author: Orlady, J.,

text:
    Cunningham v. The Pennsylvania Railroad Company, Appellant.

      Carriers — Railroad companies — Negligence—Flood—Evidence.
    1. In an action against a railroad company to recover for the loss of cement which was destroyed in cars on a siding during a flood, there was testimony that prior to the particular flood the tracks had been raised as a precautionary measure. A witness for the company testified that after the tracks had been raised cars had not been removed from the siding at times of flood. Held, that the plaintiff was entitled to show in contradiction of the defendant’s witness that cars had been removed subsequently to the elevation of the tracks.
    2. The admission of such testimony does not violate the rule that evidence of subsequent precautions taken after the happening of the accident is not admissible to prove antecedent negligence.
    3. In general where a carrier by the exercise of reasonable diligence could have foreseen the happening of an event that caused injury to goods in carriage, and he failed to make use of the means at his command to guard against it, and the goods were thereby lost or injured, he will be liable although such loss or injury would not have happened but for an act of God.
    4. In an action against a carrier to recover the value of goods lost in a flood, a prognostication of the weather bureau, while evidence, is not conclusive.
    Argued April 16, 1909.
    Appeal, No. 14, April T., 1909, by defendant, from judgment of O. P. No. 4, Allegheny Co., Fourth Term, 1907, No. 416, on verdict for plaintiff in case of R. H. Cunningham v. The Pennsylvania Railroad Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Reversed.
    Trespass to recover damages for the loss of cement. Before Cohen, J.
    The facts are stated in the opinion of the Superior Court and the charge of the court, which was in part as follows:
    [The bill of lading, offered in evidence, contains a provision that in case of flood the company shall not be liable for loss.
    “No carrier or party in possession of all or any of the property herein described shall be liable for any loss thereof or damage thereto by causes beyond its control, or by floods or by fire.” Now they set up as a defense in this case this: they say, “Yes we did receive these goods, but by reason of the flood the goods were destroyed or the goods we^e not delivered.” The defendant claims that the burden, therefore, is on the plaintiff to show negligence on the part of the defendant company, and the plaintiff has undertaken voluntarily that burden and has attempted to prove to you that although the defendant company would be released in the case of a flood, yet that does not relieve them from the duty of saving the goods from a flood if they possibly can, and, as a matter of law, I say to you that if the defendant had notice from the elemental conditions surrounding it, from the rising of the.river and the falling of the rain, from the experience of its agents, if they had any, according to the evidence, they had a right to use it and every precaution which was absolutely necessary to save these goods from the flood if it could be done. [1]
    [There is one very peculiar feature about this case. We have no information whether the goods were absolutely ruined, partially ruined or not. All we know is that the goods were not delivered. And if they were not delivered, through any fault of the defendant, the defendant is liable to the plaintiff in the value of the goods as indicated and uncontradicted. But if the failure to deliver was not on account of any fault whatsoever on the part of the railroad company, — if they did all, under the exigencies of the occasion, which they possibly could do to save those goods from the flood, they are not liable, even though the goods were ruined by the flood, and it becomes then your duty to simply ascertain whether the loss of these goods, or the nondelivery of these goods, was caused by any neglect on the part of the railroad company. If not, and the goods were destroyed by the flood, your verdict should be for the defendant. But if the goods could have been saved from ruin by the efforts and by the care of the defendant company, they were bound to exercise that care to save them from the flood, and if they did not and they could have, then the plaintiff is entitled to the damage which he has sustained. [2]
    [It has been shown to you that the company, in the exercise of prudence, raised their tracks three feet to avoid the result of floods, which they had learned from experience in the past. But yet, you have been told, too, that subsequent to that, it was their habit, notwithstanding the tracks had been raised, to remove the goods from that dangerous location in the presence of a flood or a coming flood, which was evidently the railroad company’s duty in this case. If they could have saved these goods from being destroyed or from being ruined it was their duty to do it, although there was no liability on them or their part under the bill of lading in cases of flood.] [3]
    [The defendant had a right to apprehend the flood, and they had a right to strengthen themselves from the best and most practical sources obtainable to instruct them as to the necessities of the occasion. It has been demonstrated to you that the best evidence is attainable from the weather bureau, as to the condition of the river which produced that flood and as to the possibility or probability of its coming up on their tracks. Is there any evidence before you that they solicited information from any source whatsoever so as to guide them in the duties that they owed to the plaintiff and to all their other shippers. If there is any such evidence, you will assimilate it, gentlemen of the jury, with the other evidence. I have no recollection of such. I have no recollection that they produce any testimony going to show that they sought from given sources what the probabilities would be with reference to this flood.] [4]
    [But if the goods could have been saved from ruin by the efforts and by the care of the defendant company, they were bound to exercise that care to save them from the flood, and if they did not and they could have, then the plaintiff is entitled to the damage which he has sustained, namely, the value of the cement, which is $222 and interest, making a total sum which counsel will give you. If you find for the plaintiff, find for that sum, including the interest, not so much money and interest, but just one sum, including the interest.] [5]
    Verdict and judgment for plaintiff for $236.98. Defendant appealed.

      Errors assigned were (1-5) above instructions, quoting them; (6-8) admission of evidence quoted in the opinion of the Superior Court.

      James B. Miller, with him Patterson, Sterrett & Acheson, for appellant.
    It is now settled by the great weight of authority as well as reason that evidence of subsequent repairs or precautions taken after the happening of the accident causing the injury is not admissible to prove antecedent negligence: Baran v. Iron Co., 202 Pa. 274.
    The defendant in such a case is liable only when it has failed to use ordinary care in anticipating and guarding against the flood, or act of God, which causes the injury: Grier v. Ry. Co., 108 Mo. App. 565; Morrison v. Davis & Co., 20 Pa. 171.

      Stewart M. Cunningham, for appellee.
    The tracks were raised prior to the flood in question, and if it was necessary before the repairs were made it was proper to show in rebuttal that it was still necessary: Stewart v. Road Co., 3 Pa. Superior Ct. 86.
    The evidence of the plaintiff was competent to rebut the inference that since the tracks were raised it was not necessary to remove the cars: Lederman v. Railroad Co., 165 Pa. 118.
    The burden of proof was on the defendant to show why the car was not delivered. The mere fact that there was a flood was not sufficient to relieve the defendant from liability or shift the burden of proof: Menner v. D. & H. C. Co., 7 Pa. Superior. Ct. 135; Penna.R. R. Co. v. Miller, 87 Pa. 395; Rhymer v. R. R. Co., 27 Pa. Superior Ct. 345.
    July 14, 1909:
   Opinion by

Orlady, J.,

The plaintiff brought an action in assumpsit to recover from the defendant the sum of $222, with interest from April 1,1907, this being the price paid for 600 bags of Portland cement, which were delivered in good condition to the defendant at Nazareth, Pa., for shipment to Turtle Creek, Pa. The testimony shows that the car in which the cement was carried, arrived at Turtle Creek on March 11, 1907, and was placed on a delivery siding. The next day an unexpected rise in the water of the creek submerged the tracks of the railroad company; the rainfall continued, and the height of the flood was reached on March 15, when the water began to subside. It was admitted that the cement was a total loss, and that it had not been delivered to the plaintiff, but what disposition was made of it by the defendant company does not appear.

On the trial the defendant contended that it was relieved from liability for any loss by reason of a clause in the bill of lading, as follows: “No carrier or party in possession of all or any of the property herein described, shall be liable for any loss thereof, or damage thereto, by causes beyond its control; or by floods, or by fire,” and adduced proof tó show that the rise in the water over the tracks was of such an unusual and extraordinary character, as to make it an unforeseen condition and equivalent as a defense to an act of God.

The facts in regard to the flood waters are not in dispute, and the testimony admitted on the trial, of which the defendant complains, was developed in rebuttal after the defendant had proved that the tracks of this particular part of the roadbed had been raised about three feet in the January preceding, as a precautionary measure to avoid any injury similar to that in the present case. The yardmaster at Turtle Creek testified as follows: “Q. Do I understand you to say that floods in Turtle Creek are usually caused by back water? A. Usually. I have seen floods, however, that came down the valley, cloudbursts and such matter. Q. In prior floods you always took the cars out? A. Yes, sir; at this flood the tracks were so much higher I didn’t think it necessary to take them out. Q. Have you taken them out since? A. No, sir.”

The plaintiff stated as follows, “We offer to show that since the track was elevated in the station, that they had nevertheless been in the habit of removing the cars. This in rebuttal to defendant’s testimony that they had not done so since the track was raised.” To which counsel for defendant objected, because the track had been recently elevated; which objection was overruled and the witnesses permitted to testify that in prior floods it was the custom of the defendant to remove the cars to a place of safety, which custom had prevailed after the tracks had been elevated whenever the necessity of such precaution was made manifest by the rising waters.

The weight of the authorities, as well as of reason, is that evidence of subsequent repairs or precautions taken after the happening of an accident causing the injury, is not admissible to prove antecedent negligence: 6 Thompson on Negligence, sec. 7871.

In Baran v. Reading Iron Company, 202 Pa. 274, this question is fully reviewed, and it is therein declared, that, “The admission of such testimony cannot be defended on principle. It is not more likely to show that there was negligence before the accident, than that the occurrence of the accident first suggested the use of methods or appliances not before thought of; it applies to conduct before an accident, a standard of duty determined by after-acquired knowledge; it punishes a prudent and well meaning defendant who guards against the recurrence of an accident he had no reason to anticipate, or who out of a considerate regard for the safety of others exercises a higher degree of care than the law requires.” The testimony to which objection is made was not offered to show the subsequent repairs or precautions taken after the happening of the accident, but to show that the defendant company did, after making the change in the tracks, remove to a place of safety, the cars that were in danger from flood waters after the tracks had been elevated. This change in the track construction was completed in January, as stated by a witness, in order “to keep the cars up out of the water, and we haven’t taken them out since.” The testimony was properly received in contradiction of defendant’s witnesses, as their testimony was very important.

The first, second and third assignments of error affect the degree of care required in such a case. The court charged the jury that “the plaintiff has taken voluntarily the burden to show negligence on the part of the defendant company, and is attempting to prove to you that although the defendant company would be relieved in the case of a flood, yet that does not relieve them from the duty of saving the goods from a flood if they possibly can, and as a matter of law, I say to you that if the defendant had notice from the elemental conditions surrounding it, from the rising of the river, the falling of the rain, and from the experience of its agents, if they had any, according to the evidence, they had the right to use it, and every precaution that was absolutely necessary to save these goods from the flood, if it could be done .... if they did all under the exigencies of the occasion that they possibly could do, to save these goods from the flood, they are not liable, but if the goods could have been saved from ruin by the efforts, and by the care of the defendant company, they are bound to exercise that care to save them from the flood. If they did not, and could have; then the plaintiff is entitled to recover damages which he has sustained.” Similar expressions are used several times in the charge.

The rule of duty is fairly stated in 1 Hutchinson on Carriers (3d ed.), 320: “If it appear that the agents of the road had used such diligence as prudent and skilled men engaged in that kind of business might be expected to use under like circumstances, to protect and secure the property confided to their care, the carrier ought to be excused.” And on page 307, “In general it may be stated that where the carrier by the exercise of reasonable diligence could have foreseen the happening of the event that caused the injury to the goods, and he failed to make use of the means at his command to guard against it, and the goods are thereby lost or injured, he will be liable, although such loss or injury would not have been but for the act of God:” Morrison v. Davis & Co., 20 Pa. 171; Roach v. Kelly, 194 Pa. 24; Stephenson v. Railroad Co., 20 Pa. Superior Ct. 157. In Shaughnessy v. Pittsburg, 20 Pa. Superior Ct. 609, this court by Rice, P. J., states, “ In an action for negligence where the defendant alleges an extraordinary flood as the cause of the loss and gives evidence to that effect, and witnesses for the plaintiff testify that many times before the stream had been higher than it was at the time of the accident, tho question whether the flood is an extraordinary one or not, is for the jury.’”

The plaintiff bases his right to recover not so much on the ground that there was not an extraordinary flood, as on the lack of ordinary care in permitting the car, which was loaded with his cement, to remain in a place of danger at least forty-eight hours after the waters had begun to rise, and, in not dealing with this cement as with other perishable goods, even after the tracks had been raised. The degree of care exacted by the court was greater than that required by the law, and for this reason, the judgment must be reversed.

The fourth assignment of error, relating to the character of the notiée obtainable from the weather bureau as to the conditions producing the flood, and as to the possibility or probability of the waters coming upon the tracks, is not material in light of the testimony, as it is shown that the weather bureau was entirely wrong in its prognostication in regard to this flood, and that its error was in the defendant company’s favor. This bureau is not of such reputed accuracy as to make its reports the sole basis of the right to recover. Like all statistical information which is founded on natural conditions and varying causes, it may be considered as evidence, but it is not conclusive.

The first, second and third assignments of error are sustained for the reasons above given. The judgment is reversed with a venire facias de novo awarded.


source: Caselaw Access Project

license: Public Domain

text:
    Safranski v. Seman, Appellant.

      Negligence — Infant—Contributory negligence of parent — Question for jury.

    1. In an action to recover damages for the death of a child twenty-two months old, run down by a wagon recklessly driven in a lighted, but little frequented street, the question of the mother’s contributory negligence is for the jury where it appears that the father of the child was a laborer, that the houses in the street where he lived had no yards, that the children in the neighborhood played in the street, that at the time of accident the mother of the child was sitting on a neighbor’s doorstep with the child on her knee, that the child’s attention was attracted to other children playing on the street, that the mother allowed her to go with them, and that shortly thereafter the child was run down by the wagon.

      2. When a parent makes reasonable efforts to guard his child from danger, and the child escapes, and without the knowledge of the parent, goes into a place of danger, the question of contributory negligence upon the part of the parent is for the jury.
    Argued April 27, 1909.
    Appeal, No. 152, April T., 1909, by defendant, from judgment of C. P. No. 2, Allegheny Co., April Term, 1906, No. 13, on verdict for plaintiff in case of Stanislaus Safranski v. John Seman.
    Before Rio®, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for death of child. Before Shaper, J.
    The facts appear by the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $288. Defendant appealed.

      Error assigned was refusal to enter judgment for defendant non obstante veredicto.

      Harry Diamond, of Diamond & Zacharias, for appellant.
    It was the duty of the trial judge to declare the mother guilty of contributory negligence: Johnson v. Railway Co., 160 Pa. 647; Glassey v. Ry. Co., 57 Pa. 172; Murray v. Ry. Co., 36 Pa. Superior Ct. 576; Karahuta v. Traction Co., 6 Pa. Superior Ct. 319; Sullenberger v. Traction Co., 33 Pa. Superior Ct. 12; Mahoney v. R. R. Co., 6 Phila. 242.

      C. W. Sypniewski, for appellee.
    The case was for the jury: Kroesen v. Ry. Co., 198 Pa. 26; Davidson v. Traction Co., 4 Pa. Superior Ct. 86.
    July 14, 1909:
   Opinion by

Orlady, J.,

This action was brought to recover damages which resulted from the alleged negligence of the defendant’s servant, in recklessly, carelessly and negligently driving the defendant’s team on River street in the borough of Braddock, so as to run over the plaintiff’s child, and causing injuries that resulted in the death of the child shortly thereafter.

The square in which the plaintiff’s house is located is a short one, having buildings erected on one side only, and there is an open space on the other which forms the bank of the Monongahela river. There are no yards about these houses, and the children in the neighborhood generally play in the street, which is not much traveled. It was testified that one butcher comes there, and a number of wagons deliver beer on Saturday evenings, and at irregular times a rag man and grocers’ wagons use the street. The accident happened on a Saturday evening between seven and eight o’clock. The plaintiff’s family consisted of himself, his wife and one child. The father was at home. The mother had taken the child, twenty-two months old, to visit a neighbor and was nursing the child on her knee, when some other babies who were playing on the street attracted the child’s attention, and the mother allowed her to go with them. In a very short time an open delivery wagon, drawn by one horse, came along and fan over the child. The father testified as follows: “There were some children playing in the street, and then when he, the driver of the wagon, got through unloading beer he turned his horse around, shook the lines, and instead of his horse trotting he went galloping past from Thirteenth to Twelfth street.” The mother, who was an eyewitness, testified, “ The children were on the other side of him, and he was running so dreadful fast, and just when we heard the noise, as he was running, one woman jumped up and said,' Run, children, or he will run over you,’ and then I jumped up and said, ' My God, he will run over all of them.’ He went running terribly, a terrible speed, and never stopped to see anything, just went on.” Other witnesses described his horse as going at a very rapid gait. The father and mother had a conversation with the defendant soon after the accident with reference to the speed of the horse, and when accusing the driver of reckless driving, the following conversation occurred: “ I accused him of fast driving. I said if he had not driven at such speed, I said I could have got hold of my child and saved it, and he made a statement that he pays for the use of the street, and that his horse don’t know how to travel slow.”

There was considerable dispute as to whether it was dark or not, and also as to the degree of traffic on the street. The court stated to the jury: “ The mother was bound to take reasonable care of the child, according to the circumstances. It is true these are poor people, and did not have any place in their back yard for the children to play; but the children were not in this case playing'on the street without being watched, or supposed to be according to the plaintiff’s account. The wife was out there with the child, supposed to be taking care of it, and it is a question for you whether or not you think, that under all the circumstances, considering the kind of a street it was and considering the time of day it was, the age of the child, and all other surrounding circumstances, whether she acted with reasonable care in allowing this child to run on the street as she did, because the evidence is that the child was hurt at the second door away from where she was sitting, some thirty feet or so away from the house. I say to you if that woman was not taking proper care of the child, under all the circumstances, then the plaintiff cannot recover, no matter whether the wagon was. going fast or not.”

The negligence of the defendant must be conceded, if the testimony of the plaintiff’s witnesses is to be relied upon at all, and the jury accepted their versions. The horse was evidently being driven at a rapid pace along a lighted street, on which children were playing, in disregard of such reasonable care as is exacted by the law. The defendant submitted but a single point, “Under all the evidence the verdict must be for the defendant,” which was refused. The record presents but a single assignment of error, “The court erred in refusing to grant a motion for judgment for the defendant non obstante veredicto.”

It is only in clear cases where neither the facts nor the inferences to be drawn from them are in doubt, that the court is warranted in withdrawing the question of negligence from the jury: Kroesen v. New Castle Elec. St. Ry. Co., 198 Pa. 26. The argument of the defendant is directed principally to the action of the court in submitting the question of contributory negligence to the jury. The decisions in this state are harmonious on this subject. Protection is a paternal duty. Entire failure to extend it must be negligence. Generally what is, and what is not negligence is a question for a jury. When the standard of duty is a shifting one, the jury must determine the duty, as well as find whether it has been complied with: Glassey v. Hestonville, etc.,Passenger Ry. Co., 57 Pa. 172; Davis v. Westmoreland Co. Ry. Co., 222 Pa. 356. A parent who sends a child of such tender age into a place of danger, without a protectoi’, is conclusively presumed to be guilty of negligence and cannot recover in an action for its death caused by the very dangerous agencies against which he should have guarded the child. The degree of protection required of the parent being in proportion to the helplessness and indiscretion of the child, it follows that a high degz’ee must be exercised during that period when the child is by law presumed to be incapable of appreciating and avoiding danger: Sullenberger v. Chester Traction Co., 33 Pa. Superior Ct. 12.

Many cases hold the parents to a very high degree of care in safeguarding their helpless children against manifest danger, but as stated by Judge Rice in Davidson v. Schuylkill Traction Co., 4 Pa. Superior Ct. 86: “ Whether it was a negligent act or not depends upon the circumstances, some of which are in dispute. It is not negligence per se like the failure to stop, look and listen before crossing a railroad track. The case therefore is a proper one for the application of the well-established principle, that when the measure of duty is ordinary and reasonable care, and when the degree of care varies according to the circumstances, the case of negligence is always for the jury. When a parent makes reasonable effort to guard his child from danger, and the child escapes, and without the knowledge of the parent goes into a place of danger, the question of contributory negligence upon the part of the parent is usually for the jury: Lederman v. R. R. Co., 165 Pa. 118; Pitts., Allegheny & Manchester Ry. v. Pearson, 72 Pa. 169. Taking into consideration the facts of this case, the humble home of a laborer without any yard or protected playground, facing a street infrequently used, and on a river bank, the mother exercising her natural as well as her legal duty in having the child in her immediate care, and but for a mere mordent relaxes her physical control of the baby to allow the child to play in her direct view out on an open street, where a number of other children of the same and greater years were engaged in playing in the twilight of a Saturday evening. This case was clearly for the jury to determine the question of her contributory negligence. The inquiry is a pertinent one, What are parents so circumstanced to do with their young children? They cannot be kept continually indoors. They should have healthful exercise in the open air, and all that the most exacting can demand, is that reasonable care according to the circumstances, shall be applied to protect the child from injury, and as well as one who is exercising a lawful use of the street, from liability for injuries that could be avoided. As we held in Murray v. Scranton Ry. Co., 36 Pa. Superior Ct. 576, the situation of the parents, the character of their home, the weather, the health of the children, their manner of living, and all attending surroundings are elements to be considered in disposing of this mooted question. In cases of such character it is safer to have the conclusion of the jury, in light of all the circumstances, rather than to dispose of it as a matter of law, which is founded upon undisputed facts or conclusive inferences. The case was properly and carefully submitted to the jury by the trial judge in a charge which carefully defined the duty both of the driver and the parent. The assignments are overruled. The judgment is affirmed.


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

      Negligence — Railroads—Grade crossings — “Stop, look and listen”— Question for jury.

    In an action against a railroad company to recover damages for the death of plaintiff’s husband, it appeared that at the time of the accident the deceased was driving alone a two-horse wagon, and that upon approaching a grade crossing he stopped, looked and listened at the usual and ordinary place for stopping. The evidence was conflicting as to what occurred afterwards. There were three tracks at the crossing, and a side track upon which cars were standing. The place where the deceased stopped was eight or ten feet lower than the railroad tracks. There was evidence that if the deceased had stopped at the edge of the track he could have seen 500 feet. The horses had cleared two tracks before the wagon was struck. The evidence tended to show that no whistle was sounded as the train approached the crossing. Held, that the case was for the jury and that a verdict and judgment for plaintiff should be sustained.
    Argued May 6, 1909.'
    Appeal, No. 73, April T., 1909, by plaintiff, from judgment of C. P. Somerset Co., Feb. T., 1906, No. 187, for defendant non obstante veredicto in case of Catharine Tressler v. Baltimore & Ohio Railroad Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Trespass to recover damages for death of plaintiff’s husband. Before Gillan, P. J., specially presiding.
    The facts are stated in the opinion of the Superior Court.
    Verdict for plaintiff for $1,500. The court subsequently entered judgment for defendant non obstante veredicto.

      Error assigned was in entering judgment for defendant non obstante veredicto.

      W. II. Ruppel, with him J. C. Lowry, for appellant, cited:
    Allen v. Willard, 57 Pa. 374; Lehigh Valley R. R. Co. v. Hall, 61 Pa. 361; Cleveland & Pittsburg R. R. Co. v. Rowan, 66 Pa. 393; Johnson v. R. R. Co., 70 Pa. 357; Penna. R. R. Co. v. Weber, 72 Pa. 27; Weiss v. Penna. R. R. Co., 79 Pa. 387; Penna. R. R. Co. v. Garvey, 108 Pa. 369; Davidson v. Ry. Co., 171 Pa. 522; Cannon v. Traction Co., 194 Pa. 159; Stover v. Penna. R. R. Co., 195 Pa. 616; Muckinhaupt v. R. R. Co., 196 Pa. 213; Elston v. R. R. Co., 196 Pa. 595; Ayers v. Pittsburg, C. C., etc., Ry. Co., 201 Pa. 124; Cromley v. Penna. R. R. Co., 208 Pa. 445; McCurdy v. Traction Co., 15 Pa. Superior Ct. 29; Salathe v. R. R. Co., 28 Pa. Superior Ct. 1; Finefrock v. Traction Co., 33 Pa. Superior Ct. 638; Davis v. R. R. Co., 34 Pa. Superior Ct. 388.

      W. II. Koontz, with him J. Q. Ogle, for appellee, cited:
    Urias v. R. R. Co., 152 Pa. 326; Penna. R. R. Co. v. Beale, 73 Pa. 504; Moore v. R. R. Co., 108 Pa. 349; Aiken v. R. R. Co., 130 Pa. 380; Ellis v. R. R. Co., 138 Pa. 506; Kraus v. R. R. Co., 139 Pa. 272; Meyers v. R. R. Co., 150 Pa. 386; Whitman v. R. R. Co., 156 Pa. 175; Connerton v. Canal Co., 169 Pa. 339; Ehrisman v. Ry. Co., 150 Pa. 180; Beynon v. R. R. Co., 168 Pa. 642; Holden v. R. R. Co., 169 Pa. 1: Kinter v. R. R. Co., 204 Pa. 497; Mankewicz v. R. R. Co., 214 Pa. 386.
    July 14, 1909:
   Opinion by

Orlady, J.,

The plaintiff’s husband was killed by the engine of an express train traveling west on the defendant’s road as it crossed the highway near a station at which this train did not stop. The deceased left his home early in the morning and drove to a grist mill near to the station. Having attended to his business there he .started to return home. The public highway crosses the railroad, which at that point consists of three tracks, one for east-bound trains, one for west-bound trains, and a side track upon which cars were standing at the time. After a train had passed the decedent started, to cross over and his wagon was struck, the horses escaping. A verdict was rendered in favor of the plaintiff, but subsequently the court entered a judgment non obstante veredicto in favor of the defendant.

The case was tried with great fairness. The principal controversy in the case was as to whether or not the west-bound train, which struck him, gave warning of its approach to the highway. It is conceded that the decedent stopped, looked and listened while the train which was standing on the track when he arrived had passed at a place where the highway was eight or ten feet lower than the railroad tracks, and which place was the usual and ordinary place for persons using the highway to make a stop for a view of the tracks in each direction.

The horses had cleared both tracks before the wagon was struck, and even if the driver had stopped at the edge of the track, and found a clear track of 500 feet (the distance he could have seen as testified by the defendant’s surveyor), it was for the jury to say whether it was reasonably safe for him to cross, there having been no whistle signal as claimed by the plaintiffs.

The conclusion of the court in entering judgment non obstante veredicto is founded largely on the testimony of two witnesses; the controlling fact seemed to be that the decedent did not leave his team and go forward to look along the track, and did not stop when on the first track. The difficulty with the conclusion lies in an examination of the testimony of these witnesses. One, J. M. Smith, testified that he saw the man drive up to the crossing and get killed by the through express train, and testified as follows: “ Q. If Mr. Tressler had stopped and looked along the track, he could have seen No. 47, could he not? A. If he had waited long enough he could, yes, sir. Q. If Mr. Tressler had stopped he could have seen the west-bound train coming? A. He could if he had waited a few minutes longer.” The other witness although within view of the accident was at least 1,500 feet distant. It was stated positively by several witnesses called for the plaintiff that no whistle was sounded as the express train approached the crossing, and a number of witnesses for the defendant testified that a signal was given from a tower station some distance away. The accident was in broad daylight and the decedent was familiar with the premises. He was alone in the wagon, driving two horses. The law on this subject has been stated many times, and the duty imposed upon the traveler has been laid down in unmistakable terms. The traveler is not only bound to stop, look and listen before passing on the tracks of the railroad, but is bound to exercise due care and watchfulness until he has crossed it. One who goes in front of a moving train which he had ample opportunity to see and avoid will be conclusively presumed to have been negligent: Ellis v. Penna. R. R. Co., 216 Pa. 415. Where the facts are simple, and the evidence by which they are presented is involved in no uncertainty, their legal value is for the court to determine: Davidson v. R. R. Co., 171 Pa. 522.

It is very difficult to describe the exact condition of affairs at the moment the plaintiff entered upon the first track. He did stop, look and listen and at the place where travelers usually stopped to look and listen. Thus far he did his whole duty. What he saw or should have'seen is in doubt under the circumstances. The character of the team he used, the view of the surrounding objects, the distance he had to cover before reaching the track, the time within which he had to make that passage, the character of the signal given, the speed of the train, and other matters which are necessarily involved in going over a grade crossing, must be considered before we conclude that the traveler was guilty of contributory negligence. To hold that in every instance and without exception a traveler must leave his team standing, however unprotected on the highway and walk ahead of it to look along the track before entering upon it, would be more likely to produce accidents in many instances than to prevent them. The roadway, the conveyance, its load and team and its driver (whether alone or having a person with him to secure the team while he would be away from it), must all be considered. Except in a clear case, the question of negligence, in the light of all the circumstances, together with the credibility of the witnesses who describe them, is wisely intrusted to the jury and not to the court. There has been no departure from the rule that if a driver cannot see by looking from the vehicle in which he is riding, he should get out and go forward to a place where he can see, and there should be no departure from it: Kinter v. R. R. Co., 204 Pa. 497; Mankewicz v. R. R. Co., 214 Pa. 386. But whether a driver who has stopped at the usual place for stopping, from which he has a fair view of the track for a reasonable distance, should go forward in advance of his team to another place to look, is a question to be determined by the circumstances of the particular case. It was stated by the present chief justice in Ely v. Railway, 158 Pa. 233, “Stopping is opposed to the idea of negligence, and unless, notwithstanding the stop, the whole evidence shows negligence so clearly that no other inference can properly be drawn from it, the court cannot draw that inference as a conclusion of law, but must send the case to the jury:” Calhoun v. Penna. R. R. Co., 223 Pa. 298. The rule that one who steps in front of a moving train which he could have seen if he had looked and listened, will be conclusively presumed to have been negligent, applies only to clear cases where no inference except that of negligence is possible from the facts: Sefcik v. Penna. R. R. Co., 223 Pa. 348.

After a careful examination of all the contradictory testimony in the case, and the reasonable inferences to be drawn from these disputed facts, this was a case for the jury and not for the court. The learned trial judge submitted the case in a plain and adequate charge. The plaintiff and defendant each submitted points which were fully answered, and the verdict of the jury was founded upon sufficient evidence. The judgment of the court below is reversed and judgment is now entered in favor of the plaintiff for the amount of the verdict, with interest and costs.


author: Henderson, J.,

text:
    Taylor v. Sauer, Appellant.

      Equity — Mandatory injunction — Preliminary hearing — Temporary stand — Obstruction of light and view — Parades—Parties.
    1. A preliminary injunction may be made mandatory, but the writ is only granted where the right is clear, where irreparable injury is likely to result or where the status quo between the parties should be restored. Such status is the last actual, peaceable, uncontested status which preceded the controversy.
    2. Where the plaintiff in a bill in equity occupies with his family the second story front rooms of a building facing with its windows on a street upon which there are to be a number of parades and exhibitions for a period extending over a week, such person is entitled to a mandatory injunction to compel the immediate removal of the upper portions of a stand obstructing his view, erected without his consent and against his express orders in his absence, although with the consent of the occupant of the first floor.
    3. A decree on a bill in equity will not be reversed because of the omission of a party in interest as a defendant, where the interest of such party was unknown to the plaintiff, but is disclosed by the answer, and such party had notice of the proceeding, was called as a witness, and so far as shown had not objected.
    Argued Dec. 18,1908.
    Appeal, No. 198, Oct. T., 1908, by defendants, from decree of C. P. No. 1, Phila. Co., Sept. T., 1908, No. 1,219, on bill in equity in case of Harry Taylor v. Jacob Sauer and William B. Truitt.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.

      Bill in equity for an injunction.
    Brégy, P. J., and Magill, J., filed the following opinion:
    The evidence taken clearly shows that the stand was erected in front of the windows of the plaintiff’s residence, to wit: the second story of the building, without even the pretense of a right to do so. According to the testimony it was done against his protest and after inducing him to believe his rights would not be trespassed upon.
    The reply made by the defendants, through counsel, is that we have no power to issue a mandatory injunction in a preliminary hearing.
    This stand is to be used by the defendants, or some of them, to make money by the sale of seats upon it. It is to be used during' Founders’ Week only and then removed. If we cannot give the plaintiff the relief he asks he must submit for ten days to the blocking up of his windows and for a week be deprived of his view of the passing show upon the street, while the wrongdoer, who does not pretend to have any right to do what he has done, makes his dollars ou't of the outrage.
    If this is the law it is not our view of it. This unlawful structure is only a temporary one, and if it cannot be reached in a preliminary hearing it never can be. We do not believe that in a case like this a court of equity is powerless.
    We therefore order and direct that all the seats upon this stand which are so placed as to bring the bodies of persons occupying the same above the base or in front of the second story windows of the building occupied by and in the use of the plaintiff shall be removed, of the full width of the building, by six o’clock p. m. October 2, 1908.
    And it is further ordered that the defendants shall not in any way interfere with or obstruct the view from or the light and air supplied by the said several windows.
    Security to be entered by the plaintiff in the sum of 1200.

      Error assigned was the decree of the court.

      William A Carr, with him W. Horace Hepburn and Sidney L.

      Krauss, for appellants.
    Upon a preliminary hearing a mandatory injunction should not be granted in a case of this character: Audenried v. Phila. & Reading R. R. Co., 68 Pa. 370; Fredericks v. Huber, 180 Pa. 572; Chester Traction Co. v. Phila., etc., R. R. Co., 174 Pa. 284; Traction Co. v. Shenandoah, 23 Pa. C. C. Rep. 222.
    A court of equity will not entertain a bill to restrain a trespass of a temporary character, and for which the complainant would have an adequate remedy at law: Bispham’s Equity, secs. 435, 436; Minnig’s App., 82 Pa. 373; Clark’s App., 62 Pa. 447; Shell v. Kemmerer, 13 Phila. 502; Grubb’s App., 90 Pa. 228; McConahy v. Western Allegheny R. R. Co., 31 Pa. Superior Ct. 215.
    All the parties in interest were not made parties to this proceeding, and therefore the court should not have.awarded an injunction until all the parties were brought in and had their day in court: Fletcher’s Equity Pleading and Practice, 35; Story’s Equity Pleading, secs. 75, 76, 76a; Gilkeson v. Thompson, 210 Pa. 355; Alexander’s App., 20 W. N. C. 283; Phila. v. River Front R. R. Co., 133 Pa. 134.

      Simon C. Raken, for appellee.
    Special injunctions are granted for prevention of irreparable injury as in case of waste, or take it in the case at bar the shutting off of light, air and vision of appellee, where the preventive aid of equity is the ultimate and only relief sought: Audenried v. R. R. Co., 68 Pa. 370; Washington Boro. v. Steiner, 19 Pa. Superior Ct. 498.
    It is a matter of discretion with the court of equity to grant an injunction: Messner v. Railway Co., 13 Pa. Superior Ct. 429; Liggett v. Kaufmann, 17 Pa. Superior Ct. 631; Snyder v. Brown, 197 Pa. 450.
    An injunction is binding on all who have actual knowledge of it, although not named therein or served therewith: Shiffer v. Youngstown Bridge Co., 2 Lackawanna Jur. 288; Patterson v. Wyoming Valley District Council, 31 Pa. Superior Ct. 112; York Mfg. Co. v. Oberdick, 15 York, 39; Titusville Iron Co. v. Quinn, 13 Pa. Dist. Rep. 416; Patterson v. Building Trades Council, 14 Pa. Dist. Rep. 843.

      July 14, 1909:
   Opinion by

Henderson, J.,

That a preliminary injunction may be made mandatory is shown by many authorities: Cooke v. Boynton, 135 Pa. 102; Black Lick Mfg. Co. v. Gas Co., 139 Pa. 448; Fredericks v. Huber, 180 Pa. 572; Whiteman v. Gas Co., 27 W. N. C. 205; Liggett v. Kaufman, 17 Pa. Superior Ct. 631; Washington Boro. v. Steiner, 19 Pa. Superior Ct. 498; Whitecar v. Michenor, 37 N. J. Eq. 6; Broome v. Telephone Co., 42 N. J. Eq. 141; Toledo, etc., Ry. Co. v. Penna. Co., 54 Fed. Repr. 730; Central Trust Co. v. Moran, 56 Minn. 188; Van Zile, Equity, sec. 401. The writ is only granted where the right is clear; where irreparable injury is likely to result or where the status quo between the parties should be restored. This status was said in Fredericks v. Huber, 180 Pa. 572, to be the last actual, peaceable, uncontested status which preceded the controversy. The practice in many instances of anticipating the action of courts of equity and acquiring a position of advantage against the rights of innocent parties rendered it necessary that the rule as to mandatory injunctions be extended to apply to such cases in order that the courts might not seem to reward wrongdoers who were diligent. If the defendants here are within the class referred to, the action of the court was in accord with the principle stated. That the plaintiff was in peaceable possession of the premises occupied by him and that all of the windows of the tenement which he occupied fronting on Broad street were practically closed up is clearly established. It is likewise shown that the act of the defendants was without any pretense of right. It was not alleged in the answer filed nor in the testimony of the defendants at the preliminary hearing that they had any legal warrant for closing up these windows. Their conduct was, therefore, inexcusable. Its effect was to exclude light and air from the plaintiff's home and to shut off his view along the street. An important part of his right of view was the opportunity to observe the numerous exhibitions and parades which constituted the chief features of the celebration held in the city that week. The comfort and enjoyment of the plaintiff and his family were greatly impaired if not destroyed and the injury thus received was of a kind which could not adequately be compensated in damages. It would be difficult to develop a theory on which a jury would be able to say what pecuniary compensation one should have for the loss of light, free circulation of air and the privilege of viewing unusual spectacles presented from day to day on the avenue in front of his residence. There was evidence, moreover, that the plaintiff was induced by representations of the defendants to assume that there would be no interference with the part of the building which he occupied nor any obstruction of his windows, and that the stand was erected in one day during his absence from home after he had notified the defendants not to build in front of his windows. The stand was erected for the profit of the defendant, Sauer, and one Burer who had leased the privilege from Truitt, the other defendant, who occupied the first floor of the building. It was contended on the appeal that this injunction could not be lawfully granted and that the plaintiff’s only remedy is by an action at law. We are unwilling to concur in this proposition. It is one of the exceptional cases where the defendants were wholly without right, where the title of the plaintiff is clear and where the status quo was changed by the defendants in the absence of the plaintiff after he had been led to believe that there would be no interference with his rights. He was, therefore, entitled to be restored to the condition existing before the stand was erected in front of his windows. Moreover, the structure put up was clearly a nuisance. It interfered with the comfortable enjoyment of the premises and if permanently there would probably have rendered his rooms untenantable. True, it is said that the structure was temporary and was to be taken down at the end of the celebration and that, therefore, there was not jurisdiction in equity to abate the nuisance. On the facts as presented we are not willing to say that the plaintiff must suffer this wrong and resort to the slow process of an action at law for his remedy. Such a proceeding would not furnish adequate relief, and inasmuch as the defendants were without excuse and were heard by themselves and their counsel after their answer was filed no substantial reason appears why the decree should not have been made as presented on the record.

It is said that one of the parties really interested in the stand was not made a defendant. That was because he was not known to have been a partner in the enterprise. However, he had notice of the proceeding, was called as a witness and so far as has been shown is not objecting. His name can be added as a party defendant if that is necessary.

The specifications of error are overruled and the appeal dismissed at the cost of the appellants.


text:
    Matteson v. New York Central & Hudson River Railroad Company, Appellant.

      Railroads — Bridges — Defective construction of bridge — Overflow of land — Negligence—Evidence—Damages.
    1. A presumption of care arises in favor of a railroad company in constructing a bridge in the exercise of its franchise as a public corporation. It does not follow that a landowner is entitled to recover from a railroad company merely from the fact that a stream is obstructed in the construction of a bridge by the formation of a dam and the consequent overflow of his land. All that the company is bound to do is to anticipate and provide for the magnitude of ordinary floods with their usual ice and drift. It is not bound to foresee what is extraordinary.
    2. In such a case the railroad company is bound to take notice of the size of the stream, the height of its banks and the extent of the watershed and to exercise the requisite skill to adopt plans necessary to avoid obstruction to the flow of the stream in ordinary conditions, and the untoward consequences of the formation of a dam by the accumulation of ice or drift in ordinary freshets.
    3. Where there is evidence tending to show that the effect of the obstruction at a railroad bridge was to change the course of the current and give it a direction below the bridge, a landowner may recover for any injury caused by the overflow resulting from a change of the course of the stream caused by the presence of ice and drift above the bridge, but he cannot recover for an injury caused by any other water flowing from the channel below the bridge.
    4. Where an injury to land from an overflow of a stream caused by the negligent construction of a railroad bridge is irreparable, depreciation in value of the property is the measure of damages. If the injury be remediable but the costs of repair would be greater than the diminution in the market value, the latter is the correct measure of damages. Compensation for the loss is that to which the plaintiff is entitled.
    5. Where in such a case witnesses for the plaintiff familiar with the situation and the value of land in the vicinity based their estimate of value on that knowledge, it is immaterial that they were not questioned as to the value of the land before and after the injury.
    6. A witness who had lived within two and one-half miles of land injured by a flood, for a period of forty years, had driven by it frequently and had seen it right after the flood, is competent to express an opinion as to the extent of the plaintiff’s injury; but witnesses who had not seen the land before the flood and did not have any knowledge of the condition of the soil are not qualified to speak in regard to its fertility.
    7. Where a witness testifies that he is acquainted with farm values in the vicinity, and that the market value of plaintiff’s land was a sum stated by him, he may be asked on cross-examination whether he did not know of a sale of similar land in the neighborhood at a much higher price.
    Argued Feb. 23, 1909.
    Appeal, No. 12, Feb. T., 1909, by defendant, from judgment of C. P. Tioga Co., Sept. T., 1904, No. 302, on verdict for plaintiff in case of Lucian A. Matteson v. The New York Central & Hudson River Railroad Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for injuries caused by the flowing of land from the alleged negligent construction of a railroad bridge.
    Defendant presented, inter alia, the following points:
    1. If the jury should find from the evidence, that any portion of the damages to plaintiff’s farm was caused by the water leaving the river at a point below and south of the Burlingame bridge, that then, in that case, the defendant is not liable in damages for any of the damages so occasioned. Answer: As a general proposition that is correct; but, we cannot affirm it in this case, for the reason that the plaintiff alleges that the filling up of the spaces between these piers turned a large body of water on to the east bank of the river, and that the two spaces that were left open at the east end of the bridge were not sufficient to carry the water, and thus turned it towards the east end by the filling of these spaces and that this water poured over there in such volume that it struck against the east bank just below the east end of the bridge and washed a hole out of that bank, and through that hole flowed down over the Burlingame farm and on to the lands of the plaintiff and did the damage complained of. That is the allegation of the plaintiff.
    And if you find that to be the fact; that this water was so turned by reason of these spaces being blocked up and carried to the east end of the bridge, that finding should be an element in the final estimate of the damages that this plaintiff has sustained, if you find that he has sustained any at all by the defendant’s negligence. [2]
    2. That according to the uncontradicted evidence in this case a considerable portion of the damages sustained to plaintiff’s farm by each of the floods complained of was caused by water which left the river at a point below the Burlingame bridge; therefore, the defendant is not liable for any portion of the damages to the plaintiff so occasioned. Answer: This as a general proposition is correctly stated. It involves the same question involved in the first point. We cannot affirm this point. As we said before, the plaintiff alleges that the stopping up of the spaces in the stream turned the water to the east end of the bridge in such a volume that it washed a hole in the bank immediately south of the east abutment of the bridge and through that hole flowed down over the land. Now, if any water escaped from the bed of the river below the bridge other than we have designated in answer to the first and second points, for that the defendant would not be liable. [3]
    6. That in any, and every case, in fixing the amount of a verdict in this case, they must leave out of consideration all damages caused by water which left the river at a point below the bridge in question. Answer: We have already answered that point, in what we have said in relation to the first and second points; and for the reasons there given this point is refused. [4]
    7. There is no evidence in this case that the bridge in question was negligently constructed; neither is there any sufficient evidence that the bridge in question was insufficient to carry the water in case of ordinary floods; therefore, your verdict must be for the defendant. Ansiver: That point is refused. To affirm that point would be to take this ease away from the jury and decide as a matter of law that the plaintiff could not recover. We think there are questions of fact here for you to decide and we shall submit the case to you. [6]
    8. That the evidence of the plaintiff shows that the bridge in question would have carried the water at the flood, of February, 1902, except for the accumulation of ice; there being no sufficient evidence that the accumulation of ice was due to the defendant's negligence, there can be no recovery against defendant company for damages occasioned by this flood. Ansioer: An affirmance of this point would require us to take away from the jury all question about the February flood and decide that the plaintiff could recover nothing for any damages that came from that flood, if any did come. That we are not disposed to do. The point is refused. [7]
    9. The evidence of the plaintiff shows that the bridge would have carried the water at the July flood, 1902, except for the mass of driftwood, consisting of trees, hay and other flood trash; and there being no evidence that the accumulation of such flood trash was due to the negligence of the defendant, there can be no recovery against the defendant for damages sustained by that flood. Answer: That point is refused. We are going to submit the question to you: Whether or not this bridge was properly constructed; whether or not those piers placed in the river by this defendant left a vent under the bridge sufficient to permit the flow of water in an ordinary flood with the debris that naturally accompanies high water. [8]
    11. That under all of the evidence in the case the verdict of th> jury should be for the defendant.
    This point is refused. We think there are questions of fact here for you to decide. [9]
    The court charged the jury in part as follows:
    [There was something said on the trial about restoring that land to the condition it was in before the floods; we permitted that evidence to go to you, but, at this time in this case we do not consider it of much consequence, because the witnesses who have testified on the question of what it would cost to put the land in the condition it was in before the flood, also testify that the- amount it would take to do that was the amount that the plaintiff was damaged; so it is after all a question of damages.] [10]
    Verdict and judgment for plaintiff $1,447 60 Defendant appealed.

      Errors assigned among others were (2-4, 6-10) above instructions, quoting them; (12-18) rulings on evidence and the qualification of witnesses sufficiently set forth in the opinion of the Superior Court.

      E. H. Owlett and 8. F. Channell, with them Walter Sherwood, for appellant, cited:
    Beringer v. Sunbury, etc., R. R. Co., 203 Pa. 516; Braine v. R. R. Co., 218 Pa. 43; Eshleman v. Martic Twp., 152 Pa. 68.
    A. B. Dunsmore, with him C. H. Ashton and Merrick & Young, cited:
    Pittsburg, etc., Ry. Co. v. Gilleland, 56 Pa. 445; Baltimore & Ohio R. R. Co. v. School Dist., 96 Pa. 65; Brown v. Pine Creek Ry. Co., 183 Pa. 38; Riddle v. Delaware County, 156 Pa. 643; Schuylkill Nav. Co. v. Thoburn, 7 S. & R. 411; Weaver v. Berwind-White Coal Co., 216 Pa. 195.
    July 14, 1909:
   Opinion by

Henderson, J.,

The argument of the appellant directs our attention first to the complaint variously set forth in the sixth, seventh, eighth and ninth assignments that the case was submitted to the jury without evidence on the part of the plaintiff that the defendant’s bridge was negligently constructed or that the injury complained of was attributable to any fault therein which ought to have been avoided. The right of the defendant to maintain a bridge over the stream is not questioned, nor can it be disputed that there is a presumption of care in favor of a railroad company which constructs a bridge in the exercise of its franchise as a public corporation. It does not follow, therefore, that the plaintiff is entitled to recover merely from the fact that the stream was obstructed by the formation of a dam and the consequent overflow of his land. No testimony of experts was offered by the plaintiff bearing on the alleged neglect to build an adequate bridge; but there was evidence on which the court was justified in submitting to the jury the question whether the defendant had performed its duty in this respect. A former bridge in the same location had been burned, and the structure complained of was erected for temporary use. The width of the stream was about 220 feet and there were located in that space nineteen or twenty piers composed of piles upon which stringers for the support of the ties were placed. These piers, according to the evidence presented by the plaintiff, were set at an angle of about thirty degrees with the line of the current at usual high water and the spaces between the piers were estimated by different witnesses to be from eight to fifteen feet. The spans of the permanent bridge built to replace that which was burned were sixty feet in length. Common observation would suggest that a structure of this character in a stream like the Cowanesque river might be an obstruction to the flow of water and the accompanying drift in case of floods, and it would not seem to be necessary that experts be called to satisfy a jury of that fact. The action of streams at high water and the requirements of ventage capacity at bridges are so generally known that defects of construction in some instances may be obviohs from a description of the bridge and the stream, and in this case we think the jury might properly determine from the evidence whether the conditions were so plainly dangerous as to admit of the inference of negligence. The defendant was bound to anticipate and provide for the magnitude of ordinary floods with their usual ice and drift. It was not bound to foresee what was extraordinary; provision for the contingencies of ordinary floods would be a fulfillment of its obligation. The size of the stream, the height of its banks and the extent of the water shed were conditions of which the defendant was bound to take notice. The situation called for the exercise of the requisite skill to adopt a plan necessary to avoid obstructions to the flow of the stream in ordinary conditions and the untoward consequences of the formation of a dam by the accumulation of ice or drift in ordinary freshets. Whether the floods by which the plaintiff was injured were extraordinary or usual was a matter of dispute at the trial, but there was abundant evidence from which a jury might find that the flow of water was not greater than was frequent in that stream, and at the occurrence of each of the floods in January and July of 1902, the stream was so obstructed at the piers, in the first instance by ice and in July by hay and other drift, that a large volume of water flowed out of the channel and onto the plaintiff’s land. The court submitted to the jury to find whether the floods were extraordinary and whether the bridge was adequate to permit the flow of the water in the channel at ordinary stages of flood, añd the verdict of the jury was against the defendant on both of these questions. It must be taken as established, therefore, that sufficient provision was not made for the stream when the structure was erected. In the view which we take of the case there was' evidence supporting this finding. The case of Berninger v. Sunbury, etc., R. R. Co., 203 Pa. 516, cited by the appellant, grew out of an entirely different state of facts from that now before us. There the bridge was a permanent structure and was shown to be sufficient for all ordinary conditions of the stream; it had three piers in a length of 182 feet. The stream was about fifty feet wide and had a rapid fall. The plaintiff’s testimony showed that the vents in the bridge had ample capacity for any ordinary flood and any ordinary ice formation on the surface, and that while there had been floods in the creek there had been none since the bridge was built as bad as the one which caused the injury. In the present case no attempt was made to show that the bridge was properly constructed considering the character of the stream, and all of the plaintiff’s evidence goes to show that it amounted to a serious obstruction.

The second, third and fourth assignments complain of the answers of the court to the defendant’s first, second and sixth points which are predicated of evidence that part of the injury to the plaintiff was caused by water which flowed onto his land from the stream at a point below the bridge, and requested the instruction of the court that the plaintiff could.not recover for damage thus caused. The court refused the points as applicable to the case because of evidence introduced that the presence of the ice and drift at the bridge forced the water toward the east end of the bridge and this water poured through two or three of the spaces at that end in such volume that it struck the east bank below the end of the bridge and washed a channel in the bank through which it flowed onto.the Burlingame farm and thence onto the land of the plaintiff. The jury was instructed, however, that the plaintiff could not recover for any injury caused by water which flowed from the channel below the bridge unless they should find that such overflow was caused by the change of the course of the stream owing to the presence of the ice and drift above the bridge. This instruction was not erroneous as there was evidence tending to show that the effect of the obstruction at the bridge was to change the course of the current and give it a direction below the bridge as indicated in the answer of the court to the plaintiff’s first point.

Objection is made to a portion of the charge of the court as set forth in the tenth assignment with reference to evidence on the measure of damages. The plaintiff proceeded to show the amount of his damage on the assumption that there was a permanent injury to the land, and the witnesses were asked without objection by the defense what the amount of that damage was. Testimony had been previously introduced that the plaintiff’s two fields on the north and south sides of the railroad had been badly gouged and washed by the floods; that the top soil was carried away and long excavations from one to five feet deep made in the earth. One of the fields contained about three acres and the other about six, and the descriptions by the witnesses of the injury done showed a serious permanent injury to the land. What the plaintiff proved was the actual damage to the land. This was the method adopted in Weaver v. Berwind-White Coal Company, 216 Pa. 195, and is supported by that and other cases. Where the injury is irreparable depreciation in value of the property is the measure of damages. If the injury be remediable but the cost of repair would be greater than the diminution in the market value, the latter is the correct measure. Compensation for the loss is that to which the plaintiff is entitled. The witnesses for the plaintiff were not questioned expressly as to the value before and after the injury, but the course of inquiry shows that their estimates of the damage were made on that theory. They were familiar with the situation and the value of land in the vicinity and based their estimates on that knowledge. Whether, therefore, the rule applied in McGettigan v. Potts, 149 Pa. 155, and Noonan v. Pardee, 200 Pa. 474, that the actual damage was the measure of the plaintiff’s right of recovery or that the difference in market value before and after the injury determined the amount to be recovered as applied in Fulmer v. Williams, 122 Pa. 191; Williams v. Fulmer, 151 Pa. 405; Thompson v. Traction Co., 181 Pa. 131, the plaintiff’s evidence enabled the-jury to find the amount of the actual loss. The defendant introduced evidence tending to show that the land might be restored by cultivation to a condition equally as good as that which had existed before the floods; that its fertility could be renewed and that the plaintiff’s damage was the amount which it would cost to produce this restoration. The comment of the court as set forth in the tenth assignment related to this evidence and amounted to nothing more than an observation that the defendant’s witnesses made the basis of their estimate of damages the cost of putting the land in the condition it was in before the floods. This did the defendant no harm. Indeed, the defendant’s witnesses did not testify that the land could be put in its former condition. What it proposed to show and did show by some witnesses was that it would be practicable to restore the surface of the land to a condition equally as good for farming as existed before the flood and that the fertility of the washed land could be restored to a condition equally good with that of the remaining surface soil. This was a very different proposition from that of showing what it would cost to place the land in its former condition. It was not seriously contended on the trial that this could be done. The injury might be amended and it was the cost of such amendment which the defendant showed. If the plaintiff could not be placed in his former condition and the defendant caused his injury he is entitled to damages equal to the actual depreciation in the value of his land.

We do not find reversible error in the admission of the evidence of the witness, Wagner. He had lived within two and one-half miles of the land for forty years; he drove by it frequently on two roads and saw it right after the flood. He had some knowledge therefore, as to the extent of the plaintiffs injury. It will be observed, moreover, that his estimate of damage was lower than that of the other witnesses for the plaintiff and his lowest estimate much less than the verdict. The offers of proof by the witnesses Matson and Kiley as set forth in the thirteenth, fourteenth, fifteenth, sixteenth and seventeenth assignments were properly rejected. The proposition was to show by these witnesses that the surface of the land washed could be made so it could be worked as easily as any portion of the farm and be brought to as high a state of productiveness as the corn and tobacco fields. The witnesses had not seen the land before the floods and did not have any such knowledge of the condition of the soil as to qualify them to speak in regard to its fertility. Moreover, it was not proposed to put the land in the condition in which it was before the floods, and the offers were not competent for any purpose in the issue tried.

Charles M. Wood was called as a witness for the defendant and testified that he was acquainted with farm values in the vicinity and that the market value of the plaintiff’s land was $100 an acre. On cross-examination he stated that he knew of sales of land in the neighborhood. He was then asked if he did not know of a sale of tobacco land just below Knoxville in that neighborhood at $4,000 for seven acres. He admitted that the plaintiff’s farm was a good tobacco farm before the floods. This inquiry was competent for the purpose of testing the knowledge of the witness and ascertaining the basis on which he fixed the value of the plaintiff’s land. We think the appellant has not presented any substantial complaint as disclosed by the record of the trial.

The judgment is therefore affirmed.


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    Hickman’s Estate.

      Equity — Decree—Judgment—Recording act — Judgment index — Deed.
    1. Where a son accepts in good faith a deed of land from a weak-minded father for the purpose of protecting the father’s interest, and thereafter pays judgments and charges against the land, and after the father’s death all of the other heirs join in a bill in equity to secure the cancellation of the deed, the court in decreeing cancellation will direct that the advances shall be repaid the son and until repaid, shall remain a charge upon the land. If the land is subsequently sold in partition proceedings the charges will be payable out of the proceeds; and it. is immaterial that the decree was entered in the judgment index against the heirs of the decedent without naming them specifically. The recording act does not apply to the parties in such case; but even if it did, they had as parties in the equity suit actual notice of the decree, and were therefore bound by it.
    2. Even a party entitled to notice from the judgment docket may receive it from some other source and be bound. He is not required to look elsewhere and cannot be affected by constructive notice unless the entry in the docket conform to the legal requirements, but actual notice to such party before his interest attaches affects him.
    Argued April 20, 1909.
    Appeal, No. 173, April T., 1909, by H. C. Sayers, Jr., from decree of O. C. Greene Co., May T., 1906, No. 2, overruling exceptions to auditor’s report in Estate of-Solomon Hickman, deceased.
    Before Hice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed..
    Exceptions to report of Walter O. Montgomery, Esq., auditor.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in dismissing exceptions to auditor’s report.

      A. H. Sayers, for appellant.
    The'rule that land ceases to.be an asset for the payment of decedent’s debts upon the expiration of two years without suit brought, applies in favor of heirs : Cooper’s Est., 206 Pa. 628; Oliver’s App., 101 Pa. 299.
    At the end of the two-year period the lands of the decedent are discharged from the lien of the debts and are- not assets for the payments of such debts whether in the hands of the heirs or devisees or purchasers: Kerper v. Hoch, 1 Watts, 9; Oliver’s App., 101 Pa. 299; Cobaugh’s App., 24 Pa. 143; Crawford’s Est., 221 Pa. 131; Henry’s Est., 34 Pa. Superior Ct. 597; Koering’s Est., 34 Pa. Superior Ct. 425; Engle’s Est., 22 Lanc. L. R. 261.

      James J. Furman, with him Challen W. Waychoff, for appellee.
    July 14, 1909:
   Opinion by

Henderson, J.,

The appellant’s objection to the allowance of the claim of the administrator of Stephen D. Hickman, is that the decree out of which it arises was entered more than two years after the death of Solomon Hickman and that if it is to be treated as a judgment against the decedent’s estate it is not indexed in compliance with the provisions of the statute. The claim grew out of a proceeding in equity in which all the other heirs of Solomon Hickman filed a bill against Stephen D. Hickman praying for the cancellation of a deed delivered to the latter by Solomon Hickman for the conveyance of a farm on which the grantor then lived. The court found in that proceeding that Solomon Hickman was of weak mind because of old age at the time the conveyance was made and, therefore, incompetent to enter into such a contract. It was further found as a fact that the grantee was free from any fraudulent intent in accepting the conveyance, and was acting with good motives for the protection of his father’s property. The decree was for the cancellation of the deed and that the estate of Stephen D. Hickman, who had died while the litigation was pending, be reimbursed in the sum of $921 which amount was advanced by him while he held the title, in payment of three judgments entered against Solomon Hickman and a debt of $349 due to Archibald Hickman, a son of the decedent, the whole amounting with interest to $1,248.25. It was further decreed that that sum “ be entered'as a judgment against the lands of Solomon Hickman, to be paid as a debt’ of said estate out of the proceeds of said lands.” This decree was entered in the judgment index in the prothonotary’s office against “Solomon Hickman, Heirs of, No. 65, In Equity.” The case is treated in the argument of the appellant as one against the estate of a decedent for the collection of a debt, but the record does not exhibit it in that character. The bill in equity was not brought against the estate of Solomon Hickman. All of his heirs but the defendant were the actors in that case, and the bill was filed several months after Solomon’s death. They sought to recover the title to the farm which their ancestor had conveyed to the defendant, and while sufficient cause was shown to justify the court in granting the prayer of the complainants it was at the same time found by the court that the defendant had an equity arising out of the circumstances attending the conveyance to him which gave him an equitable lien for the amount paid out by him in discharge of incumbrances against the land and other indebtedness of the grantor. This claim of lien was set up in the answer filed in the equity case and was enforced by the court in the final decree. The land was thereby specifically charged with the claim and payment decreed to be made therefrom. From this decree no appeal was taken. It is a rule generally accepted that when one goes into a court of equity to be relieved against a contract not obtained by positive fraud but forbidden by law relief will only be granted on condition that he surrender any advantage obtained out of the contract. He must be just before he can ask equity. In accordance with this general principle it has come to be the doctrine of courts of equity that when a bona fide possessor of property improved its condition under an honest belief of ownership and the real owner is compelled to come into a court of equity to recover his title that court will require him to pay for such improvements so far as they were permanently beneficial to the estate and enhanced its value. Such was the rule applied by Chief Justice Marshall in Harding v. Handy, 24 U. S. 103, which was, -like the one before us, a bill for the cancellation of deeds made by the grantor who was of feeble mind, the grantee having incurred charges for the maintenance of the grantor during his lifetime and for repairs and improvements made on the real estate. In Miner v. Beekman, 50 N. Y. 337, taxes and other sums advanced in relief of the land were decreed to a defendant holding under a defective title growing out of the foreclosure of a mortgage. In McLaughlin v. Barnum, 31 Md. 425, a similar decree was made in favor of an administrator who bought at his own sale and whose title was held to be void for that reason. Sands v. Codwise, 4 Johns. 536, is to the same effect. In this state McCasky v. Graff, 23 Pa. 321; Skiles’s App., 110 Pa. 248, and Putman v. Tyler, 117 Pa. 570, are some of the cases which hold the same doctrine. The decree in the equity case was in harmony with this principle and subjected the land which the plaintiffs in the bill claimed to the payment of the amount expended by Stephen D. Hickman in aid of the estate. That decree is binding on all the parties in interest. It is not alleged that rights of an innocent purchaser without notice have arisen, and the form of the indexing of the decree is, therefore, not material on the facts presented. The validity of the judgment as between the parties does not depend upon its entry in the judgment docket. That docket forms no part of the true record of the court. Its use as authorized by the Act of March 29, 1827, P. L. 154, is to give notice to purchasers, subsequent lien creditors and other parties interested. A defective entry in the judgment docket, therefore, merely fails to give notice. But even a party entitled to notice from the judgment docket may receive it from some other source and be bound. He is not required to look elsewhere, and cannot be affected by constructive notice unless the entry in the docket conform to the legal requirements, but actual notice to such party before his interest attaches affects him: Ridgway, Budd & Co.’s App., 15 Pa. 177; The York’s Bank App., 36 Pa. 460; Stephen’s Executors’ App., 38 Pa. 9. The heirs in the equity proceeding received the benefit of the cancellation of the deed and they took that benefit with the burden of a repayment to Stephen D. Hickman of the amount which he had paid to relieve his father from his indebtedness and the land from its liability therefor. The proceeding was not one against the legal representatives of the decedent for the recovery of a debt. Whether such a claim could have been maintained or not we need not now consider, but when the heirs of Solomon Hickman found it necessary to go into a court of equity tp secure a cancellation of the deed they subjected themselves to the liability of being required to pay what Stephen D. Hickman had advanced. This being the state of the record the orphans’ court properly took notice of the judgment entered in the equity case and on the distribution of the fund raised by the partition sale appropriated the amount so decreed to Stephen D. Hickman’s estate before distributing the shares to the heirs or their vendees. The sale in partition worked a conversion of the real estate, and the forty-ninth section of the Act of March 29, 1832, P. L. 190, provides for the appointment of an auditor and for the application of the fund to any liens or incumbrances on such real estate affecting the interests of the parties. In such distribution a judgment creditor of an heir is entitled to payment before distribution of the fund. The jurisdiction of the orphans’ court was invoked by the heirs and the fund produced by their action is in the hands of the court. That court has exclusive jurisdiction over the question of disbursement, with power to decide all questions necessary to a proper distribution: Kittera’s Est., 17 Pa. 416; Ashford v. Ewing, 25 Pa. 213; Lucas’s App., 53 Pa. 404; Steel’s App., 86 Pa. 222; Dickinson’s Est., 148 Pa. 142. Its jurisdiction will be exercised in such a manner as to dispose of every question embraced within the case and to afford complete relief to all the parties in interest: Shollenberger’s App., 21 Pa. 337.

The decree is affirmed.


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    McClain, Appellant, v. McClain.

      Divorce — Marriage—Marriage of first cousins — Annulment of marriage.

    Since the passage of the Act of June 24, 1901, P. L. 597, marriage of first cousins is incestuous; and either party irrespective whether he or she is “an innocent or injured party,” is entitled under the Act of March 13, 1815, 6 Sm. L. 286, to have the marriage annulled in divorce proceedings.
    Argued April 23, 1909.
    Appeal, No. 196, April T., 1909, by plaintiff, from order of C. P. Washington Co., Aug. T., 1908, No. 154, dismissing libel in divorce in case of Florence McClain v. Jesse McClain.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Reversed.
    Libel for divorce. Before Taylor, J.
    From the record it appeared that the libelant and respondent were first cousins, and were married on January 28, 1908. The libelant testified that she never lived with her husband nor cohabited with him.

      Error assigned was order dismissing libel.

      George J. Campbell, with him Vernon Hazzard, for appellant.
    The learned court erred in assuming that this proceeding is an “application of an innocent or injured party” under the Act of April 14, 1859, P. L. 647; whereas it is a proceeding under the Act of March 13, 1815, sec. 5, 6 Sm. L. 286, to annul a marriage which is void by reason of consanguinity or affinity.
    It is settled law in England and in several of the United States that a party to an incestuous marriage is not barred of the right to a divorce because the marriage was knowingly and willfully contracted: Andrews v. Ross, L. R. 14 Probate Div. 15; Miles v. Chilton, 1 Robertson’s Ecclesiastical Reps. 684; Martin v. Martin, 54 W. Va. 301 (46 S. E. Repr. 120); Stapleberg v. Stapleberg, 77 Conn. 31 (58 Atl. Repr. 233).
    The Act of March 13, 1815, sec. 5, 6 Sm. L. 286, having expressly conferred jurisdiction upon the courts of common pleas of the commonwealth to grant divorces where incestuous marriages have occurred, it was error for the learned court below to dismiss the libel: Parker’s Appeal, 44 Pa. 309; Walters’ Appeal, 70 Pa. 392; Adams’s Estate, 6 Pa. C. C. Rep. 591.
    July 14, 1909:
   Opinion by

Henderson, J.,

The fifth section of the act of March 13, 1815, 6 Sm. L. 286, provides: “That all marriages within the degree of consanguinity or affinity, according to the table established by law, are hereby declared void to all intents and purposes; and it shall and may be lawful for the court of common pleas of this commonwealth, or any of them, to grant divorces from the bonds of matrimony in such casos; and the parties shall be subject to like penalties as are contained in the act against incest. But when any of the said marriages shall not have been dissolved during the lifetime of the parties the unlawfulness of the same shall not be inquired into after the death of either the husband or wife.” The thirty-ninth section of the Act of March 31, 1860, P. L. 382, prohibits the marriage of persons within the degree of consanguinity or affinity therein prescribed, subjects the persons contracting such a marriage to prosecution for a misdemeanor and also declares such marriage to be void. The Act of June 24, 1901, P. L. 597, prohibits the marriage of persons “who are of kin of the degree of first cousins” and declares that all marriages contracted in violation of the act are void. The relationship of first cousin was not one of the degrees of consanguinity designated in the act of 1860, and it is evident that the legislature intended to add first cousins to the classes of persons between whom marriage is incestuous. They are, therefore, of a degree of consanguinity covered by the provision of the fifth section of the act of 1815, so far as the marriage contract is concerned, and a marriage between persons thus related is unlawful and void. Incestuous marriages are forbidden as indecent and against nature; hence, the statutory provision for annulling them and for the punishment criminally of persons entering into such contract. This proceeding was instituted in the court below to annul such a marriage. The plaintiff and respondent were first cousins. The fact of the relationship is clearly shown, and the appellant desires to be relieved from the effect of a marriage contract which since her marriage she has found to be unlawful and criminal. The learned judge of the court below was influenced in entering a decree against the libelant by the consideration that she was not “an innocent or injured party” and concluded that where both of the parties contributed to the illegal marriage and had equal grounds for a divorce the court would withhold the decree, leaving them to make the best of the status created by themselves. The act of 1815 makes no reference to “an innocent or injured party,” however. The section providing for annulling incestuous marriages was intended to enable the parties to rectify as far as possible the wrong done and to relieve society from the odium of such an illegal relationship. Either party was given a place of repentance and an opportunity to make restitution. There is a class of cases where only the innocent or injured party will be heard in an application to annul a marriage, as provided in the Act of April 14, 1859, P. L. 647. That applies, however, to cases of supposed or alleged marriages which are absolutely void by reason of one of the parties thereto having a husband or wife living at the time. In such a case the innocent party may have a decree that the supposed marriage is null and void. The decree in that case is not that a divorce be granted, but that the marriage be declared void. As no such restriction is found in the act of 1815, the fact that the libelant knew of the kinship existing is not a bar to this proceeding. The'marital relationship of the libelant with the respondent cannot be continued lawfully, and the policy of the law should be to permit them to undo the wrong committed. Such is the view taken in England as shown in Andrews v. Ross, L. R. 14 Probate Div. 15, which was decided under the matrimonial causes act of 1857; Miles v. Chilton, 1 Robertson's Ecclesiastical Rep. 684; Johnston v. Parker, 3 Phil. 39. The same conclusion was reached in Martin v. Martin, 54 W. Va. 301, and in Stapleberg v. Stapleberg, 77 Conn. 31. Our own view of the case is in harmony with the practice so declared. The appellant ought not to be condemned to continue in a relationship which the law forbids and for the discontinuance of which it has made provision. Our conclusion is that the appellant has presented a case entitling her to relief.

The decree is therefore reversed and the record remitted to the court below with direction to enter a decree in accordance with this opinion.

It is further ordered that the appellee pay the costs of this appeal.