act if he takes such orders from other persons.

      Argued April 22, 1909.
    Appeal, No. 146, April T., 1909, by-defendant, from judgment of C. P. Washington Co., Nov. T., 1907, No. 154, in case stated in suit of Commonwealth to use of Chartiers Township School District v. Harry Shapiro.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Case stated on appeal from judgment of a justice of the peace. Before Taylor, J.
    The facts are stated in the opinion of the Superior Court.

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

      T. H. W. Fergus, with him Shapiro & Levy, for appellant.
    When land is conveyed, which the vendee cannot reach without going over the land of the vendor, the right of way is implied and, of necessity, becomes appurtenant to the land conveyed so long as it cannot be otherwise enjoyed: Wissler v. Hershey, 23 Pa. 333; Delevan v. Champlin, 4 Lack. Jurist. 259.
    This is a conclusive answer to the action (trespass) that the evidence proves that the possession of the premises on which the trespass was committed, was not exclusively in the plaintiff. It was a joint possession and the alleged wrong was by the authority of the joint possession: Beaver v. Filson, 8 Pa. 327.
    Penal statutes must be construed strictly, and should not be extended beyond the evident intention of the legislature as expressed upon their face. We must have regard to whom and to what the act is intended to refer, and to nothing else: Bucher v. Com., 103 Pa. 528.
    Contracts clearly injurious to the public interest are held invalid, however novel: Baltimore v. Imp. Co., 40 L. R. A. 494; Keeler v. Taylor, 53 Pa. 467; Muller v. Bohringer, 3 Pa. C. C. Rep. 144.

      Richard O. Miller, for appellee,
    cited: Com. v. Lapempti, 16 Pa. Dist. Rep. 403; Com. v. Rogers, 1 Del. Co. 517; Pittsburg v. Kalchthaler, 114 Pa. 547; Com. v. Burford, 35 Pa. C. C. Rep, 225; Enders v. Enders, 164 Pa. 266.

      October 11, 1909:
   Opinion by

Rice, P. J.,

So far as this case relates to the defendant’s traveling- over the private ways for the single purpose of delivering to the premises, to which the ways were appurtenant, goods which had been ordered by tenants of the premises, it is like the case of Commonwealth v. Burford, 38 Pa. Superior Ct. 201, excepting in this particular: in that case the written leases under which the tenants held contained no reference to any public or private way, whereas the leases involved in the present case each contained a covenant relative to the use of the private ways. But for that covenant in the leases, the following .statement of the law taken from the opinion in Commonwealth v. Burford would be applicable and controlling: “When Fitzgerald and Lenhart” (here the United Coal Company) “leased the several houses they, the owners Of the land, knew of the existence of these private customary ways and they knew., also, that these ways were the only means of access to the houses which they were leasing. These private and customary ways, therefore, passed by the lease as appurtenant to the house, and the fact that the lease contained no express grant is wholly immaterial. The ways being appurtenant to the house, the title to the latter carried with it the right to the use of the way. The right being appurtenant to the house, it included not only the right of the lessee to the use of it, but that it might be used by his family and others who with the permission of the tenant visited his house for any lawful purpose.” How then does the covenant in the.leases affect the question for decision? It reads as follows: “Said lessee further covenants, premises and agrees to. and with said lessor that any amount said lessee may owe said lessor for rent or merchandise shall be deducted from his earnings and that said lessee will use said demised premises as a dwelling house for himself and family and for no other purpose, and he hereby agrees to not use, allow, suffer or permit the use of the lands, or the private way or road through or over the lands of said lessor to said house for any purpose than -that of ingress and egress from and to the public road' for said lessee and the members of his family, and to do no act or thing, or suffer or cause the same to be done, whereby the public may be invited or allowed to go or trespass upon the ground of the lessor.”

It is argued that any contract entered into by the lessee, under constraint, whereby their right to invite anyone with whom they were doing business to come to their homes, and make reasonable use of the private roads and ways for that purpose, was given away, would be void. This proposition need not be considered, because the agreement as to the facts contains no express admission that the lessees were under constraint when they executed the leases, and no facts are admitted from which a legal implication or inference of that fact arises.

Another proposition submitted by appellant’s counsel is, in effect, that even if there was a violation of the covenant on the part of the lessees, that was a matter between them and the landlord exclusively, and therefore a third person who accepted the tenant’s invitation, although with notice that the landlord denied his right to enter upon the property, was not a trespasser and incurred no liability. We are not prepared to give unqualified assent to this view. If in the absence of the tenant’s permission the use of the way by the third person against the objection of the owner of the land would have been a tresspass, the tenant’s invitation or permission which he had no right to give would not make that act of the third person any the less an unauthorized entry upon the land of the owner. The owner of a right of way over the land of another is limited in its use by the terms of the grant from which the way was derived. Upon the same principle, a right of way which passes as an appurtenance of leased premises without express words granting it may be limited and restricted by the covenants of the lease, if such was the intention of the parties, as we have no doubt it was here. One branch of the covenant is, not to do any act or thing, or suffer or cause the same to be done, whereby “the public” may be invited or allowed to go or trespass upon the ground of the lessor. This undoubtedly was intended to apply not only to the ground of which the lessor retained exclusive possession, but also to the ground over which the private ways pass. The premises were leased for use as dwelling houses and were to be used for no other purpose. The obvious purpose of the branch of the covenant which relates to use by the public was to keep the premises and ways strictly private. They would be so, even though some member of the general public might be admitted. A covenant against admitting the public at large is not tantar mount to a covenant against permitting any individual to set foot upon the way or premises for any purpose. But the covenant goes further and excludes the use of the ways “ for any other purpose than that of ingress and egress from and to the public road for said lessee and the members of his family.” The case may be considered as if there was a grant in express words of the right to use the ways for that purpose, and a covenant not to use them, or permit them to be used, for any other. In determining the meaning of a grant in such words and with such restrictions, we must endeavor to arrive at the intention of the parties, and in doing so must have regard to the circumstances, for it needs but a moment's reflection to see that the words “ingress and egress” are not the precise equivalent under all circumstances and in all connections of the words “ going into and going out of.” It is to be particularly noticed in the present case that the several premises were leased for use as dwellings, that all the houses are located at some distance from any public road, and that the only way of reaching them from any public road without passing over exclusively private property, is by these private ways. While the terms of such a grant are not to be enlarged by construction so as to include a use plainly intended to be excluded, a construction which would prevent the beneficial use by the lessees of the premises in the manner and for the purpose specified in the leases is not to be adopted unless such construction is unavoidable. To hold that the tenants have only the right to move over the ways on foot or by vehicle, and are restricted by their covenants from conveying their households goods and supplies over them, would deprive them of the beneficial use of the premises as dwelling houses. The words ingress, egress and regress are frequently used in leases to express the right of the lessee to enter, go upon and return from the lands in question: Bouvier’s Law Dictionary (Rawle’s ed.), 1036. Where a way is provided for use by a tenant as a means of ingress and egress to and from premises leased as a dwelling house, and there is no other means of ingress and egress, it requires no enlargement of the commonly accepted meaning of the words, when used to define a lessee’s right, to hold that the right of ingress and egress includes the right to bring his household goods and supplies to the premises. And in the absence of plainly restrictive words this right of ingress and egress includes his right to have them delivered to him by the person from whom he may have bought them. If the tenants of the premises in question did not have this right, there is no point at which we could stop short of holding that they did not have the right to employ a drayman to haul their goods to and from the premises or to call to the premises a physician in case of sickness, or an undertaker in case of death. These and other illustrations that suggest themselves show the unreasonableness of attaching to the words “ingress and egress” the narrowest meaning possible, and the necessity of considering them in the light of the subject-matter, the relation of the parties, the situation of their respective tenements and the purposes for which the ways were provided and the premises were leased. Thus considered, we conclude that the use of the ways by the defendant for the purpose of delivering to the leased premises, to which they were appurtenant, goods bought by the tenants and ordered to be so delivered was not a trespass or a violation of the act.

The case presents the further question of the right of a vender of goods to drive upon the ways for the purpose of soliciting from the tenants orders for goods, it not being shown that he was invited by the tenants or owner to enter upon the land for that purpose. It has not been made clear that a restriction of a private way which would exclude entry upon the land for such purpose would be invalid upon any ground of public policy, nor can we see that its unreasonableness is apparent. The owner of land is under no legal obligation to provide access to the leased premises for that purpose, and we can conceive of cases where it might be to the interest and convenience of the lessees to have such use of the ways excluded. At any rate, the right of the lessee to accept a lease of the premises with such restriction of the private way must be conceded, and if he has done so, it- is impossible to see upon what principle an entry on the land in opposition to the restriction, without the permission or invitation of either the owner or tenant, and with aatual notice of the owner’s objection can be legally justified.

But it may be said that as the defendant entered lawfully to deliver goods that had been ordered by tenants, his entry did not become unlawful by reason of his soliciting orders. This would be so, if he confined his use of the ways to the soliciting of orders from the same tenants at the same time that he delivered the goods previously ordered; in other words, the mere soliciting of orders was not a trespass. But an entry on one of the ways for the purpose of delivering goods to one tenant would not justify or excuse the use of all the ways or the remoter part of the same way for the purpose of soliciting orders from other tenants: Shiffer v. Broadhead, 126 Pa. 260; Irwin v. Patchen, 164 Pa. 51; Truby v. American Natural Gas Co., 38 Pa. Superior Ct. 166. The agreement as to facts admits the company’s ownership of the land, the posting of notices as required by the act of 1905, and the defendant’s entry upon the land. The only legal .justification for his admitted entry without invitation or permission of the owner is the implied invitation of the tenants to deliver goods that they had ordered.. But having admitted that he also traveled over the roads for the additional purpose of soliciting orders, the question arises whether we ought to presume that that was at the same time and only to the same extent that was required in delivering the goods ordered. We are of opinion that this is not to be presumed. If it was a fact, the importance of setting it forth clearly in the agreement as to facts would scarcely have escaped the attention of counsel. A legitimate and, we think, the more natural inference to be drawn from what is set forth is that the uses of the roads for the two purposes were not coincident'in every particular.

The case stated contains this agreement: “That all errors of process and proceedings and form of action are hereby waived and the case as stated is submitted to the court to determine whether the facts as above set forth constitute a violation of the Act of Assembly of April 14, 1905, P. L. 169.” In view of this express agreement, and the absence of reference in the paper-book to the question whether the appeal should have been taken to the quarter sessions instead of to the common pleas, we do not feel called upon to discuss the question.

The judgment is affirmed.