text:
    McCully, Appellant, v. Pittsburg Railways Company.

      Railroads — -Deeds for right of way — Width—Change of gauge — Change of motor power — Steam and electricity.

    Where a deed to a railroad company grants a right of way sixty feet in width with a release of damages and with a right to conduct water by aqueducts and to make proper drains, and “to include all such other rights and privileges as are or may be provided for said company by law, provided however that no further rights are hereby granted than said railroad company is now at present using and enjoying,” the grantee has the right to change the tracks from a narrow to a standard gauge, to change the motor power from steam to electricity, to use any surplus of electricity to bring cars of other affiliated lines to its own terminus, and physically to connect its tracks with those of a street railway at a point not on the right of way embraced in the grant, so as to insure a continuous haul of passengers without change of cars.
    Argued April 27, 1910.
    Appeal, No. 142, April T., 1910, by plaintiffs, from decree of C. P. No. 4, Allegheny Co., Second T., 1909, No. 296, dismissing bill in equity in case of R. L. McCully et al. v. Pittsburg Railways Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Swearingen, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was decree dismissing the bill.

      Andrew S. Smith, with him Samuel A. Schriener, for appellants.
    The law in force when a contract is made is a part of such contract as fully as if its provisions had been incorporated into such contract.
    At the time the contract was made it was not lawful for railroad companies and street railway companies to connect their tracks or interchange traffic. The defendant has constructed a power line over the right of way in question and over plaintiff’s land for-the purpose of transporting electric power for use in moving and heating ears, but a very large proportion of this power current is to be used for other parts of the defendant’s passenger railway system over and above what is necessary to move the cars by electricity on the old Pittsburg & Castle Shannon Railroad which is only about seven miles in length. We submit that by no possible principles of construction could such an invasion of plaintiff’s lands be justified under this contract: Cubbage v. Coal Co., 29 Pa. Superior Ct. 341,

      October 10, 1910:
    When the grant is for a particular purpose the grantee cannot use it for any other: Webber v. Vogel, 159 Pa. 235; Hoosier Stone Co. v. Malott, 130 Ind. 21; Carpenter v. Capital Electric Co., 178 Ill. 29; Proctor v. Campbell, 6 Pa. C. C. Rep. 531; Washburn v. Copeland, 116 Mass. 233.

      David A. Reed, of Reed, Smith, Shaw & Beal, for appellee.
    Ordinarily, a grant of a right of way and a release of damages, such as are contained in the deed in question in this case, are to be construed as vesting in the railroad company the same title and estate as would be acquired by a condemnation of the land: North & West Branch Ry. Co. v. Swank, 105 Pa. 555; Updegrove v. Ry. Co., 132 Pa. 540; Kemp v. R. R. Co., 156 Pa. 430.
    As it is the duty of a railroad company to adopt improvements, therefore, if it is believed by the company that the use of electric motive power will be an improvement over the old method, it may and should adopt it: Howley v. R. R. Co., 213 Pa. 36.
    The plaintiffs complain here of the fact that at a distant point a connection has been made between the Pittsburg & Castle Shannon Railroad and certain street railway tracks. This complaint is well answered in Corey v. Edgewood Boro., 18 Pa. Superior Ct. 216.
    It is not disputed by the plaintiffs that the Pittsburg Railways Company, the lessee, succeeded to all of the rights of the Pittsburg & Castle Shannon Railroad Company in this line. The grant itself, as we have seen, was made to the Castle Shannon Company, "its successors and assigns,” and the Pittsburg Railways Company has become the "successor” of the Castle Shannon Company by a valid lease: Kaufman v. Pittsburg & Castle Shannon R. R. Co., 217 Pa. 599.
   Opinion by

Head, J.,

The Pittsburg & Castle Shannon Railroad Company was incorporated under the general railroad act of 1868 and began the operation of its line of road perhaps prior to 1879. The line has been in continuous operation ever since. This company thus became a common carrier, a quasi public corporation, invested with all of the rights and clothed with all of the obligations which, under the law and policy of this state, are incident to such corporations. Its railroad, as originally constructed, consisted of but a single line of narrow gauge. It is conceded that at some time prior to the filing of this bill the present respondent lawfully succeeded to all of the rights formerly vested in the company named.

By a grant in writing, dated April 27, 1879, the predecessor in title of the present plaintiffs granted and conveyed to said company, “its successors and assigns, a right of way as the same is now located 60 ft. in width at grade and such additional width as is required and necessary in the construction of said road at deep cuttings and embankments to make 60 feet wide at grade. . . . The grant of right of way is for the location on which said R. road is now located and built being operated now. And I hereby for myself, my heirs and assigns, release the said company from any and all damages resulting to me by the location and construction of said railroad through said land and the right to conduct water by aqueducts and the right of making proper drains and to include all such other rights and privileges as are or may be provided for said Co. by law. Provided, however, that no further rights are hereby granted than said railroad company is now at present using and enjoying, to have and to hold the said rights and privileges to the use of said company as same shall be required for the use and purpose of said road in as full, perfect and ample a manner as may be required for that purpose.”

It will be perceived at a glance that this instrument does not exhibit the work either of one skilled in the use of the English language or of one familiar with the legal terms which accurately and clearly portray the nature, extent and character of a grant intended to be made. ' We therefore agree with the learned counsel for the appellant when he states in his printed brief, “.The intent of the parties as to all particulars is not clear.”

There are some considerations, however, important in the construction of this instrument which appear to be so plain that we are warranted in saying they must have been in the contemplation of the grantor. He was the owner' of a tract of land through which a line of railroad had been located and constructed. He was aware of the benefits and advantages that would result to him from such construction because he declares in the instrument that they furnish the valuable consideration which induced him to make the grant. It is clear that he intended to turn over to the exclusive possession of the grantee the strip of land described, to be used by it in the development and accomplishment of the purpose for which said companies are incorporated by the state.

If we confine our attention to that portion of the grant which deals exclusively with the right of way and nothing else and then look to the clause in the nature of a habendum, there would be no room for doubt that it was the intention of the grantor that the company should thereafter use and enjoy the strip of land in any and every proper way legitimately connected with and incident to the purpose of its creation. After having, by reasonably apt words, completed the main grant itself and described the location and extent of it, the grantor undertook to add a clause in the nature of a release of damages. Within the body of that clause there appears evidence of his intention to make some other specific grants apart from the primary one of the right of way itself, to wit, the right to conduct water by aqueducts and the right of making proper drains. This additional grant, it seems from the language used and its location in the instrument, was “to include all such other rights and privileges as are or may be provided for said Co. by law. Provided, however, that no further rights are hereby granted than said railroad company is now at present using and enjoying.”

It is not easy to see how the same number of words could be associated with the effect of making the meaning of the grantor more obscure than those last quoted. It would offend every just rule of construction, however, were we to hold that it was his intention, by their use, to cut down the primary grant of the right of way for railroad purposes and restrict and limit its enjoyment, for all future time, by confining the use of the right of way to such uses as were at that particular time being made of it. Why grant a right sixty feet in width, with the necessary additional widths for slopes and fills, if the grantor intended that the railroad company should never put down additional tracks or never widen the track already there from narrow to standard gauge? The change from narrow to standard gauge, or from single to double track, would be but the evidence of a multiplication of those benefits and advantages which constituted the real consideration of the grant. They would but mark the progress in the settlement of the country, in the increase of its population, in the facility of its modes of communication, and in the quick and easy transportation of persons and property, all of which were the things yet unseen but hoped for by those who promoted or in any way aided the construction of railroads through the country. It would seem, therefore, that the primary grant of the right of way sixty feet wide was not intended to be impaired by the proviso at the end of the clause we have above quoted.

If the proviso has ‘any meaning that can be fairly attributed to it which is not antagonistic to the main purpose of the instrument, the most we can say of it is that it was an attempt to restrict the operation of the clause which had already granted the right to conduct water, make proper drains, and all such other rights and privileges as are and may be provided by law. We can give it no wider significance without substantially impairing if not destroying a separate grant which had been completely made in the earlier part of the instrument.

We do not think we are called upon to discover a precisely accurate term to express the nature and character of the grant that was made. Whether it more accurately could be called an easement or a base fee is perhaps not of first importance for our purposes. It is quite clear that it is something more than the ordinary easement of way known to the common law. In North and West Branch Railway Company v. Swank, 105 Pa. 555, Mr. Justice Trunkey, speaking of such a grant, says: “So far as advised, the popular understanding of a grant of right of way for a railroad is, that it includes all the company may lawfully and adversely take from the grantor for use as a way.” This language is quoted with approval in Updegrove v. Railway Company, 132 Pa. 540; Kemp v. Railroad Company, 156 Pa. 430. As to the nature of the estate acquired adversely by a railroad company under the operation of the right of eminent domain, it was said in Railway Company v. Peet, 152 Pa. 488: “The estate acquired by a railroad company by a condemnation of land is often spoken of as an easement, but the term is used in a loose way for the purpose of distinguishing it from a fee.” Mr. Justice Paxson, writing for the court in that case, then goes on to quote some language of a former opinion of the same court in which a number of rights incident to the estate thus acquired, such as the right to exclusively possess it, to fence it, to build over the surface of it, etc., are said to indicate that it might be more appropriate to regard it as a base or conditional fee than an easement at the common law. But this is followed by the declaration that if its essential character be recognized, an exact name for it is not important.

Having thus briefly considered the grant, let us turn our attention for a moment to the things which the railroad company was undertaking to do at the time this bill was filed. It was, as we have intimated, engaged in the process of making its railroad of standard gauge. This was in nowise forbidden by the grant, but was a right possessed by the railroad company, the exercise of which, as we have said, was calculated to promote the main object contemplated by the parties when the grant was made. It could be of no legal concern to these plaintiffs how this work was done, so long as the company did not trespass beyond the limits of its right of way.

It was, however, not only increasing the gauge of its track to standard, but it was introducing a new system of motive power, to wit, electricity instead of steam. No part of the structure necessary to. accomplish this end trespassed upon the lands of the plaintiffs. Since the exhaustive opinion of Mr. Justice Brown, speaking for the Supreme Court in Howley v. Central Valley R. R. Co., 213 Pa. 36, it cannot be doubted that the respondent company was in the exercise of a clear right under its charter and under the general laws of the state in making such change. Indeed, as that opinion points out, it is not only a right but it is the duty of the company in the discharge of the obligation it owes to the state, “to make use of the latest and best inventions and appliances tending to promote the comfort and safety of the public. This is notably the case in the matter of spark arresters, and is equally applicable to couplings and other contrivances.”

In the light of these decisions we are unable to see how the aid of a chancellor could be successfully invoked to put such a construction upon the clause in the grant we have quoted as would make it operative to prevent a common carrier, a public servant, from discharging its manifest obligation to the state and its people, unless absolutely forced to such a conclusion by language so plain in its object, meaning and effect as to preclude the necessity for interpretation or construction. These considerations we agree will not warrant a court in rewriting a contract wherein the parties have plainly expressed their meaning. The case of Cubbage v. Pittsburg Coal Co., 216 Pa. 411, which the appellants contend largely rules this case, was expressly rested on the proposition we have last mentioned. But when the principles of construction and the broad considerations to which we have alluded are applied to the confessedly obscure language of the grant now before us, there is left but little room to assert that in disposing of our question we have only to follow the decision last quoted.

The appellants still further complain that the respondent, in producing the current of electricity to operate its cars over its line, is producing more than its present needs require and that it is using that surplus, carried in conduits over its right of way, to bring cars of other affiliated lines loaded with passengers to its own terminus so that it may reap the profit of hauling them on its own lines over the right of way granted by the plaintiff. In this again we can see no ground for the interposition of a chancellor. The plaintiffs suffer no substantial injury thereby even if the most technical eye could discern a theoretical one. If the respondent has the right to use the land that was granted to it for every proper railroad purpose, it would not be easy to persuade a court of equity that it was guilty of any violation of the spirit or intent of the grant in thus taking practical and effective measures to multiply traffic over its own lines.

The same may be said of the only remaining ground of complaint. This is, that when carloads of passengers from affiliated lines are brought to the southern terminus of the respondent’s lines, it hauls the cars in which they are comfortably seated to its other terminus in the city of Pitts-burg instead of compelling them to change cars at the point where its own lines are reached.

But it is argued that when this grant was made it was not competent for a steam railroad to physically connect its tracks with those of a street railway (such power having been but recently given) and therefore such a situation could not be fairly said to have been contemplated by the parties to the grant. Conceding this to be true we have to observe that the physical connection is not made on the right of way embraced in the grant. The grantors therefore have no standing to complain of it. The only way in which they are affected by it is.that it results in their grantee hauling more passengers over its own line than it otherwise could. But this result in no sense violates either the letter or spirit of the grant, because the growth of the railroad company by all natural and legitimate means, and its consequent increase of business must have been present to the mind of the grantor when he declared that he made the grant "in consideration of the benefits and advantages to result to me from the construction, etc.”

All of these various phases of the question were carefully considered by the learned trial judge, who in his opinion fairly shows that under any reasonable construction of the original grant that may be made, giving due effect to its primary and important objects and following well-established rules in construing its less important clauses, there appears no ground on which the plaintiffs’ bill ought to be sustained. It was therefore properly dismissed.

The decree is affirmed.


source: Caselaw Access Project

author: Head, J.,

license: Public Domain

text:
    McKee, Appellant, v. Pittsburg Railways Company.
    October 10, 1910:
   Opinion by

Head, J.,

This is a companion case with McCully v. Pittsburg Railways Company, in which an opinion has this day been handed down, ante, p. 316. In every essential feature the two cases are similar and present the same questions for our consideration. In this case, as in the former one, the bill was dismissed by the learned judge below, and for the reasons we have fully set forth in the opinion referred to we must affirm his decree.

Judgment affirmed.


author: Orlady, J.,

text:
    Ashworth v. Pittsburg Railway Company, Appellant.

      Street railways — Common carriers — Passengers—Rates—Classification of cities — Municipalities—Constitutional law — Local and special legislation — Act of June 7, 1907, P. L. 453.

    1. The regulation of fares to be charged for riding on a street car in a city is a municipal regulation, and this is the case whether the regulation is affected by a grant of power by the legislature to the city to. make it, or is made by the legislature itself.
    2. Street railways are dependent upon municipal permission and are subject to municipal regulation and control within the authority delegated by the state, but there is always in reserve the authority of the legislature to do directly what it authorizes its creature to do.
    3. The Act of June 7, 1907, P. L. 453, entitled, “An Act to regulate the maximum rate of fare to be charged for transportation of passengers by street railway companies or corporations in the cities of the second class of the Commonwealth, and prescribing a penalty for the violation thereof,” is not unconstitutional as local or special legislation, and does not involve an improper classification of cities.
    Argued April 28, 1910.
    Appeal, No. 184, April T., 1908, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1908, No. 216, for plaintiff on case stated in suit of William H. Ashworth v. Pittsburg Railways Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Case stated to determine the constitutionality of the Act of June 7, 1907, P. L. 453, relating to rates of fare of street railway companies in cities of the second class.
    The court in an opinion by Shaper, J., found that the act was constitutional and entered judgment for plaintiff for $200.

      Error assigned was in entering judgment for plaintiff.

      William A. Challener, with him Clarence Burleigh, for appellant.
    The act of 1907 is unconstitutional: Weinman v. Ry. Co., 118 Pa. 192.

      October 10, 1910:

      Wm. M. Hall, for appellee.
    The legislature may confer this power of rate regulation upon the municipal or local government: Freeport Water Co. v. Freeport, 180 U. S. 587 (21 Sup. Ct. Repr. 493); San Diego Land, etc., Co. v. Jasper, 189 U. S. 439 (23 Sup. Ct. Repr. 571); Old Colony Trust Co. v. Atlanta, 83 Fed. Repr. 39; Allegheny v. Millvale, etc., Ry. Co., 159 Pa. 411.
    The legislature has the power to fix the rates and the extent of judicial interference is protection against unreasonable rates: Chicago & G. T. Ry. Co. v. Wellman, 143 U. S. 339 (12 Sup. Ct. Repr. 400); Stone v. Farmers’ L. & T. Co., 116 U. S. 307 (6 Sup. Ct. Repr. 334); Georgia R. R. & Banking Co. v. Smith, 128 U. S. 174 (9 Sup. Ct. Repr. 47).
   Opinion by

Orlady, J.,

The sole claim of the defendant is that the Act of June 7, 1907, P. L. 453, is void because it is a special and local law, such as is prohibited by the constitution of the state. The title of the act is as follows: “An act to regulate the maximum rate of fare to be charged for transportation of passengers by street railway companies or corporations, in the cities of the second class of the commonwealth, and prescribing a penalty for the violation thereof.” The first section provides: “That no company or corporation operating a street railway in this commonwealth shall charge, demand or receive more than the sum of five cents per trip or passage from each passenger on said railway within the corporate limits of any city of the second class in this commonwealth for a continuous ride in one car.”

For many years prior to June, 1907, the defendant company had exacted for a continuous ride a fare of ten cents between the hours of twelve o’clock midnight and four o’clock in the morning, and a fare of five cents during the other hours of the day.

The plaintiff boarded a car of the defendant company at 1:35 a. m., of July 16,1907, and after the car had proceeded on its trip the conductor demanded the fare of ten cents, which was refused. A fare of five cents was then tendered by the passenger and declined by the conductor, whereupon the plaintiff was ejected and this suit brought.

By the Act of June 25, 1895, P. L. 275, the cities of this commonwealth are divided into three classes, “for the purposes of legislation, regulating their municipal affairs, the exercise of certain corporate powers, and having respect to the number, character, powers and duties of certain officers thereof.” By this act cities of the second class are defined as, “Those containing a population of one hundred thousand and under one million,” and by this classification there were but three cities of that class in the state, — Pittsburg and Allegheny, now consolidated into one city — and Scranton. The Act of March 7,1901, P. L. 20, “For the Government of cities of the second class” was assailed as local and void for substantially the same reasons as are urged in this case; and consideration of that question resulted in the declaration by the Supreme Court in Com. v. Moir, 199 Pa. 534, that: “Municipal corporations are agents of the state, invested with certain subordinate governmental functions for reasons of convenience and public policy. They are created, governed, and the extent of their powers determined by the legislature, and subject to change, repeal, or total abolition at its will. They have no vested rights in their offices, their charters, their corporate powers, or even their corporate existence. This is the universal rule of constitutional law, and in no state has it been more clearly expressed and more uniformly applied than in Pennsylvania. . . . Classification of cities is a legislative and not a judicial question, and if it is based on difference of municipal affairs, and relates to and deals with such affairs, and the question of where the line shall be drawn and what differences of system shall be prescribed for differences of situation, are wholly legislative.”

It was held by the learned trial judge, under the authority of Reeves v. Philadelphia Traction Co., 152 Pa. 153, that the regulation of fares to be charged for riding on a street car in a city is a municipal regulation, and that the subject of such rates is a municipal affair, and whether the regulation is effected by a grant of power by the legislature to the city to make it, or is made by the legislature itself, makes no difference.

The municipality is the mere agent of the state, and holds all of its powers subject to the will of the legislature: Pittsburg’s Petition, 217 Pa. 227. While the assent of the city is required before a street railway may occupy its streets, and it may require that a designated rate of fare shall be charged: Allegheny v. Millville, etc., Street Ry. Co., 159 Pa. 411, this is so, because the legislature delegated such authority to the municipality, but every power or right that is asserted by the municipality by virtue of an act of assembly- may be asserted by the legislature by direct enactment. The street railways are dependent upon municipal permission and are subject to municipal regulation and control within the authority delegated by the state, but there is always in reserve the authority of the legislature to do directly what it authorizes its creature to do: Potts v. Elevated R. R. Co., 161 Pa. 396. Under the powers inherent in every sovereignty, a government may regulate the conduct of its citizens towards each other, and when necessary for the public good, the manner in which each shall use his own property: Munn v. Illinois, 94 U. S. 113. The classification of cities being a legislative and not a judicial question: Com. v. Moir, 199 Pa. 534, we have nothing to do with the wisdom or expediency of the method adopted by the legislature: Pittsburg’s Redistricting, 37 Pa. Superior Ct. 525; West Chester Boro. v. Postal Tel. Co., 227 Pa. 384; Cornman v. Hagginbotham, 227 Pa. 549.

The case of Weinman v. Pass. Ry. Co., 118 Pa. 192, is urged by the defendant as controlling here. It was a suit to recover unpaid installments on subscriptions to capital stock, and the court held that the Act of March 19, 1879, P. L. 9, — relating to the incorporation, government and regulation of street railway companies in cities of the second and third classes, — was both special and local because it related to a few members of the general class of corporations, known as street railway companies, and because its operations were confined to particular localities, viz.: cities of the second and third class. But it was also held in the same case that: For purposes of local government the state is subdivided into counties, townships, and other municipal and quasi municipal corporations. Each class of these subdivisions has purposes to subserve that are peculiar to it, and needs to be invested with the powers necessary to that end. Classification, therefore, upon this basis has been recognized, and a statute relating to all the townships, all the school districts, all the members of any particular class of the municipal divisions of the state has been held to be constitutional.”

The particular class of municipal divisions to which the act of 1907 refers are specifically mentioned as cities of the second class, and all such are embraced in its terms. In Pittsburg’s Petition, 217 Pa. 227, the fact that the cities of Pittsburg and Allegheny were the only ones in the state to which the legislation under consideration would technically apply did not alone make that act unconstitutional, as the act was held to apply to future years as well as to the present time. For the same reason the act under consideration here is not local or special, but general in that it relates to and affects all of the street railways in all the cities of the second class in the commonwealth: Cornman v. Hagginbotham, 227 Pa. 549; Schl. Dist. v. Montgomery, 227 Pa. 370; O’Donnell v. Pittsburg, 227 Pa. 14.

The argument in this case was limited to the single question of the act being local and special legislation. The judgment is affirmed.


text:
    Commonwealth v. Doe, Appellant.

      Street railways — Fares—Rules and regulations — Belt line.

    1. A street passenger railway company operating a belt line exclusively within the limits of a city, may, by a rule and regulation designate a certain point of the line as the end thereof and the end of the trip, and beyond which a passenger cannot ride without paying an additional fare; and this is so even when all persons by taking a car on the same street going in an opposite direction may reach liis designation and have by that route a continuous one fare ride before reaching the end of the line.
    2. A street railway company has the right to define by a reasonable regulation the length of trip to which the passenger is entitled for his fare. The question whether the regulation is reasonable is a question for the court and not for a jury.
    3. Where a street railway company has adopted reasonable rules and regulations as to fares, there is no burden on the company to show that a passenger had notice of such rules and regulations.
    4. Where an issue turns on the reasonableness of the regulation of fares the knowledge of the regulation by a particular passenger may be shown by evidence that the regulation had been in operation for many years, that it had always been enforced, and that the passenger in question had some knowledge of the operation of the road.
    Argued April 28, 1910.
    Appeal, No. 165, April T., 1910, by defendant, from judgment of Q. S. Allegheny Co., Feb. T., 1910, No. 227, on verdict of guilty in case of Commonwealth v. John Doe, alias J. W. Webber.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Indictment for violating the Act of June 7, 1907, P. L. 453, relating to street railway fares in cities of the second class.
    At the trial counsel for defendant proposed to prove by a witness upon the stand, to be followed by other testimony, that the line upon which the prosecutor took passage, at the date laid in the indictment, was the Fifth, Shady and Penn avenue line; that the end of this line was the corner of Eleventh street and Penn avenue in the city of Pittsburg; that each and every trip upon the said line at that time was made from the corner of Eleventh street and Penn avenue, out . Penn avenue eastwardly to Shady avenue, along Shady avenue to Fifth avenue, along Fifth avenue to Cecil alley, along Cecil alley to Penn avenue, and out Penn avenue to Eleventh street; that when the car reached Eleventh street it was the end of the trip, and the end of the-line, and that neither the prosecutor nor any other passenger could ride further than the end of the trip, and the end of the line, to wit, the corner of Eleventh street and Penn avenue, for one fare; and that the Pittsburg Railways Company, the company operating this line, had, and always had, in force a rule and regulation to this effect, and this for the purpose of showing the defendant is not guilty of any offense under this act.
    Objected to, by counsel for the commonwealth, because the offer does not propose to show that the point named, to wit, Eleventh street and Penn avenue, is the physical end of the Fifth, Shady and Penn avenue cars, but merely a fictitious point fixed in some manner by the defendant or his employers.
    Second, because the trip referred to in the offer is an ideal trip, and not a trip either fixed by physical points of destination or by the intention of the passenger.
    Third, because in no event has the street car company (a public carrier) the right to enforce even a reasonable rule or regulation, unless the public be given proper notice of the same.
    Fourth, because the Pittsburg Railways Company has no authority, by rules and regulations, to modify a statute of the commonwealth of Pennsylvania.
    Fifth, because the alleged modification by rule or regulation is not reasonable.
    Sixth, because the testimony proposed is irrelevant and immaterial to the issue.
    The Court: There is an admission that this car makes a continuous trip?

      Mr. Burleigh: Yes.
    The Court: There is no purpose here to prove that this is the physical end of the line?
    Mr. Burleigh: No purpose whatsoever; the car perhaps does not even stop at Eleventh street and Penn avenue unless a passenger is to be received or discharged.
    Objection sustained. Exception. [4]
    Counsel for defendant further proposed to prove, by the witness upon the stand, and by other witnesses, that a complete trip on the line prosecutor took was only from Eleventh street and Penn avenue, Pittsburg, to Eleventh street and Penn avenue, Pittsburg, and said trip ended at the corner of Eleventh street and Penn avenue, Pittsburg.
    Objected to, by counsel for the commonwealth, as before, with this addition — it being admitted that the cars on this line do not stop at the destination fixed in the offer, to wit, Eleventh street and Penn avenue, in the city of Pittsburg, except to take on or discharge passengers.
    Objection sustained. Exception. [5]
    Counsel for defendant further proposed to prove by the witness on the stand, and by other witnesses, that the Pittsburg Railways Company operates a line of street cars upon double tracks, going upon the same streets but in opposite directions to each other, and called the Fifth, Shady and Penn avenue line; that the end of one of said lines is the corner of Eleventh street and Penn avenue in the city of Pittsburg and that line starts at said corner and travels eastwardly along Penn avenue to Shady avenue, along Shady avenue to Fifth avenue, along Fifth avenue to Cecil alley, along Cecil alley to Penn avenue, and along Penn avenue to the corner of Eleventh street, Eleventh street being the end of the line and the end of the trip; that the other of said lines begins at the corner of Grant street and Fifth avenue, and runs eastwardly along Fifth avenue to Shady avenue, along Shady avenue to Penn avenue, along Penn avenue to Cecil alley, along Cecil alley to Fifth avenue, and along Fifth avenue to Grant street, Grant street being the end of the line and the end of the trip; that for the convenience of the public what is called a lap over exists on both lines, so that people traveling on the first line may board the cars at Grant street going west, or any point west of Grant street, and make a continuous trip from such point without paying an additional fare when Eleventh street is reached, and passengers boarding the cars upon the other of said lines may board the cars at Eleventh street, or any point east of Eleventh street, and make a continuous trip without paying an additional fare when the end of the line and the end of the trip is reached; that the Pittsburg Railways Company always had, and enforced a rule and regulation to this effect, and that the prosecutor, by crossing Fifth avenue at the point or place where he took the car, could have taken a car on the same line, to wit, the Fifth, Shady and Penn avenue line, going in the opposite direction to the car which he did take, and the trip of which car would have taken him to his destination, to wit, Eighteenth street and Penn avenue, during its trip, and for one five cent fare.
    Objected to, by-counsel for the commonwealth, for the same reasons as heretofore stated, and further that it would be immaterial and irrelevant, because the actual trip taken and intended by the prosecutor in this case was the shortest distance he could traverse on the cars of the Fifth, Shady and Penn avenue car line.
    Objection sustained. Exception. [6]
    Counsel for defendant further proposed to prove by the witness upon the stand, and other witnesses, that the Pittsburg Railways Company, the company employing the defendant, for years has regularly run the line on Fifth avenue, passing the point or the place where the prosecutor took the car, to wit, the Fifth, Shady and Penn avenue line, which would have taken the prosecutor to his destination on one trip, and for one fare of five cents.
    Objected to, by counsel for the commonwealth, as before.

      October 10, 1910:
    Objection sustained. Exception. [7]
    Verdict of guilty, upon which the defendant was fined $5.00, and costs.

      Errors assigned were (1, 2) instructions relating to the constitutionality of the Act of June 7, 1907, P. L. 453; (4-7) rulings on evidence, quoting the bill of exceptions.

      W. A. Challener, with him E. K. Trent and Clarence Burleigh, for appellant.

      Warren I. Seymour, with him W. A. Blakeley, for appellee.
   Opinion by

Orlady, J.,

This case was argued at the same time as was Ashworth v. The Pittsburg Railways Company, ante, p. 326, in which an opinion is filed this day; and for the reasons therein given the first and second assignments of error in this case are overruled.

The Pittsburg Railways Company operates two lines of street cars, going in opposite directions, upon double tracks on the same streets, and called the “Fifth, Shady and Penn” line. The track of each line is an irregular ellipse, having an east and west long axis of about five miles, and a continuous circuit of about ten miles in length. There is no physical end to either circuit and for many years the company has fixed “ends of the line” for the purpose of exacting fares from passengers, and defining runs for the car crews. The end of one line is at Eleventh street and Penn avenue, and cars move eastwardly, and by way of Penn, Shady, Fifth and Penn avenues to Eleventh street. The end of the other line is at Grant street on Fifth avenue, and cars start and move westwardly by way of Fifth, Penn, Shady and Fifth avenues to Grant street. These designated places are called the western ends of the line for passengers, or ends of the trip for the car crews; but for the convenience of the pub-lie, the company established what are named “lap-overs” by which a passenger traveling on the first mentioned line may board a west-bound car on Fifth avenue at Grant street, or at any point west thereof, and make a continuous one-fare trip to any point west of the eastern end of the line (junction of Shady and Penn avenues) without paying an additional fare when Eleventh street (which is the technical end of the line) is reached, and a passenger boarding a west-bound car on Penn avenue at Eleventh street or at any point west of Grant street may have a continuous one-fare trip to any point west of the eastern end of the line, without paying an additional fare when Grant street (which is the technical end of the line) is reached.

The prosecutor entered a west-bound pay-as-you-enter car at Federal street — five squares east of Grant street— on Fifth avenue, intending to go to Eighteenth street— seven squares east of Eleventh street — on Penn avenue. He paid his fare of five cents on entering the car, and after the car had passed Eleventh street and Penn avenue the conductor made inquiry as to his destination, and then asked for another fare of five cents. This was refused by the passenger, when the conductor notified him that he must pay another fare of five cents or get off the car, and made some show of stopping the car to eject the prosecutor, when a friend volunteered the payment of the second fare and the passenger proceeded to his destination. The conductor was indicted under the Act of June 7, 1907, P. L. 453, for the fact that “he unlawfully did charge, demand and receive the sum of ten cents per trip and passage” from the prosecutor for a continuous ride in one car, and for the purpose of testing the constitutionality of the aet, he was by direction of the court found guilty.

On the trial the court sustained objections to offers of testimony made by the defendant, which are embraced in the fourth, fifth, sixth and seventh assignments of error, and fairly raise the fourth statement of the question involved, viz.: Is it lawful for a street passenger railway company, operating a belt line exclusively within the limits of a city, by a rule and regulation to designate a certain point of said line as the end of the line, — the end of the trip, and beyond which a passenger cannot ride without paying an additional fare, and especially when all persons, by taking a car on the same street going in an opposite direction may reach his destination and have by that route a continuous one-fare ride, before reaching the end of the line.

As shown by the draft offered in evidence, the western end of each line is outside of the part of the city that is most congested by traffic and business, and the lap over on each line will carry a passenger over twelve squares in either direction through the busiest thoroughfares of the city.

It is urged by the appellant, that had the evidence that was excluded by the court been received it would have been shown by undisputed facts that the rules and regulations in force by the company had been in existence for many years. While the record does not disclose the exact length of time the rule has been .in- existence, the witness on the stand at the time the offer was made testified that “he had been a conductor in the service of the Pittsburg Railways Company for fourteen years,” and the offer was to show that the company had always had, and had always enforced, the rule and regulation in question, so that it is fair to assume that it had been in existence at least for that length of time.

It is contended by the commonwealth that even if the rule and regulation is a necessary and reasonable one it was not binding on the prosecutor or on the public, because the defendant did not offer to show notice of any kind to the public. There is no statutory provision made for giving such notice, and many methods have been adopted by carriers to advise the public of such rules, as by posters, newspapers, handbills, etc.; but, if the manner or method is not defined and required by law, the mere fact of publication does not of itself create implied or constructive notice: Weaver v. Craighead, 104 Pa. 288. The record does not.disclose how long the prosecutor had used this line, or whether he knew of the rules, or made any inquiry of the conductor in regard thereto when he entered the car, but it does show that he was familiar enough with the situation to know that Eighteenth street was his destination, and that the car he boarded would take him to it, and he and the public knew that cars bearing the same sign were passing in opposite directions upon the same street, naturally with some advantages as to time and distance, and reasonably as to fare. As was said in Lake Shore, etc., R. R. Co. v. Rosenzweig, 113 Pa. 519: “No necessity has been shown for judicial enunciation that there is a legal presumption, or a fiction of law, that a person about to become a passenger, or has become a passenger on a railway, knows the rules and regulations of the railway company, .... in a proper sense he was bound to ascertain and know the regulations of the defendant entering into his contract, and he has no greater rights thereunder than if he had acquired actual knowledge of its terms.”

There are very few facts which diligence cannot discover, and by reasonable diligence is meant, where there is some reason to awaken inquiry and direct diligence in a channel in which it would be successful: Maul v. Rider, 59 Pa. 167.

The argument of the commonwealth goes to the length to say that even if the prosecutor had actual notice of the rule, yet the defendant was rightly convicted because the rule was an arbitrary and unreasonable one. It must be admitted that the railways company has authority to define by a reasonable regulation the length of the trip to which the passenger is entitled for his fare. Surely this question could not be decided arbitrarily by the passenger? The rightful discretion must necessarily rest with the company. This passenger, according to the argument of the commonwealth, would be entitled to board an east-bound car at Federal street and Fifth avenue and ride for a single fare the entire circuit of ten miles to go to High street which is but three squares west of Federal street on Fifth avenue. This we think would not be reasonable. While there is no physical end of either line, of right there should be a definite one for purposes of limiting passages and trip. Call it theoretic, ideal, arbitrary or necessary, the fact remains, that such a regulation is demanded by the very exigencies of the case. The important question is, is it a reasonable one and how shall it be determined?

The demand of the public for prompt and safe service, the length of the road, population, number of stops, hours of service, schedules, transfers, and a great variety of circumstances are to be considered in interpreting such a regulation.

There is marked conflict in the decisions of our sister states, but in all of them, it seems to be conceded that the carrier has the right to prescribe such reasonable rules and regulations as may be deemed fit and proper to meet the demand of the public for a safe and prompt service.

In our own state the proper tribunal to decide this question is the court and not a jury. Pittsburg, etc., Ry. Co. v. Lyon, 123 Pa. 140, is in point, in which case the Supreme Court holds “So far as the reasonableness of a given rule depends upon the existence of particular facts and circumstances, it is necessarily a question for the jury, under proper instructions from the court; but if the facts are undisputed, the question is a proper one for the court: ” Old Colony R. R. Co. v. Tripp, 33 Am. & Eng. R. R. Cases, 488, and notes. As was said in Vedder v. Fellows, 20 N. Y. 126, 131: “There are strong reasons why the reasonableness of railroad regulations should be submitted to the court as a question of law rather than to the jury as one of fact. Ordinarily jurors are not aware, nor can they readily be made aware, of all the reasons calling for the rule, .... What one jury might deem an inconvenient rule, another might approve as judicious and proper. There would be no uniformity. The facts of the case at bar being undisputed it was clearly the province of the court to say, as a matter of law, whether the regulation in question was reasonable or not.”

There is no particular kind of evidence necessary to prove notice; any legal evidence that proves knowledge of the necessary facts is admissible. Even in the steam railroad cases it is held that all the terms of the contract of carriage are not embraced in the printed ticket, but in so far as they are not expressed they must be gathered from the rules and regulations of the company for running its trains,- with the qualification that such rules and regulations must be reasonable and not contrary to the terms expressed, and that the burden is not on the company to show that the passenger had notice of their reasonable rules: Dietrich v. Penna. R. R. Co., 71 Pa. 432.

The guilt of the defendant depended upon his right to exact the second fare, and this, upon the right of the company to make the rule and regulation requiring its payment. The excluded evidence was relevant to that contention and should have been received with such other evidence as was pertinent to that inquiry. The fourth, fifth, sixth and seventh assignments of error are sustained.

The judgment is reversed, and a new trial awarded.


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

      Negligence — Railroads—Death—Crossing tracks — Evidence.
    1. Where a man is found dead on the tracks of a railroad thirty feet from a public crossing shortly after an express train had passed, and nq witness saw the accident, and no traces of blood were found at the crossing, and there is no evidence whatever that the deceased was struck while on the crossing, it is reversible error to permit a jury to draw the inference that the deceased was on the crossing when he was struck, and that the railroad company was guilty of negligence. 2. Where every fact proved will support an inference that excludes liability just as strongly as a contrary one, a jury is stepping into the field of speculation and conjecture when they undertake to say that the theory upon which negligence rests is the one that truly accounts for what actually happened.
    Argued April 28, 1910.
    Appeal, No. 159, April T., 1910, by defendant, from judgment of C. P. No. 4, Allegheny Co., Fourth T., 1907, No. 689, on verdict for plaintiff in case of Mary A. Cawley v. Baltimore & Ohio Railroad Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Trespass to recover damages for death of plaintiff’s husband. Before Carnahan, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $550. Defendant appealed.

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

      Owen S. Cecil, with him Johns McCleave, for appellant.
    There was no evidence from which jury might infer that deceased was struck while on the highway: Quigley v. Canal Co., 142 Pa. 388; Jones v. R. R. Co., 202 Pa. 81; Welsh v. R. R. Co., 181 Pa. 461; Penna. R. R. Co. v. Mooney, 126 Pa. 244; Ogden v. R. R. Co., 23 W. N. C. 191.
    The undisputed evidence as to the situation at the crossing negatives the presumption that the deceased performed his duty to stop, look and listen: Davis v. Ry. Co., 159 Fed. Repr. 10; Carroll v. R. R. Co., 12 W. N. C. 348; Marland v. R. R. Co., 123 Pa. 487; Meyers v. R. R. Co., 150 Pa. 386; Urias v. Penna. R. R. Co., 152 Pa. 326; Connerton v. Delaware & H. Canal, 169 Pa. 339; Seamans v. D. L. & W. R. R. Co., 174 Pa. 421; Coppuck v. P. W. & B. R. R. Co., 191 Pa. 172.

      October 10, 1910:

      A. H. Mercer, with him L. W. Bigham, for appellee.—
    The finding of the jury upon the facts in this case is supported by the decisions of all of our courts: Penna. R. R. Co. v. Weber, 76 Pa. 157; Weiss v. R. R. Co., 79 Pa. 387; Sontum v. Ry. Co., 226 Pa. 230; Laib v. Penna. R. R. Co., 180 Pa. 503; Davis v. R. R. Co., 34 Pa. Superior Ct. 388; Unger v. R. R. Co., 217 Pa. 106; Longenecker v. R. R. Co., 105 Pa. 328; Bard v. R. R. Co., 199 Pa. 94; Seifred v. R. R. Co., 206 Pa. 399; Kuntz v. R. R. Co., 206 Pa. 162.
   Opinion by

Head, J.,

In that section of the city of Pittsburg in the immediate vicinity of Hazelwood station, the right of way and tracks of the appellant company are at grade with the surrounding streets. The map offered in evidence and attached to the paper-book shows that at Hazelwood avenue the tracks run almost north and south. Of course, the general direction of the line is from east to west, and this leads to some apparent confusion in the testimony of the witnesses. The plaintiff with her husband lived on Gloucester street which runs parallel with the railroad and right alongside of and at grade with it. She locates her residence as being about three quarters of a square east of the grade crossing at Hazelwood station. No fence or other obstruction separated the tracks from the street. As she herself says in her testimony, “I have nothing to do but to cross the street and two sidewalks on to the railroad.” At Hazelwood avenue on which the station building is located the railroad consists of two main tracks, west bound and east bound, and a siding. The siding, which extended but a short distance south or east of Hazelwood avenue, would be nearest to Gloucester street, the east bound track next and the west bound farthest from it, or nearest to Second avenue on the other side of the railroad. .

On the night of September 11, 1906, between nine and ten o’clock, the plaintiff’s husband left her house to go to a store on the other side of the railroad to procure an evening paper. She never saw him again alive. No one saw him on his way to the store. No one knows whether he proceeded down Gloucester street and crossed at the crossing at Hazelwood avenue or whether he took the more direct route diagonally across the tracks. He reached the store in safety and left it a few minutes before ten o’clock in company with the witness Douglass. They walked down Hazelwood avenue to a point near the tracks and stood there conversing a short time until a passenger train west bound had passed them. Douglass lived farther west, and after this train had passed he left the plaintiff’s husband at the point where they had been talking and started westward alongside of the track. The rear light of the train that had passed was still visible vanishing in the distance. As he walked westward he heard the roar of an approaching east bound express. After he had traveled, as he says, a distance of 175 feet from where he had left the plaintiff’s husband, he saw the headlight of the approaching train, and it was then distant from him 210 feet. This would make it clear that at that time the train would be distant 385 feet from one on the crossing.

No human eye saw the plaintiff’s husband after he was left by the witness Douglass until he was found in the manner to be described. Whether he began to move immediately after Douglass had left him, no one knows. It is quite clear, if he had, and his motion was along Hazel-wood avenue and across the tracks, he would have had sufficient time to have crossed them several times in safety before the east bound express reached that crossing. Not only is there no evidence as to when he started to go from the point where he had been left, but there is absolutely none as to how he undertook to go. No one saw him on the crossing, no one knows that he was on the crossing. It is equally true that no one saw him walking along the tracks or crossing them in the diagonal line that would be the most direct route from the point where he had been left standing to his own home.

At the time the east bound express passed the crossing, and for a very considerable period before that time, two men had been standing at the Second avenue corner of the station house talking together. They had seen . nothing of Cawley during that evening. In a few moments after the express train had passed a boy ran up to them and informed them a man had been struck by the train and his body was lying on the tracks. They proceeded at once to see if any aid could be rendered ,and they found, lying on the right of way between the east and west bound tracks and about thirty feet, as they described it from the crossing, the body of the plaintiff’s husband. He expired just as they reached him. They give no further description of the condition of the body except to say that the bones of his limbs were so badly broken a stretcher was required to remove him. This is the whole of the testimony upon which the plaintiff predicates her claim that the defendant is legally responsible for the negligent killing of her husband. We may here add that the testimony shows no blood or other mark of any kind at the crossing to indicate that it was at that point the train struck him.

Now it is manifest that if the deceased were walking along the tracks of the defendant company when he was struck, in other words, if the collision occurred not upon the public highway but at a point east of it on the right of way of the defendant company, the plaintiff cannot recover. Before the defendant could be called upon to answer, there must have been a sufficient basis for the conclusion that the deceased was struck while on a public highway where he had a right to be.

Of course it is absolutely clear, if we may credit the undisputed evidence, that from the time Douglass left the deceased there was nothing to interfere with his safe crossing on Hazelwood avenue for a very appreciable length of time. It is certain that he had all of the time consumed by Douglass in walking 175 feet, after which the headlight of the approaching train became visible to him. There was nothing to obstruct a like view by one crossing the tracks at Hazelwood avenue. The roar of the oncoming train was audible to Douglass before he could see the headlight. It must have been equally audible to one in the act of crossing at the highway who was using his senses, and, as we have already stated; a person so crossing would not only have had all of the time expended by the witness in walking 175 feet, but also the additional time during which the express train was traveling the 385 feet from the point where its light became visible to the crossing. There were but two main tracks to cross and these could hardly have covered more than a space of twenty feet.

Whilst these considerations might make it very difficult to escape the conclusion that the deceased, even if the evidence had shown he was struck on the crossing, was guilty of contributory negligence in walking in front of an approaching train whose light and noise must have warned his senses, yet we do not refer to them for that purpose. Rather for the purpose of showing that it is extremely improbable that he was struck on the crossing at all. But it is not necessary for us to go even that far. The body of the deceased was found on the right of way of the defendant company. If he was traveling on that right of way and not on the highway when he was struck, the company is not liable. The inference that he was so struck is certainly as reasonable and as probable, under the facts we have recited, as the other inference on which the plaintiff’s case entirely rests, to wit, that he was struck while attempting to cross on Hazelwood avenue. In such cases, to permit a jury to draw the inference which convicts the defendant of negligence is but to sanction their conjecture as to the manner in which the deceased met his death.

It is doubtless true that a plaintiff is not required to prove by direct evidence every essential fact of his case. Where certain facts are established by proof, and where men of reasonable intelligence will naturally and irresistibly draw from those facts a certain conclusion, such an inference may be drawn by a jury and furnish a sufficient foundation to support a verdict. But where, in an action like the present one, every fact proved will support an inference that excludes liability just as strongly as the contrary one, then we think a jury is stepping into the field of speculation and conjecture when they undertake to say that the theory upon which negligence rests is the one that truly accounts for what actually happened.

But we do not think we are obliged to rest the conclusion we have reached on our own reasoning from the facts exhibited in this record. In Penna. R. R. Co. v. Mooney, 126 Pa. 244, the deceased was the foreman of a gang of men who had been laying some track for the company. A short time before the accident he with his fellow workmen had been walking along the track approaching a crossing called Green lane. At that point he left the track for a few moments. Just as he returned to the track, at the point where the latter and the highway intersected, he was struck and killed. The single witness who saw the collision testified that at that moment he was just stepping on to the tracks along the highway, and in answer to a question, declared that he was not just stepping on the highway from the tracks. In disposing of this question the Supreme Court, in an opinion by Mr. Justice Green, said: “It matters but little, however, whether Mooney was crossing the highway lengthwise and between the rails of the track, or crossing the railroad and between the rails in the highway, at the moment he was struck. He was on the track or he would not have been struck. If he was crossing the highway he was a trespasser and there could be no recovery, and if he was crossing the track he was guilty of most manifest contributory negligence in stepping upon the track immediately in front of an approaching engine.”

In Welsh v. R. R. Co., 181 Pa. 461, we have a state of facts so similar to those exhibited by the record before us as to irresistibly draw this case into the same category with itself. Mr. Justice Dean, speaking for the court, thus states the essential facts of that case: “A highway or street in the borough of Hawley, Wayne county, crosses the railroad track of defendant company at grade. The defendant maintained gates at the crossing, and a man to operate them during the day, but not at night; it also maintained three lamps at the crossing which were kept lighted during the night. Between 9 and 10 o’clock at night, on November 23,1895, a fireman on an engine which stood on a siding near the crossing, found Patrick Welsh, son of plaintiff, lying a few feet from the crossing between the tracks of the railroad; he was badly bruised and crushed, and died in a few hours afterwards.” We perhaps should have stated that in the case before us, as in the one cited, safety gates were maintained at this crossing during the daytime but were not operated at night. The testimony shows that the crossing was lighted with an electric arc light; and thus the conditions present in the two cases seem to have been in every essential way similar, if not identical. Some evidence of negligence in the manner of operating the train having been shown in that case, the learned trial court submitted the question to the jury and afterwards entered a judgment for the plaintiff on the verdict they rendered. In reversing this judgment without a venire, the learned opinion judge goes on in the following language: “No one saw deceased on the crossing; though near to it, he was not on it when found; no one saw him struck by a train. If struck by a train, whether he was on the crossing when struck or was approaching it from the railroad track is not known. Assuming, then, as to the general public, the company was negligent in not operating the gates at night, or in not maintaining a flagman at night, or in not keeping a sufficient light, this negligence must be so connected with the injury to deceased as to afford a presumption that the negligence caused the injury. To make the connection, we must presume he was thrown from the crossing to the track; and further, presume he was lawfully upon the crossing when struck.” That language could be applied with as much force to the facts of this case as in the case where it was actually used.' It may be that if it could have been shown that the deceased in this case was struck while upon the crossing, then the fact that he had been moving along the highway a few moments before towards the crossing and towards his home might furnish ground for the presumption that he was lawfully upon the crossing. But having assumed that much, there still remains to be taken the all important step that carries us to the conclusion that he was struck while thus upon the crossing, and it is this assumption which it seems to us, in the light of the cases, cannot be distinguished from a simple conjecture.

In Grant v. P. B. & W. R. R. Co., 215 Pa. 265, “The body of the deceased was found on the railroad at some little distance from a permissive crossing, and blood marks at the crossing indicated that he had been struck there. This was all the evidence as to the accident. No witness saw it.” In that case it is quite apparent that there existed a fact, certainly of some significance, that is not present in our case, to wit, the blood on the crossing. It would seem as if in such a case there would certainly be stronger ground to support the assumption that the deceased was struck while actually on the crossing than there is in the present case. The only other fact in that case that would at all differentiate it from the one before us is that there was some evidence that the deceased had been known to use the railroad tracks at times when going from his house to the place he had started to reach on the occasion when he met his death. That testimony, of course, did not tend to show that on the particular occasion, then under investigation, the deceased was struck while traveling on the right of way and not while on the crossing. The most it could tend to make clear was that the unfortunate accident might have happened in either way and that it would be simply a conjecture on the part of the jury to undertake to determine what the actual fact was. Therefore the court said: “If deceased was walking the tracks longitudinally he was guilty of plain contributory negligence, and as the testimony was that he was in the habit of using both ways, the jury could only guess which way he took on that occasion.”

If our common experience of the habits of men, and especially of those living in close proximity to the tracks of a railroad, led us to the conclusion that they would never take short cuts across it but always go around by the highway, there might be some stronger ground for the assertion that the inference drawn by the jury in this case was so natural and so in accordance with our common experience that it could properly support a verdict. But unfortunately for this plaintiff, the result on the human mind of familiarity with danger leads to just the opposite conclusion.

But it is argued that this case should rather be classed with those of which Haughey v. Pittsburg Railways Co., 210 Pa. 363, and McGovern v. Union Traction Co., 192 Pa. 344, are illustrations. We cannot think so. In cases of street railways it is to be observed that the foot passenger has a lawful right to the use of any portion of the street. He cannot be convicted of being a trespasser because he is on the tracks of a street railway company at any part of the public highway they occupy. Nor can he be judicially declared guilty of contributory negligence merely from the fact that he attempts to cross the street with an approaching car in sight. Otherwise, in the crowded streets of our cities he could never cross at all, and the doctrine would be impracticable. In Penna. R. R. Co. v. Weber, 76 Pa. 157, also relied on by the appellee, the basic fact that the deceased was killed while on a public crossing was a conceded fact in the case. Here it is the fact not proven and it can only be inferred from other facts which just as naturally and just as properly support the contrary inference that would excuse the defendant from legal liability.

Fairly applying to the case, as we have it before us, the principles declared in the decisions we have cited, we cannot escape the conclusion that the defendant's case was lacking in one most essential particular, and that consequently the judgment now appealed from is without sufficient legal foundation to support it. The learned trial judge should therefore have affirmed the request of the defendant for binding instructions, and the first assignment of error must be sustained.

Judgment reversed.


author: Henderson, J.,

text:
    Goldie v. Pittsburg & Lake Erie Railroad Company, Appellant.

      Negligence — Railroads—“Stop, look and listen ” — Grade crossings— Contributory negligence — Case for jury.

    1. Where a woman about to go over a crossing of a railroad where there are four tracks, stops on the first track, when she is invited by the track foreman to continue over, and in doing so is struck jüst as she is leaving the third track, by a locomotive which had been standing about twenty or thirty feet from the crossing when she started, and the locomotive gives no signal, the case is for the jury and a verdict and judgment for plaintiff will be sustained. In such a case the evidence as to the trackman’s invitation may be taken as a part of the res gesta.

      Pleading — Practice, C. P. — Negligence.
    2. The plaintiff in an action for negligence is not bound to sustain all the averments of the declaration. Where the evidence supports an allegation of the declaration, which if proved would entitle the plaintiff to a verdict, it is sufficient.
    Argued April 28, 1910.
    Appeal, No. 174, April T., 1910, by defendant, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1905, No. 157, on verdict for plaintiff in case of Thomas Goldie v. The Pittsburg & Lake Erie Railroad Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ,
    Affirmed.

      October 10, 1910:
    Trespass to recover damages for personal injuries. Before Macearlane, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $1,235. Defendant appealed.

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

      Samuel McClay, with him Reed, Smith, Shaw & Beal and Wm. A. Seifert, for appellant,
    cited: Hauser v. R. R. Co., 147 Pa. 440; Corcoran v. Penna. R. R. Co., 203 Pa. 380; Muckinhaupt v. R. R. Co., 196 Pa. 213; Gangawer v. R. R. Co., 168 Pa. 265; Elston v. R. R. Co., 196 Pa. 595; Caldwell v. R. R. Co., 58 Mo. App. 453; McLean v. A. Schoenhut Co., 225 Pa. 100.

      Oliver K. Eaton, with him Petters & McAllister, for appellee,
    cited as to contributory negligence: Sloan v. Ry. Co., 225 Pa. 52; Ely v. R. R. Co., 158 Pa. 233; Martin v. R. R. Co., 176 Pa. 444; Arnold v. R. R. Co., 161 Pa. 1; Hoffmeister v. R. R. Co., 160 Pa. 568; Ayers v. Ry. Co., 201 Pa. 124; Bracken v. R. R. Co., 222 Pa. 410; Stover v. Penna. R. R. Co., 195 Pa. 616.
    Cited as to the alleged variance: Williams v. Ry. Co., 31 Pa. Superior Ct. 580; Stegmaier v. Coal Co., 225 Pa. 221; Cameron v. Traction Co., 216 Pa. 191; Schmelzer v. Traction Co., 218 Pa. 29.
   Opinion by

Henderson, J.,

The verdict of the jury established the negligence of the defendant, and the propriety of submitting that question is made apparent by a consideration of the evidence. The only witnesses who testified about the accident stated very positively that no warning was given of the approach of the locomotive before it reached the crossing. This crossing was a public thoroughfare in the borough of Port View leading from McKeesport, along which Mrs. Goldie must pass in going to her home. That it was the duty of the defendant’s employees in charge of the locomotive to give adequate signals of the approaching train at such a crossing has been so often declared that the citation of authorities is unnecessary. The defense principally relied on is that the plaintiff cannot recover because of the contributory negligence of his wife. This negligence is said to exist in the fact that she went onto the track in front of the locomotive, Whether this was an act of negligence or not depended on the circumstances which according to the plaintiff’s case were these: There were four railroad tracks at the crossing; Mrs. Goldie was on her way home and stopped on the first track which was the one nearest to the river; she looked and listened; at that time the crossing was clear but a locomotive to which a pay car was attached was standing on the third track from her twenty or thirty feet down the track from the crossing; it does not appear how long the car had been there; nothing was proved to indicate that the locomotive was about to start, and it is not pretended that it was operated on schedule time; while Mrs. Goldie stood on the first track the track foreman of the defendant who was on the opposite side of the tracks signaled to her to cross, whereupon she proceeded on her way; at this time the engine had not been started; before she cleared the third track she was struck'by the locomotive. The only witness who saw the accident thus describes it: “She was just about the last foot off the rail when she got struck.’’ She was about in the middle of the track on which the engine was running when the locomotive alarm was sounded, at which time as the witness stated “it was too late for her then to turn.” The engine started after she undertook to make the crossing and while she was going over the second track. We are not able to declare on the facts thus presented that she was guilty of contributory negligence. What she should have done under the circumstances is rather a question for the jury. There is no evidence whatever of negligence up to the time when the locomotive commenced to move. It had a light load and started easily. Whether she observed its starting does not appear, and if she did, considering her situation with reference to the tracks, the course she took may have appeared to be the most prudent. If she was suddenly placed in a position of difficulty or danger without fault of her own she could not be required to exercise the best judgment in extricating herself: Malone v. R. R. Co., 152 Pa. 390; Cannon v. Traction Co., 194 Pa. 159; Stover v. Penna. R. R. Co., 195 Pa. 616. It is not a case of a person stepping in front of a moving train and being immediately struck. She had observed proper precautions before attempting to cross and was well-nigh out of reach of the engine at the time she was struck. There was a short interval between the engine before it was started and the place where the collision occurred, and there was a failure to give timely warning that it was about to be started or was in motion. It was undoubtedly the duty of Mrs. Goldie to exercise care according to the circumstances and these as was said in Hoffmeister v. Penna. R. R. Co., 160 Pa. 568, had changed from the time she stopped and looked before going on the tracks: “then she was in a place of safety and if defendant had given proper warning she was bound to hear and heed it; but being upon a crossing over five tracks without negligence then it was for the jury to say whether she was negligent in not turning back or in not hastening her steps or in not stopping between the tracks with a locomotive four to six seconds off.” Penna. R. R. Co. v. Garvey, 108 Pa. 369, was a case of a pedestrian crossing the defendant’s tracks in which it was said: “It cannot be declared as a rule of law that he must stop, look and listen between the different tracks lying close to each other. Indeed, to so stop instead of hastening to cross all of them might have been evidence of negligence. Whether it was less dangerous to move continuously across the tracks than to loiter between them was a question for the jury.” Stover v. Penna. R. R. Co., 195 Pa. 616, is to the same effect as is also Ayers v. Ry. Co., 201 Pa. 124. These authorities and others which might be cited lead us to the conclusion that the court was not in error in holding that the case was not so clear as to justify the withdrawal of it from the jury. The action of the track foreman in inviting Mrs. Goldie to cross the tracks might well be regarded as part of the res gestae as was done in Ayers v. Ry. Co., 201 Pa. 124, and McCarthy v. R. R. Co., 211 Pa. 193. It is true that such action of the defendant's employee did not excuse the plaintiff's wife from the exercise of due care, but the evidence was admissible for the purpose of showing the circumstances in which Mrs. Goldie was placed and to aid in answering the inquiry whether she acted as a person of ordinary prudence ought and would have done.

We are unable to agree with the learned counsel for the appellant that the judgment cannot be sustained on the statement of claim filed. One of the complaints was that the defendant did not have the locomotive under reasonable and proper control; another, that it failed to give any signal or warning as the train approached the crossing. The evidence would justify the conclusion that default in either of these respects may have been the proximate cause of the accident. The plaintiff was not bound to sustain all the averments of the declaration. Where the evidence supports an allegation of the declaration which if proved would entitle the plaintiff to a verdict it is sufficient: Stegmaier v. Keystone Coal Co., 225 Pa. 221. After a careful consideration of the case we are of the opinion that the judgment should be sustained.

The judgment is affirmed.


author: Rice, P. J.,

text:
    Kurtz v. Farrell.

      Equity — Decree pro confesso — Setting aside decree.

    While the courts exercise considerable liberality in the disposition of a motion to set aside a decree pro confesso, particularly where a meritorious defense is sought to be set up, yet the motion is not to be granted as matter of course, but only upon cause shown. If the lower court finds that the defendant has been guilty of a default of an aggravated character, and that the special defense set up with a motion to take off the decree, has been previously adjudicated, the appellate court will not interfere with an order refusing to strike off the decree pro confesso.
    Argued May 3, 1910.
    Appeal, No. 115, April T., 1910, Fifth District, by Knights of Pythias Lodge No. 493, from order of C. P. Jefferson Co., Nov. T., 1907, No. 3, refusing to strike off decree pro confesso in case of T. M. Kurtz et al. v. Laura Farrell et al.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Motion to strike off decree pro confesso.
    Reed, P. J., filed the following opinion:
    This is an application to strike off the order whereby the bill in this case was taken pro confesso, and to permit the defendant to file its answer to said bill. The matter of the bill was decreed by the court ex parte at the time the bill was taken pro confesso, but no objection is made to the form of the decree, and the allegations of the bill fully warrant and support the same. This decree, however, was not formally served on the defendant, but I believe the defendant’s counsel had notice of the same at the time it was entered. The court, however, is not asked to set the decree aside for want of notice, or because of any objection to the matter thereby adjudicated or the form of its adjudication, but is asked to strike off the order or decree directing the bill to be taken pro confesso so that the defendant may have the opportunity of filing an answer and of being heard on the merits of the case.
    This bill was served on the defendant September 9, 1907, and was taken pro confesso, for want of an answer, May 17, 1909. There were a number of these bills filed relating to- different series of stock in the plaintiff association. The first one was filed in 1904, relating to the sixth series, and, after a full hearing on the bill and answer, and testimony taken in support of the allegations and averments thereof, a final decree was entered in favor of the plaintiffs, June 27, 1907, in accordance with the prayers of said bill. This was followed by the filing of other bills, including the one now under consideration, in which the plaintiffs and defendants were represented by the same counsel. After the determination of the bill filed at No. 4 of August Term, 1904, the counsel representing the parties, January 3, 1908, submitted the bill filed at No. 7 of August Term, 1905, on an agreement of facts, which were substantially, and so far as material, the same state of facts found by the court, after full hearing and investigation had, in the case at No. 4 of August Term, 1904. The counsel executing this agreement reserved the right of appeal to an appellate court from the judgment of this court, and expressly stated that it was in order that the “questions involved may be settled in this case without having to take an appeal in each of the several cases brought and now pending in the Court of Common Pleas of Jefferson County, wherein similar questions are in controversy.” This last mentioned case was finally determined by the Superior Court, May 21, 1909: Kurtz v. Bubeck, 39 Pa. Superior Ct. 370.
    The defendant was in default from thirty days after the bill was served, which was September 9, 1907. The judgment pro confesso was taken May 17, 1909, and this motion to strike it off was not made until June 28, 1909. There is no explanation made, nor excuse offered for this long delay in filing an answer. One was presented and filed with the motion to strike off, and in the motion it is stated that the answer “sets up a special defense, not heretofore set up in any of the cases, and which defense is particularly a special defense for the said defendant Lodge.” If I were satisfied that the defendant had a special defense that had a reasonable chance of prevailing, I would be disposed to relieve it from the consequences of its default, although of a rather aggravated character, if I could find any legal or equitable excuse for doing so. But a careful consideration of the answer presented leaves no doubt in my mind that all its material averments have' been adjudicated in the cases heretofore decided and referred to. The new matter averred, which it is alleged constitutes a special defense, not heretofore set up in the cases passed upon, consists (1) in an averment that it was represented by the “secretary and officers of said association duly authorized to represent it in the sale of its stock” that the stock of the fifteenth series would mature in eight years, which proved to be incorrect. This representation, of course, was at most but an expression of opinion, and could not be held binding or obligatory on the association; (2) that it was further represented that by the payment of $90.00 per share in advance that said sum would fully pay the stock to its maturity, and that no further payments would be required. If it is intended to aver, as it evidently is, that the defendant had a special contract with the plaintiff association by which it was to get its stock for $90.00 per share, paid in advance, it is only necessary to say that such contract was ultra vires, and of no binding effect. The defendant very properly treated these alleged representations as of no binding force by continuing to pay the monthly dues on its stock for a period of thirty months after the expiration of the eight years in which it was to be matured by the payment of $90.00 in advance, as appears by subsequent averment of its answer. The allegations that the plaintiff association acted fraudulently and wrongfully in the manner of conducting its business, and in not disclosing to the defendant the true situation of its financial condition, etc., are not new or special in this case, or to this defendant. They are merely a rehash of what has been already considered and passed upon in the former cases. The fact that they may be dressed in a different garb does not change their character, or add to their potency in defeating the right of the plaintiffs to have refunded any excess payments made to the defendant on its stock.
    October 10, 1910:
    An order that the bill be taken pro confesso, on failure to file an answer within thirty days after service of the bill, is as of course. The fact, however, that such order is granted on application to the court, as in this case, neither adds to nor takes from its efficiency in the accomplishment of its purpose. The motion made to the court May 17, 1909, for judgment pro confesso, etc., and the order of the court thereon, must at least be treated and given the effect of an order entered as of course in the cause, that the bill be taken pro confesso, and inasmuch as there is nothing in the present motion, or answer accompanying the same, to warrant the court in striking it off, and for the further reason that I am of the opinion that to do so would only add costs for the defendant to pay, I am constrained to let it stand.
    And now, October 4, 1909, the motion to strike off the order or decree that the bill be taken pro confesso is refused.

      Error assigned was the order of the court.

      H. Clay Campbell, for appellant.

      W. W. Winsloio, with him J. L. Fisher and C. Z. Gordon, for appellees.
   Opinion by

Rice, P. J.,

The bill in equity in this case was filed to November Term, 1907, of the court of common pleas of Jefferson county. The docket entries in the case are not printed in the appellant’s paper-book, but it is stated in the opinion of the learned judge of that court, and is undisputed, that the bill was served on September 9, 1907. Nor is it alleged that the usual rule and notice to appear within fifteen days and to answer within thirty days were not served as prescribed by the equity rules. Equity rule 29 provides that in default of compliance with the rule to answer the plaintiff may, at his election, enter an order as of course in the cause that the bill be taken pro confesso. It further provides that in such case the cause shall proceed ex parte and the case may be placed on the next argument list and the matter of the bill may be decreed by the court, when there reached in its order, if the same can be done, without an answer, upon the allegations in the bill, which, without further proof, shall be taken as admitted. On May 17, 1909, the plaintiffs, instead of entering an order as of course taking the bill pro confesso, as ¡they had a right to do, moved the court for judgment pro confesso and at the same time to decree certain matters of the bill. Upon this motion the court made the following order: “Motion granted and judgment pro confesso directed to be entered sec. reg.” If there was irregularity in this mode of procedure it did no harm, for, as already suggested, the plaintiffs were entitled as of course to take the bill pro confesso for want of an answer. Nor did the appellant in its motion, from the refusal of which this appeal was taken, question the decree on the ground of defectiveness, or error of form or substance, or of irregularity of procedure. Its motion was to strike off the decree pro confesso and permit it to file its answer (which was presented with the motion) “setting up as it does a special defense not heretofore set up in any of the cases and which defense is particularly a special defense for the said defendant lodge.” Treating the motion strictly as a motion to set aside the decree pro confesso, we think there was no error in refusing it. Equity rule 30 provides, that when the bill is taken pro confesso and the court shall have proceeded to decree as provided in the preceding rule, such decree so rendered shall be deemed absolute, unless the court, or a law judge thereof, shall, within fourteen days after the service of notice of such decree on the defendant, set aside the same and give the defendant time for filing an answer, upon cause shown. It does not appear in the present case that notice of the decree was served on the defendant, although the learned judge says in his opinion that he believed the defendant’s counsel had notice of it at the time it was entered. Be that as it may, the defendant waived service of such notice by its motion, which was made on June 28, 1909, to set aside the decree. But in the absence of proof that notice of the decree was served on the defendant, the defendant’s motion could not be dismissed upon the ground that it was not made in time, under the equity rule, and we do not understand that this consideration entered at all into the judge’s ruling reffising the motion. It is to be observed, however, that while the courts exercise considerable liberality in the disposition of the motion to set aside a decree pro confesso, particularly where a meritorious defense is sought to be set up, yet the motion is not to be granted as matter of course, but only upon cause shown. Referring to the dates when the bill was filed and the decree was entered, it will be seen that the defendants were guilty of great laches. No explanation was made to the court for the delay, nor is any excuse therefor apparent in the nature of the case. The single "cause shown” in the motion was the fact that this appellant had a special defense which had not been set up in the other similar cases, growing out of the affairs of this building and loan association, that had been before the court. The learned judge took an extremely liberal view when he said that if he were satisfied that the defendant had a special defense that had a reasonable chance of prevailing he would be disposed to relieve the defendant from the consequences of its default, although of a rather aggravated character, if he could, find any legal or equitable excuse for doing so. But upon reconsideration of the question in this view he concluded that there was no such difference between this case and those that had been previously adjudicated as would justify him in taking off the default. Such differences as did appear were carefully considered and shown to be insufficient to defeat the right of the plaintiffs to have refunded any excess payments made to the defendant on its stock. The substantial questions raised by the answer proposed to be filed, as well as the question of jurisdiction raised on the argument of this appeal, were elaborately considered in Kurtz v. Bubeck, 39 Pa. Superior Ct. 370. For the reasons above suggested, taken in connection with those set forth more at length in the clear and satisfactory opinion of the learned judge below, in which we concur, we conclude that no error was committed in refusing to strike off the decree pro confesso.

The order refusing the motion to strike off the order or decree that the bill be taken pro confesso is affirmed at the costs of the appellant.


text:
    Commonwealth v. Pugliese, Appellant.

      Criminal law — Conspiracy—Obtaining money by false representations — Evidence.
    1. A person may be convicted of conspiracy to cheat and defraud where the evidence shows that he and another person received from a number of workmen different sums of money at different times, by means of threats and false representations that the payment of a certain amount of money was necessary in order to secure employment for such workmen at a certain mine, and that additional daily payments were to continue while the workmen were at labor in the mine. It is immaterial how the money thus fraudulently obtained was finally disbursed.

      2. In such a case evidence is admissible that the defendants cheated another person other than the two persons mentioned in the indictment where such cheating was a part of the same general system practiced by the defendants.
    Argued May 3, 1910.
    Appeal, No. 154, April T., 1910, by defendant, from judgment of Q. S. Jefferson Co., Nov. Sessions, 1909, No. 18, on verdict of guilty in case of Commonwealth v. Pugliese.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Indictment for conspiracy to cheat and defraud Salvatorie Cammaratti of the sum of $75.00 by means of threats and false representations.
    The facts are stated in the opinion of the Superior Court.
    At the trial Mike Bosko was asked this question:
    “Q. What transactions, if any, had you with them concerning work in Adrian mines?”
    Mr. Gillespie: Objected to for the reason that we are not charged in these indictments with cheating and defrauding anybody but Barbara and Cammaratti. One indictment is for defrauding Cammaratti and the other is for defrauding Barbara. We are not charged with getting any money from Mike Bosko under these indictments.
    The Court: That might all be true. He could not be convicted of defrauding or cheating those parties, but still the evidence would be competent as bearing on the intent with which he acted with these other parties, would it not?
    Mr. Gillespie: No; I do not think we would be compelled to meet that. We have pleaded to indictments for cheating and defrauding and threatening to cheat and defraud two parties, Vincenzo Barbara and Salvatorie Cammaratti. Those are the only parties that we are alleged to be defrauding, and I undérstand the principle of law to be well settled that you cannot prove a crime by proving another crime, even of the same character.

      The Court: There are lots of cases in the books which allow proof to show that the transaction is a part of a transaction or series of transactions, to show system.
    Mr. Gillespie: I object to the question in its present form.
    “Q. [Question amended to read as follows]: What transactions, if any, had you with Frank Pugliese and Charles Farnella concerning work in Adrian mines, in the presence of Vincenzo Barbara and Salvatorie Cammaratti?”
    Mr. Gillespie: Objected to for the reason that there is no charge in the indictments of any transactions between the defendant and anyone except Barbara and Cammaratti. What was done with some one else in their presence would not be evidence.
    The Court: We think it is a part of the same transaction and it would be evidence. The objection is overruled, the testimony admitted, and at the request of his counsel a bill of exceptions is sealed to the defendant. [1]
    Verdict of guilty upon which the defendant was sentenced to the workhouse for one year. Defendant appealed.

      Errors assigned were (2) ruling on evidence, quoting the bill of exceptions and (3-10) various instructions.

      W. M. Gillespie, with him Charles Corbet, for appellant,
    cited as to proof of another distinct offense: Com. v. Saulsbury, 152 Pa. 554.

      B. M. Clark, with him Jesse C. Long, C. Z. Gordon and A. B. Stewart, for appellee.
    Evidence of motive, criminal intent, system, guilty practice and knowledge or to exhibit a chain of circumstances, evidences of guilt, may be given by one not named or mentioned in the indictment: Com. v. Moorby, 8 Phila. 615; Com. v. Charles, 14 Phila. 663; Com. v. Hutchinson, 6 Pa. Superior Ct. 405; Com. v. Johnson, 133 Pa. 293; Com. v. Ferrigan, 44 Pa. 386; Goersen v. Com,, 106 Pa. 477; Wharton on Crim. Law, secs. 647-650.
    October 10, 1910:
   Opinion by

Orlady, J.,

The indictment in this case charges that this defendant and Charles Farnella, together with other persons unknown, confederated and conspired together to cheat and defraud one Cammaratti of the sum of $75.00 by means of threats and false representations, etc.

The commonwealth established by direct testimony, which was clear, explicit and uncontradicted, that Pugliese and Farnella received from Cammaratti, Barbara, Bosko and Iacomo, different sums of money at different times, under the inducement that the payment of a certain amount of money was necessary in order to secure employment for them at the Adrian mines in Jefferson county, and that additional daily payments were to continue while they were at labor in the mines. The superintendent of the mines was put on the stand and testified positively that all such inducements were made without authority from anyone in charge of the work, and that no part of such payments was ever received by him or by any other with his knowledge. Had the defense then rested there could not have been any doubt as to the guilt of the defendant, but he took the stand in his own defense and not only confirmed the testimony of the commonwealth witnesses as to the payments to him, and the promises made by him to secure the money, but that this system had been in operation for many months, and had resulted in his receiving from these and other employees the sum of about $4,000. His only explanation was that the money had been paid by him to the superintendent of the mines under an arrangement made between themselves. The superintendent was not on trial and is entitled to his day in court, but for the purposes of this case it is not material how the money thus fraudulently obtained was finally disbursed. Whether divided among many or retained by the defendant, its payment by these laborers to this defendant under the undisputed testimony, was induced by means of the threats and fraudulent representations of the conspirators, Pugliese and Farnella, to cheat and defraud these employees.

The defense covered a wide range, and the long and tedious trial was fairly conducted by the trial judge. The whole question became one of fact depending on the credibility of the witnesses called by the commonwealth and the defendant as to the promises and representations made by the defendant and his associate: Com. v. Campolla, 28 Pa. Superior Ct. 379.

The testimony of Bosko was properly received, as it tended to show a part of the same system as. described by the other witnesses, and showed intent, motive and knowledge: Com. v. Benedick, 39 Pa. Superior Ct. 477; Com. v. Shanor, 29 Pa. Superior Ct. 358; Com. v. Wickett, 20 Pa. Superior Ct. 350; Com. v. House, 223 Pa. 487.

The defendant had a fair and impartial trial and none of the assignments of error are sustained. The judgment is affirmed and it is ordered that the defendant appear in the court below at such time as he may be there called, and that he be then committed to serve that portion of his term of imprisonment which had not expired at the time this appeal was made a supersedeas.