text:
    Badman v. Pennsylvania Railroad Company, Appellant.

      Railroads — Fire from sparks — Negligence—Evidence—Case for jury.

    1. In an action against a railroad company to recover damages for the destruction of buildings by fire alleged to have been caused by some sparks from an engine, the case is for the jury, and a verdict and judgment for plaintiff will be sustained, where the evidence tends to show that the day on which the fire occurred was warm and dry, with a light wind blowing from the railroad towards the buildings; that there was no fire in the buildings at the time; that shortly after a particular engine, whose number was designated, had passed, the fire broke out; that this engine had for several days before given out large sparks; that just before the fire the engine was puffing and moving with a strain, although it had a light load and an easy grade; and that this method of operating the engine resulted in the emission of sparks, although it was equipped with a spark arrester and spark guard.
    2. When the plaintiff can show by evidence, direct or circumstantial, not only that the sparks from the defendant’s engine communicated the fire to his building, but that they were emitted by reason of defendant’s negligence, it is sufficient to put the case to the jury for the purpose of showing negligence, and it is not a presumption of law that the defendant is called upon to meet, but affirmative evidence showing negligence. This can only be met by other evidence, and when such is introduced for the purpose, there is a conflict of evidence, and that necessarily sends the case to the jury.
    Argued March 14,1910.
    Appeal, No. 14, March T., 1910, by defendant, from judgment of C. P. Snyder Co., Oct. T., 1907, No. 12, on verdict for plaintiff in case of Rebecca Badman v. The Pennsylvania Railroad Company.
    Before Rice, P. J., Hendeeson, Oelady, Head, Beavee and Poetee, JJ.
    Affirmed.

      Trespass to recover damages for the destruction, of buildings by fire. Before McClure, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $569. Defendant appealed.

      Errors assigned were (1) in refusing binding instructions for defendant; (2) in overruling defendant’s motion for judgment n. o. v.

      Andrew A. Leiser, with him Andrew A. Leiser, Jr., for appellant.
    — “Hard puffing” is not evidence of negligence: P. & R. R. R. Co. v. Yerger, 73 Pa. 121.
    Where it is admitted or proved that the engine had an approved spark arrester in good condition the fact of a fire will not of itself prove negligence, and the court should direct a verdict for the defendant: McCully v. Clarke & Thaw, 40 Pa. 399-408; Lack. & Bloomsburg R. R. Co. v. Doak, 52 Pa. 379-381; Erie Ry. Co. v. Decker, 78 Pa. 293; Jennings v. R. R. Co., 93 Pa. 337; P. & R. R. R. Co. v. Schultz, 93 Pa. 341; Reading & Columbia R. R. Co. v. Latshaw, 93 Pa. 449; Penna. R. R. Co. v. Page, 11 Cent. Repr. 424.

      Albert W. Johnson and Frederic E. Bower, for appellee.—
    The case was for the jury: Penna. R. R. Co. v. Stranahan, 79 Pa. 405; Phila. & Reading R. R. Co. v. Hendrickson, 80 Pa. 182; Penna. R. R. Co. v. Hope, 80 Pa. 373; Penna. Co. v. Watson, 81* Pa. 293; Haverly v. R. R. Co., 135 Pa. 50; Henderson v. R. R. Co., 144 Pa. 461; Byers v. R. R. Co., 222 Pa. 547; John Hancock Ice Co. v. R. R. Co., 224 Pa. 74; Stephenson v. R. R. Co., 20 Pa. Superior Ct. 157; Elder Twp. School Dist. v. Penna. R. R. Co., 26 Pa. Superior Ct. 112.
    Negligence may be established by evidence that engine was improperly operated: Thomas on Negligence, 649; Chicago & Alton R. R. Co. v. Quaintance, 58 Ill. 389; Huyett v. Phila. & Reading R. R. Co., 23 Pa. 373; Phila. & Reading R. R. v. Hendrickson, 80 Pa. 182; Penna. R. R. Co. v. Hope, 80 Pa. 373.

      April 18, 1910:
   Opinion by

Orlady, J.,

The plaintiff’s property consisting of several acres of ground, adjoins the south side of the Sunbury & Lewistown branch of the Pennsylvania Railroad Company, and on it there was erected a brick dwelling house, frame stable, wagon shed, wood shed, and a number of small wooden outbuildings.

On June 27, 1906, a number of these buildings were consumed by fire, alleged by the plaintiff to have been started by sparks thrown from defendant’s engine No. 951, and the jury specially finds that this fire was caused by the improper operation of this engine. The principal contention in the court below and in this court, is found in the first assignment of error, “that under all the evidence, the plaintiff is not entitled to recover and the verdict must be for the defendant.” The case was tried with exceptional fairness, and after a painstaking consideration by the trial judge, a motion for judgment non obstante veredicto was overruled, and judgment was entered on the verdict. All charges of defect in construction of the engine and its equipment with a properly designed spark arrester, were eliminated on the trial, and the plaintiff’s contention was narrowed down to the question, whether or not this engine had been carelessly and negligently operated.

The day on which the fire occurred was warm and dry, with a light wind blowing from the railroad toward the plaintiff’s buildings, and the undisputed testimony shows that there was no local originating cause for the fire. The stove fire in the house had been allowed to go out at breakfast, after which time there was no fire about the house or any of the outbuildings. The members of the family and neighbors were engaged in their usual work in the neighborhood, and noticed the fire about half-past one o’clock, on the roof of one of the outbuildings, a few minutes after engine No. 951 had passed, when it was described by several witnesses to be, “as big as a hat,” “like a bushel measure,” “three or four feet in diameter,” and it resulted in the destruction of the buildings and their contents.

On this day, engine No. 951 came to the station at Beaver Springs, at 1:30, hauling a train consisting of two flat cars, one empty, and three steel cars loaded with ballast, passed the plaintiff’s property on a level track which is about five feet above the adjoining property. The plaintiff stated that she was seated on her porch, saw the engine and train passing, and when they came back, “they started off like tearing everything up and steam all on, and went up there like crazy,” and soon thereafter the fire was discovered. The puffing of the engine was so extraordinary as to attract the attention of other witnesses, who described it as “puffing more than usual,” “pulling out lively,” “drawing pretty sharp.” “It reminded me of an engine standing on a track, with a heavy load, and that could not start it, and the wheels would slip.” “Puffing as if going at a full rate of speed,” and “very hard puffing as if the wheels had slipped.”

One witness who had worked on this train for a number of days preceding the fire, stated that at times this engine would throw a great amount of sparks and cinders, as he states it, “I guess about as good a description as I could give you, as if you were out in a shower of hail, that would cut and burn,” and when asked how often it would do this, replied, “Quite frequently; I should say all the time I had been about it.”

The sparks and cinders discharged from this engine were described to be of the size of your finger and as big as an ordinary sized chestnut, and were hot enough to burn and blister, so that the employees on the train were obliged to go into the cabin for shelter and this state of affairs had existed for a number of days prior to the fire.

Neither the grade nor the weight of the train imposed an extra tax on the engine, and as aptly stated by the trial judge, in refusing the motion for judgment non obstante veredicto, “it is true there was no occasion for the loud puffing or heavy exhaust, as the engine was drawing á train of but five cars, three of which were loaded and two light, but this appears to be the weakness of the defendant’s position, for the jury has no doubt found, and upon competent evidence, that notwithstanding the fact that the train could and should have been gotten under way with a moderate exhaust, the engine started off with more than usual puffing, so as to attract the attention of a number of witnesses,” and adds the pertinent query, “ Can it be said that it is not negligence for this engineer, without occasion either to start his train or to maintain its speed, to cause his engine to exhaust heavily in close proximity to houses and buildings on a dry, hot day with the wind blowing toward them?” The defendant’s experts admitted that it was not necessary on this occasion to work the engine hard,- and that it would be carelessness on the part of the engineer to do so, so that, whether there was negligent or an unavoidable emission of the sparks which caused the loss of the plaintiff’s property by fire, raised a pure question of fact, upon, which a number of witnesses flatly contradicted each other, and the jury was properly called upon to decide it.

The origin of the fire is naturally the first essential of the plaintiff’s case, and as was said in Penna. R. R. Co. v. Hope, 80 Pa. 373, the jury must determine whether the facts constitute a continuous succession of events, so linked together, that they become a natural whole, or whether the chain of events is so broken, that they become independent, and the final result cannot be said to be the natural and probable consequence of the primary cause — the negligence of the defendant. It was said in Henderson v. Railroad Company, 144 Pa. 461, “While it devolved upon the plaintiff to prove by preponderance of evidence that the fire was communicated by sparks or cinders from the railway engines, it need not be shown that any particular engine was at fault, but it will be sufficient if the fire is proved to have been set by any engine passing over defendant’s railway, and the evidence may be wholly circumstantial; as, first, that it was possible for a fire to reach the plaintiff’s property from the defendant’s engines; and, second, facts tending to show that it probably originated from that cause and no other.” In Byers v. Baltimore & Ohio R. R. Co., 222 Pa. 547, Judge Potter quotes with approval what was said by Judge Henderson in Elder Township School District v. Penna. R. R. Co., 26 Pa. Superior Ct. 112, “While the burden is on the plaintiff to prove that the fire was negligently communicated by some engine of the company, the fact may be shown by. circumstantial evidence. Given the passing train, the accumulated combustible material, the fire breaking out therein within a few minutes after the train had passed, and communicating directly with the plaintiff’s building, there exists a state of facts from which the jury would be authorized to draw the inference of negligence on the part of the defendant.”

The facts in this case make it a specially strong one in the ‘ plaintiff’s favor. A bright, clear day, with a number of witnesses in full view of the premises, no fire in the house or about any of the buildings, no necessity for a heavy draught of the engine, the previous record of the manner in which the engine had been operated, the wind blowing in the direction of the plaintiff’s premises, the fires starting within but a few minutes after the engine was seen and heard to be working unusually hard, fully warranted the jury in believing them to form a combination of facts tending unequivocally to establish that the negligent operation of this engine was the sole cause of the fire: Hancock Ice Company v. Perkiomen R. R. Co., 224 Pa. 74; Haverly v. Railroad Co., 135 Pa. 50; Stevenson v. Railroad Co., 20 Pa. Superior Ct. 157; Van Steuben v. Central Railroad Co., 178 Pa. 367.

While it was contended by the railroad company, and without contradiction by the plaintiff that the engine was properly constructed and equipped with the modern appliances of a spark guard and arrester, it was just as clearly established that with all these mechanical devices in use on the engine, yet it is possible for an engineer to so manage his engine by the application of his draughts to the fire, that sparks and cinders may be forced through the spark arrester; that when the coal is in a certain degree of fusion, by the application of a great draught, the semifusible coal is forced through the spark arrester and, when exposed to the air, it cokes and expands to a size which at first view would contradict the existence of an efficient spark arrester, and that this fact is well recognized by all railroad operators, so that it is possible for coal in a semifusible state to be forced through proper spark arresters, and produce cinders of the size described by these witnesses, as the end of your finger” or “a good sized chestnut.”

The plaintiff’s verdict does not depend upon a mere theory or a .conjecture but is fully warranted by the testimony of a number of witnesses. As was said in Pennsylvania Company v. Watson, 81 * Pa. 293, “It would be difficult to prove that a building was set on fire by sparks from an engine, if the evidence in this case was not sufficient to prove that fact. The law in conferring the right to use an element of danger, protects the person using it, except for the abuse of his privilege., But in proportion to its danger to others, will arise the degree of caution and care he must use who exercises the privilege. Great danger demands higher vigilance and more efficient means to secure safety; where the peril is small, less will suffice. It is undoubtedly the duty of a railroad company using such dangerous machines fired up to intense heat, and running in close, proximity to houses and buildings, to use the utmost vigilance and foresight to avoid injury. It is the duty of those who use these hazardous agencies to control them carefully, to adopt every known safeguard, and to avail themselves from time to time of every invention to lessen the danger to others: Frankford and Bristol Turnpike Co. v. Philadelphia & Trenton R. R. Co., 54 Pa. 345; Thomas v. New York, etc., R. R. Co., 182 Pa. 538. Care and vigilance is required in the operation of the engines, and this is as important a consideration in the defendant’s operation of its engines, as is the equipment of the safety appliances, which are intended to prevent the emission of sparks: Railroad Company v. Latshaw, 93 Pa. 449; Albert & Lahr v. Northern Central Ry. Co., 98 Pa. 316. When the plaintiff can show by evidence, direct or circumstantial, not only that the sparks from the defendant’s engine communicated the fire to his building, but that they were emitted by reason of defendant’s negligence, it is sufficient to put the case to the jury for the purpose of showing negligence, and it is not a presumption of law that the defendant is called upon to meet, but affirmative evidence showing negligence. This can only be met by other evidence, and when such is introduced for the purpose, there is a conflict of evidence, and that necessarily sends the case to the jury. In, John Hancock Ice Company v. Perkiomen R. R. Co., 224 Pa. 74, Judge Mestrezat summarizes the question as follows: “The negligence of the defendant could arise in either or all of three different ways: (a) from an inefficient style or pattern of spark arrester; (b) from a proper spark arrester which was out of repair, or (c) from the negligent operation of the engine.” This case was rightly submitted to the jury in a clear and adequate charge; Matthews v. Railroad Co., 18 Pa. Superior Ct. 10; Stevenson v. Railroad Co., 20 Pa. Superior Ct. 157; Derminer v. New York Central R. R. Co., post, p. 538.

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


source: Caselaw Access Project

author: Orlady, J.,

license: Public Domain

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

      Railroads — Fire from sparks — Evidence—Negligence—Case for jury.

    1. Recovery may be had from a railroad company for the destruction of property by fire from sparks, on circumstantial evidence only, and where it is not shown by direct testimony that any particular engine emitted the sparks, nor that any of the engines were defectively constructed.
    2. In an action against a railroad company to recover damages for injuries to woodland alleged to have been caused by three fires from sparks within a couple of weeks, the case is for the jury where the evidence shows that defendant permitted an accumulation of dry combustible brush and other material on its right of way, and the witnesses for the plaintiff testify that on the occasion of each fire they were in close view of the premises, immediately preceding the passing of engines and that there was no fire within their range of vision; but that within a few minutes after the passing of an engine the fire was seen in close proximity to the railroad tracks from whence it was communicated to the woodland.
    Argued Oct. 29, 1909.'
    Appeal, No. 191, Oct. T., 1909, by defendant, from judgment of C. P. Clearfield Co., Dec. T., 1908, No. 232, on verdict for plaintiff in case of Jules Derminer v. New York Central & Hudson River Railroad Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.

      Trespass to recover damages for injuries to woodland alleged to have been caused by fires from sparks. Before Smith, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $360.50. Defendant appealed.

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

      Hazard Alex. Murray, with him Thomas H. Murray and James P. O’Laughlin, for appellant.
    — The fact that after the passage of a train dry grass and other combustible materials were discovered burning along the line of railroad is not of itself evidence of negligence on the part of the railroad company: Naftzinger v. Roth, 93 Pa. 443; Louisville, etc., Ry. Co. v. Stevens, 87 Ind. 198.

      A. M. Liveright, with him David L. Krebs, for appellee,
    cited: Elder Twp. School Dist. v. R. R. Co., 26 Pa. Superior Ct. 112; Stephenson v. R. R. Co., 20 Pa. Superior Ct. 157; Byers v. R. R. Co., 222 Pa. 547; John Hancock Ice Co. v. R. R. Co., 224 Pa. 74.
    April 18, 1910:
   Opinion by

Orlady, J.,

The plaintiff recovered a verdict of $360 in the court below, as damages sustained by him by reason of the alleged negligence of the defendant company, in causing injury by fire on his woodland, adjacent to the railroad tracks.

The first assignment of error standing alone is hardly a fair presentation of the instruction to the jury. The court directed the jury that before there could be a recovery, they must be satisfied by the weight of the evidence, reasonably and fairly, that the defendant permitted an accumulation of dry combustible material on its right of way, which was set on fire by the defendant’s locomotive, and that the accumulated material was the real, efficient and proximate cause of the plaintiff’s injury, which facts were to be determined by the circumstances proven to exist in the case. A number of points were submitted which were refused by the court for the reason that affirming any of them would be equivalent to giving binding instructions for the defendant, and the court being of the opinion that there was sufficient evidence to warrant a submission of the case to the jury, did so, in a fair, adequate and comprehensive charge. There is no controversy as to the amount of the verdict, and there is no direct testimony that any particular engine emitted the sparks which caused the fires, nor that any of the engines were defectively constructed, and the plaintiff’s right to recover depends entirely on the degree of proof adduced by him to directly connect the fires with the defendant’s management of its engines. On this subject the testimony of the plaintiff and his son is clear and explicit, who testify that, on each occasion, they were in close view of the premises, immediately preceding the passing of the engines, and that there was no fire within their range of vision. That within a few minutes after the passing of an engine the fire was seen in close proximity to the railroad tracks and from thence it was communicated to the plaintiff’s woodland, and caused considerable timber to be destroyed.

In each instance the fire could be traced directly to the plaintiff’s right of way, on which there was an accumulation of dry bush, leaves, logs, brush and briars, which had been allowed to accumulate after it had been mowed down by the defendant’s employees, and to remain on the premises for the two preceding months, for a width of from ten to twenty feet at different places. In this the two principal witnesses were corroborated by others who testified for the defendant. The plaintiff’s right to recover has been so recently and fully considered in Stephenson v. Railroad Co., 20 Pa. Superior Ct. 157, that a reference to it with the authorities therein analyzed, furnishes a sufficient warrant for the judge’s submission of the case to the jury. In that case, as in this one, no witness testified that the fire was caused by sparks or cinders from any designated engine, and as we said in that case, if the evidence simply gave rise to mere conjecture that such was the cause, it would not be sufficient; but it is impracticable in most cases to establish such a fact by the direct testimony of eye witnesses. The law does not absolutely require that kind of proof, nor even proof of facts, that precludes the possibility of doubt as to the fact in question. The Pennsylvania reports show that numerous recoveries have been sustained where the fact that the fire was caused by sparks and cinders emitted from the companies’ engines was based alone upon circumstantial evidence, not a bit more conclusive than that presented by the plaintiff in this case. The quantity of the accumulated brush, its condition of dryness, its proximity to the tracks, and to timber or sprout land, the condition of such land, the season of the year, the number of trains passing the place, the grade of the road, the fact that some sparks are unavoidably emitted by engines hauling heavy trains on an upgrade, the distance that such sparks may ordinarily be carried by the wind and ignite combustibles upon which they are likely to fall, these are some of the facts to be considered in determining whether in this case there was absence of care according to the circumstances, and in Elder Township School District v. Penna. R. R. Co., 26 Pa. Superior Ct. 112, we held that while the burden is on the plaintiff to prove that the fire was negligently communicated by some engine of the company, the fact may be shown by circumstantial evidence. Given the passing train, the accumulated combustible material, the fire breaking out therein within a few minutes after the train had passed, the communicating directly with the plaintiff’s building, there exists a state of facts from which the jury would be authorized to draw the inference of negligence on the part of the defendant: Badman v. Pa. R. R. Co. filed to-day.

In addition, the testimony in this case eliminates every other reasonable cause for the fires, and fires on this property happening three different times within a couple of weeks, we feel that under the authorities there was no choice for the court but to submit the question under proper instructions to the jury for their finding. In so holding we are not in conflict with American Ice Company v. Penna. R. R. Co., 224 Pa. 439, as in this case the testimony was sufficiently clear to determine with reasonable accuracy that the proximate cause of the fire was in the accumulated waste and rubbish on the defendant’s right of way, and having started in this fertile bed by the sparks from a passing engine, it extended to the plaintiff’s land, and destroyed his timber.

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


author: Morrison, J.,

text:
    Trexler v. Africa, Appellant.

      Ejectment — Evidence—Articles of agreement.

    1. Where in an action of trespass it appears that the plaintiff’s title had its inception in an article of agreement, and no question is raised as to the title of the vendors at the date of the agreement, and there is no dispute as to the execution and delivery of the agreement, such .paper is properly admitted in evidence.

      Deeds — Recitals—Parties—Partnership.
    2. In an action of trespass where a deed in the plaintiff’s line of title shows a conveyance from a man and wife to a grantee having a name,, which is in form a partnership name, a recital in a deed.from the same husband and wife to the plaintiffs to the effect that the wife was the sole and only person interested in the alleged partnership, and that she traded and did business by that name, is admissible to show that the conveyance to the supposed partnership was in fact only a conveyance to the wife. If the defendant in the ejectment is a purchaser at a treasurer’s sale he is in privity in title with the record owner and is therefore bound by the recital.
    3. In such a case another reason for admitting the deed in evidence is that^the deed to a grantee which was a mere partnership name or 'fictitious name, vested no legal title in the grantee, but it remained in the grantors, and .when they subsequently executed the deed to the plaintiffs, the latter became vested with a legal title.)

      Taxation — Tax- on lands — Statements to treasurer — Evidence—Party dead.

    4. In an action of trespass a conversation between plaintiff, the owner of the land and treasurer as to the unpaid taxes on the land, is admissible in evidence. If the plaintiff makes an honest effort to ascertain what taxes are unpaid on the land and to pay the same, mistaken statements by the treasurer cannot affect his rights in the land. In such, a case the fact that the treasurer was dead at the time of the trial will not render the plaintiff an incompetent witness.
    Argued Oct. 29, 1909.
    Appeal, No. 122, Oct. T., 1909, by defendants, from judgment of C. P. Huntingdon Co., Sept. T., 1903, No. 33, on verdict for plaintiffs in case of Jacob F. Trexler and John L. Trexler v. J. Murray Africa and John Edelblute.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Trespass to recover damages for injuries to lands. Before Woods, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiffs for $2,000. Defendants appealed.

      Errors assigned were (1-4) rulings on evidence sufficiently set forth in the opinion of the Superior Court, and (5) refusal to rule that John L. Trexler had been rendered an incompetent witness by the death of the treasurer.

      Jas. S. Woods and Thomas F. Bailey, with him J. H. Longenecker and W. H. Woods, for appellants.
    — The recital was improper as evidence: Crooks v. Bunn, 136 Pa. 368; Hamsher v. Kline, 57 Pa. 397; Milne v. Cummings, 4 Yeates, 577; Murphy v. Loyd, 3 Whart. 537; Bonaffon v. Peters, 134 Pa. 180.

      H. H. Waite, with him C. C. Brewster, for appellees.—
    The recital in the deed was sufficient to warrant the court in admitting the deed: Ayres v. McConnel, 15 Ill. 230; Devinney v. Reynolds, 1 W. & S. 328; McGrew v. Harmon, 164 Pa. 115; Hamsher v. Kline, 57 Pa. 397; Bonaffon v. Peters, 134 Pa. 180; Penrose v. Griffith, 4 Binn. 231; Garwood v. Dennis, 4 Binn. 314; James v. Letzler, 8 W. & S. 192.

      April 18, 1910:
   Opinion by

Morrison, J.,

This is the third time this case has been before us on appeal. We reversed the first judgment in Trexler, Appellant, v. Africa, 27 Pa. Superior Ct. 385, and the second one in Trexler, Appellant, v. Africa, 33 Pa. Superior Ct. 395. The appearance docket entries show that there was another trial, which did not reach us because the jury disagreed and there was, therefore, no judgment entered as a result of that trial. The present judgment is for $2.00 in an action of trespass alleged to have been committed on a tract of unseated land, and it would seem high time that this controversy should come to an end.

The first assignment of error raises a question as to the competency of an article of agreement, dated October 18, 1897, between sundry parties who then owned the locus in quo, and John L. Trexler and Jacob F. Trexler, appellees. This appearing to have been the inception of the appellee’s title, and no question being raised as to the fact that the title was, at the date of said agreement, in the grantors therein, we are of the opinion that the learned court did not err in' admitting said articles of agreement in evidence. No question was raised as to the execution and delivery of the said articles. The first assignment is not sustained.

The second assignment is not without difficulty. By Mr. Brewster, for plaintiffs: “We now offer deed from Levi L. Fritch, Jr., and Sarah S., his wife, to John L. Trexler and Jacob F. Trexler, the plaintiffs, dated September 13, 1889, and recorded on January 17, 1901, in the Recorder’s Office of Huntingdon County, in Deed Book ‘R,’ No. 4, page 188, conveying the tract of land in Walker Township, as described in the plaintiffs’ statement, inter alia, containing the following recital: feeing the same two tracts of land which Levi L. Fritch, Jr. and Sarah S. Fritch, his wife, by deeds dated the 4th day of August a. d. 1894, and recorded in the office for the recording of deeds in and for the County of Huntingdon, in Deed Book G,’ No. 4, page 184, etc., did grant and convey unto the said Sarah S. Fritch (one of the parties of the first part therein and one of the parties of the first part in these presents) under and by the name of the American Stave' & Lumber Company, as grantee, she, the said Sarah S. Fritch, being the sole and only person interested in said the American Stave & Lumber Company, trading and doing business by that name.”

By Mr. Bailey: “It is objected that it appears by the title already in evidence that Levi L. Fritch, Jr., and Sarah, his wife, parted wth the real estate described in the plaintiffs’ statement on the 4th day of August, 1894, and there is no evidence of a reconveyance to Sarah S. Fritch or Levi L. Fritch, Jr., the grantors in the deed just offered in evidence; this deed, therefore, dated the 13th of September, 1899, recorded in Deed Book 'll,’ No. 4, page 188, is objected to as immaterial and incompetent to prove title in the plaintiffs, and the recital contained in the deed just offered is not evidence to show title in Sarah S. Fritch or to show her identity with the American Stave & Lumber Company, the presumption of law being that when she conveyed this property to the American Stave & Lumber Company, she conveyed to some person other than herself,' because the law does not presume that one person conveys property to herself.”

The court below overruled the objection, admitted the evidence and sealed a bill of exceptions for defendants. Mr. Brewster, for plaintiffs, stated: “ We offer it now for the purpose of showing that Sarah S. Fritch was the only person interested in and was the American Stave & Lumber Company.” This was again objected to by Mr. Bailey on the ground that the recital was not evidence that Sarah S. Fritch was the American Stave & Lumber Company. This objection was overruled and another bill of exceptions sealed for defendants. Counsel for the plaintiffs argue earnestly that the recital in the deed was prima facie evidence that the conveyance to the American Stave & Lumber Company was only a conveyance to Sarah S. Fritch and therefore that the subsequent conveyance by Levi L. Fritch, Jr., and said Sarah, his wife, vested a good title in the plaintiffs.

In support of this position counsel cite 13 Cyc. 611, id. 621, id. 613; Ayres v. McConnel, 15 Ill. 230, and Devinney v. Reynolds, 1 W. & S. 328, “That the recital in a treasurer’s deed for unseated land, that a bond was given for the surplus purchase money, is prima facie evidence of the fact, and sufficient for the purpose, unless rebutted by other testimony.” Counsel also say: “The general rule is that a recital of a fact in a deed is evidence against the grantor, and all persons claiming by title derived from him subsequently, but is not evidence against one, who claims by title derived from a grantor prior to the deed which contains the recital.” Citing Penrose v. Griffith, 4 Binn. 231, and other authorities. “A recital, in the deed in the line of title under which both parties claim in an ejectment, that the grantor in the deed was seized of the title, is sufficient to warrant a finding that title was out of the commonwealth:” McGrew v. Harmon, 164 Pa. 115; also citing Hamsher v. Kline, 57 Pa. 397.

The learned counsel contend earnestly that the defendants have no standing to raise this question because they do not claim to hold a title under the American Stave & Lumber Company, nor do they show, nor does it appear, that any other person claims title or right of possession under that company. But the rule of law in ejectment, and by analogy in trespass on unseated lands, is that the plaintiff must show title in order to vest in him such legal possession as will entitle him to recover in trespass as to land which is not in his actual possession. Therefore, if said conveyance to the American Stave & Lumber Company establishes a legal title to the locus in quo, outstanding, and not vested in the plaintiffs, we are not convinced that they could recover in trespass resting upon said recital in the Fritch deed, alone, unless the defendants can be said to be privies to the title under which the plaintiffs claim. But is a purchaser at treasurer’s sale a privy in title as to the person in whom the paper title appears to be vested? In Strayer v. Johnson, 110 Pa. 21, Mr. Justice Sterrett, 'in delivering the opinion of the Supreme Court, said: “A purchaser at sheriff’s sale, for example, is in privity to the defendant’s title; and, for like reason, we have no doubt a purchaser at treasurer’s sale is in privity to the title, if any, that is divested by the sale and passes to him.”

In McGrew v. Harmon, 164 Pa. 115, which was tried by the late Judge Noyes of the Warren and Forrest county district, we note the following, by Judge Noyes: “In Strayer v. Johnson, 110 Pa. 21, it is suggested that a purchaser at tax sale is to be treated as in privity with the title divested by that sale, which may be so or not.” Judge Noyes was affirmed in his judgment in that case, but the Supreme Court did not comment upon the question of privity in title.

The treasurer’s sale under which the defendants claim was made on June 13, 1898, and of course it did not become absolute for two years from that date. Now the deed containing the recital was executed and delivered on September 13, 1899, and, therefore, if a purchaser at treasurer’s sale is in privity to the title, if any, that is divested by the sale and passes to him, we do not see how these defendants can escape the effect of said recital.

But there is another ground upon which the second assignment of error can be disposed of adversely to the appellants. In 30 Cyc. 431, it is said: “A deed to a partnership in its firm name is not void, for while a partnership, as such, cannot be the grantee at law in a deed, or hold real estate because it is not a person either in fact or in law, and while, therefore, a conveyance of real estate to a partnership in its firm name fails to carry the legal title to the land, such a conveyance does vest an equitable estate in the firm. Where the firm style contains the surnames of all the partners, a conveyance to the partnership in such style is generally held to pass the legal title to the individuals for the firm. If, however, the firm style contains the surnames of one, or more, but not of all the partners, it has been held that a conveyance to the partnership in such style vests the legal title in the partner or partners, whose names appear, but in trust for the firm; and such named partners can convey a valid title to the property.” See also Burns v. McCabes, 72 Pa. 309.

It does not appear in the record that the American Stave & Lumber Company was a corporation. It must, therefore, have been a partnership name or a fictitious name, and under the above quoted authority, the conveyance by Fritch and wife by the deed of August 4, 1894, to the American Stave & Lumber Company did not vest the legal title to the land therein described in that company, because it had no such legal existence as would entitle it to be a grantee in a deed of real estate. This left the legal title still in Fritch and wife, and their subsequent deed of September 13, 1899, to the plaintiffs, vested the legal title in the latter and, therefore, they could maintain the present action in trespass against the defendants who were wrongdoers: Enterprise Transit Co. v. Hazelwood Oil Co., 20 Pa. Superior Ct. 127; Wilkinson v. Connell, 158 Pa. 126. We need not discuss the question whether the deed to the American Stave & Lumber Company vested an equitable title in that company, because there is no one in possession of the locus in quo claiming under such title, and it is not the rule of law that an equitable title authorizes the holder of it to go into possession of land without additional authority to take possession. The second assignment of error is overruled.

We see no merit in the third assignment. When the defendants went to the treasurer’s office to inquire about the taxes on L. L. Fritch, otherwise the William Smith tract, and the taxes on the John Patton tract, they were strangers to the title to these tracts of land, and what they said to the treasurer and what he said to them in answer to their questions as to whether the taxes had been paid on said lands, was wholly immaterial, irrelevant and incompetent as to any issue raised in the present case. When John L. Trexler asked the treasurer for the unpaid taxes on the lands in question, he was one of the owners of said lands and what the treasurer said to him was competent evidence and it could not be contradicted in the manner proposed in the third assignment. We see no merit in the fourth assignment. The complaint is that the court erred in the answer to defendant’s first point. We think the answer is substantially correct, and in view of the very explicit and careful instruction given by the court on that question, in the general charge, we cannot see how the language used in the answer to thje point could have misled the jury. The court in the general charge said: “This however makes no difference if you believe that John L. Trexler on that date asked the treasurer for the amount of taxes .on both tracts in order to pay them; it was the treasurer’s duty to inform him of the correct amount due when he asked for it, and if the treasurer made a mistake and only gave him the amount due on one tract, and you believe John L. Trexler was honestly endeavoring to pay on both, then it was a mistake on the part of the' treasurer and the treasurer’s sale would be void.” Again the court said: “The only question after all, gentlemen of the jury, for you to consider is, Did John L. Trexler make an honest effort to pay these taxes? If you believe his testimony that he did, your verdict should be for the plaintiffs; if you do not believe his testimony, your verdict should be for the defendants. If you find'for the plaintiffs, allow them the amount you believe they are entitled to under the evidence. If you find for the defendants, you verdict should be simply, We find for the defendants.”

There is no merit in the fifth assignment of error. The fact that the treasurer is dead did not render John L. Trexler an incompetent witness as to what occurred between himself and the deceased treasurer when Trexler was endeavoring to pay the taxes on the lands in question. The fifth assignment is not sustained.

When this case was here before we said all that we deemed necessary as to the law governing the questions that have not been discussed in this opinion: Trexler v. Africa, 27 Pa. Superior Ct. 385; Trexler v. Africa, 33 Pa. Superior Ct. 395.

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


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    Commonwealth v. Gaines.

      Grand jury — Actions of grand jury — Testimony of witnesses.

    1. A member of a grand jury cannot be questioned as to what the jury did, or what opinions its members expressed, but he may be questioned as to what a witness had testified to before the jury. A question should not be propounded to a grand juryman which would permit him to testify as to such matters as he has no right to disclose.

      Criminal law — Practice, Q. S. — Indictment—Attorney.
    2. Where the name of a witness is indorsed on an indictment the presumption of law is that the name was properly placed upon the indictment by the district attorney, and it is immaterial whether he placed the name there by the direction of the grand jury, or not.
    3. Where a grand jury ignores an indictment and places the costs on a witness whose name was indorsed on the indictment, and who appeared before them, although another person was named as the prosecutor, the action of the court in refusing to set aside the finding of the grand jury as to costs will not be reversed by the appellate court in the absence of a manifest abuse of discretion.
    4. In such a case where the court refuses to set aside the finding of the grand jury as to costs, and sentences the witness to pay the costs, but no exception is taken to the sentence, and no error assigned as to its legality, the appellate court cannot consider the action of the lower court in refusing to set aside the finding of the grand jury, inasmuch as such action does not legally injure the defendant. It is only by the sentence he is injured, if at all.
    Argued Nov. 15, 1909.
    Appeal, No. 118, Oct. T., 1909, by Thompson Hudson, from order of Q. S. Chester Co., Jan. T., 1909, No. Ill, refusing to set aside finding of grand jury as to costs in case of Commonwealth v. Frank Gaines and Harvey Bond.
    Before Rice, P. J., Henderson, Morrison, Orlad y, Head, Beaver and Porter, JJ.
    Affirmed.
    Hearing on objections to the payment of costs imposed by a grand jury.
    At the hearing when Joshua Hibberd, foreman of the grand jury, was on the stand he was asked this question:

      “Q. When Mr. Paxson testified that one of the inducing facts for the action of the grand jury was the disgust-”
    Mr. Gawthrop: I object to that question. There is no such testimony in the case. Exception. [1]
    “Q. Was the previous record or action of Squire Thompson Hudson discussed before the grand jury?”
    Mr. Gawthrop: We object to that.
    Judge Hemphill: We will not go into what occurred before the members of the grand jury.
    Mr. Pennypacker: “Q. Was the previous record or actions of Squire Hudson discussed before the grand jury?”
    Mr. Gawthrop: We object to that. Exception. [2]
    “Q. Were there any statements made by the members of the grand jury of facts and circumstances other than those that occurred in the case before you?”
    Mr. Gawthrop: That is objected to. Exception. [3]
    Objection sustained.
    “Q. The district attorney has already testified that he it was who wrote the name of Thompson Hudson upon the back of that indictment. Was that writing so made by the district attorney .at the direction of the grand jury?”
    Mr. MacElree: I object to that. Exception. [4]
    Mr. Pennypacker: I offer in evidence the communication of Frank S. Paxson to the “Daily Local News,” printed in their issue of February 16, 1909, and identified by Mr. Paxson.
    The communication of Frank S. Paxson, secretary of the grand jury, printed in the “ Daily Local News ” issued on February 16, 1909, which was excluded by the court, is as follows:
    “ ‘ Coatesville, Feb. 16, 1909.
    “‘Editor News:
    “‘In last week’s issue of The Oxford Press, the following false and undignified criticism of the recent Grand Jury appeared:
    “ ‘The Grand Jury in their eagerness to punish Squire Thompson Hudson of Hopewell, for pestering them with so many trivial cases, put the costs on him in an ignored case. They could not impose the costs on him as a magistrate, so they attempted to mulct him as a prosecuting witness. But when the Court came to look into the case, it was discovered -that the Squire was not the prosecuting witness at all, and he of course escaped from paying the costs. It now looks as if one of the Grand Jurors in his eagerness to punish the Squire, signed his name to one of the complaints. The Squire was very angry when he found that an attempt had been made to trick him into paying the costs and he threatens to bring suit, it is said, to punish the alleged joker. The Squire did not have the costs to pay after all, and the joke is on the other fellow. Those who know the Squire remarked at the time that they did not believe he would allow himself to be caught by any such trick, and they guessed right.’
    “The above criticism was from the West Chester Correspondent of The Press, and I trust, Mr. Editor, you will find room in the columns of your paper for the following:
    “The Grand Jury in placing the costs in one case on Thompson Hudson, who happens to be a Justice of the Peace in the lower end of the County, and also was a witness before that body, in the case in question, did so believe and indeed they were instructed they had a right to do so by an officer of the Court. No doubt this Grand Jury was, and I learn many others before them have been, disgusted with some of the cases sent up to them from the Justice in question, placed the costs on him, thinking it would act as a deterrent in the future. They were not, as the correspondent says, eager to punish him. However, to be brief, the article is excepted to in general and particularly that portion of it that says: ‘It now looks as if one of the Grand Jurors in his eagerness to punish the ’Squire signed his name to one of the complaints.’ Now it seems to me this is an unwarranted assumption upon the part of the correspondent, and reflects very seriously upon the members as individuals as well as a body, as he fails to state who that one member was.
    “As a member of the recent Grand Jury, and secretary of that body, I am in a position to emphatically deny the statement that Hudson, or any other person’s name was attached to any bill of indictment by any member of the Grand Jury. All names were on the bills when handed to us by the District Attorney. If Mr. Hudson, the West Chester correspondent of The Press, has or thinks he has evidence of any member of the Grand Jury tampering in any way or placing any names on bills of indictment it is that person’s duty as a good citizen to name the offender and produce any evidence of his guilt he may possess.
    “The insinuation in the Press article is slanderous on each member of the recent Grand Jury and to some it seems almost criminal to have such a false statement sent broadcast over the county. I am making this statement, Mr. Editor, without having seen the other -members of the Grand Jury, believing they will substantiate it and uphold my action in thus answering the West Chester correspondent of The Oxford Press.
    “Yours respectfully,
    “Frank S. Paxson,
    “Secretary of the late Grand Jury.”
    Judge Hemphill: That is the expression of an individual that happened to be on the grand jury. The grand jury speaks through its foreman as a body, and not as an individual.
    Mr. Pennypacker: In that communication he says: “No doubt this Grand Jury was, and I learn, many others before them have been, disgusted with some of the cases sent up to them from the Justice in question.”
    Judge Hemphill: What bearing has that?
    Mr. Pennypacker: Only to show the feeling of the grand jury towards Thompson Hudson.
    Mr. Gawthrop: We object to that. It is a newspaper report and we do not know that it is accurate. Exception.

      Errors assigned were (1-5) rulings on evidence; (6) in refusing to set aside findings of grand jury as to costs.

      Charles H. Pennypacker, for appellant.
    — The action of the grand jury, confirmed by the court below, was such an abuse of discretion that this court should review and correct: Guffy v. Com., 2 Grant, 66; Com. v. Madden, 11 Pa. C. C. Rep. 459.
    The members of a grand jury can testify as to the circumstances and the evidence which brought about their findings: Com. v. Green, 126 Pa. 531; Com. v. McComb, 157 Pa. 611.

      Robert S. Gawthrop, district attorney, with him Harris L. Sproat, assistant district attorney, for appellee.
    — A grand juror may not testify how he or any member of the jury voted, nor what opinion any of them expressed in relation thereto nor to the act of either which might invalidate the finding of the jury: Gordon v. Com., 92 Pa. 216; Com. v. Green, 126 Pa. 531.
    The argument of the appellant does not contend that the sentence was defective, but that the lower court was guilty of an abuse of discretion in sustaining the grand jury. This in itself is sufficient reason for disregarding the sixth assignment: Com. v. Beale, 19 Pa. Superior Ct. 434.
    By the Act of March 31, 1860, P. L. 427, the grand or petit jury has the right to designate the actual prosecutor and place the costs on him. The cases in which such action has been set aside are those in which the person on whom the costs were imposed had not been called or had not been heard: Com. v. Anderson, 17 Pa. C. C. Rep. 89; Com. v. Ream, 1 Pa. C. C. Rep. 33; Com. v. Jackson, 1 Pa. C. C. Rep. 38; Guffy v. Com., 2 Grant, 66; Com. v. Madden, 11 Pa. C. C. Rep. 459.

      April 18, 1910:
   Opinion by

Morrison, J.,

At the January Sessions, 1909, in Chester county, an indictment went before the grand jury in the above-entitled case and the record proper shows that Nora Williams’ name was indorsed on the indictment as prosecutrix and that the name of Thompson Hudson was upon the indictment as a witness. The presumption of law is that his name was properly placed upon the indictment by the district attorney and’ that the grand jury would discharge its duty and call him and hear his testimony before ignoring the bill. Moreover, it is a conceded fact that he went before the grand jury and testified. The record proper shows that on January 27, 1909, the bill was ignored and the costs placed on the prosecutor, Thompson Hudson. On the next day a rule was granted to show cause why the findings of the grand jury as to costs should not be vacated and set aside. After argument, the court, on April 12, 1909, discharged the rule and sealed a bill for Thompson Hudson. On May 10,1909, the docket entries show that Hudson appeared before the court and was sentenced to pay the costs of prosecution, and he thereupon took this appeal. We are not furnished with a copy of the sentence and so far as we can discover from the record it was not excepted to.

It is now familiar and well-settled law that grand jurors may be called to prove some things that may have taken place during their investigations, but as to other matters occurring before that body, it is not competent to interrogate a grand juror.

In Gordon v. Com., 92 Pa. 216, Mr. Justice Mercur, speaking for the Supreme Court, said: “It must be conceded that the rule shall not be carried so far as to conflict with the juror’s oath. He shall not testify how he or any member of the jury voted, nor what opinion any of them expressed in relation thereto, nor to the act of either which might invalidate the finding of the jury. His action, and the action of his fellow jurors, must be shown only by the returns which they make to the court. "What a witness has testified to before them is quite another matter.” The same principle is recognized in Com. v. Green, 126 Pa. 531. In view of the above rule we think it was incumbent on the counsel for appellant to put upon the record, in plain terms, just what he proposed or expected to prove by the foreman of the grand jury, so the court could limit the testimony to such matters as a grand juror has a right to disclose. Tested by this rule the first three assignments of error are bad. In our opinion, each and all of the questions embraced in said three assignments might have called out improper testimony. Therefore, the court was warranted in excluding the evidence and thus avoiding invalidating the finding of the jury by incompetent, evidence. The first three assignments are not sustained.

The fourth assignment is in substance that the court erred in not permitting the foreman of the grand jury to testify whether or not the writing of the name of Thompson Hudson upon the back of the indictment was so made by the district attorney at the direction of the grand jury. This was wholly immaterial. It is to be presumed that the district attorney placed the name upon the indictment, and in addition to that it is conceded that he wrote the name of Thompson Hudson on the indictment. Suppose some of the grand jurors did request the district attorney to place the name of Thompson Hudson upon the back of the indictment; that officer would have the right to comply with the request if his judgment approved of it. The fourth assignment is not sustained.

The indictment was ignored and the costs placed upon Thompson Hudson on January 27, 1909, and on February 16, 1909, Frank S. Paxon, signing himself as secretary of the late grand jury, wrote a long communication, relative to the costs on said indictment, to a newspaper, and it was published. This was long after the grand jury had transacted its business and adjourned.

The fifth assignment complains of the court for not admitting in evidence said communication. We can conceive of no theory upon which it is competent evidence bearing on the subject being investigated by the court, and the learned counsel for the appellant has not suggested any convincing reason in support of this assignment nor has he cited any authority sustaining his proposition that said communication was evidence. The fifth assignment is not sustained.

The sixth assignment is that the court below erred in refusing to set aside the finding of the grand jury as to costs. This order of the court was made on April 12, 1909, and a bill of exceptions was sealed for the appellant. But in our opinion, on what is now before us, it was purely discretionary with the court as to whether or not it would set aside said finding of the grand jury. Where a matter rests in the sound discretion of the court below the appellate court will only reverse for a clear abuse of that discretion: Com. v. Edmiston, 30 Pa. Superior Ct. 54. In that case we said: “WTiere the motion to quash was based on an allegation of facts outside of the record proper, our revisory jurisdiction must necessarily be confined to a determination of the question arising upon the latter, taken in connection with the facts or the evidence duly brought upon the record by a bill of exceptions.” In the present case there is nothing appearing in the record proper to convict the court of an abuse of discretion, nor is there any evidence duly brought upon the record by a bill of exceptions which establishes such abuse of discretion. Moreover, refusing to set aside the finding of the grand jury as to costs, without more, does not legally injure the defendant. It is the sentence which works such injury' and which gives him the right to appeal. But there is no assignment of error as to the legality of the sentence, nor does it appear that any exception was asked for as to the sentence. Indeed, the sentence is not furnished to us.

In Com. v. Beale, 19 Pa. Superior Ct. 434, we held as stated in the syllabus: “On appeal, objection cannot be taken to the legality of the sentence in a criminal case where there is nothing on the record to show what exception had been taken to the sentence and the assignment of error does not set forth the sentence itself.”

In Guffy v. Com., 2 Grant, 66, cited by appellant’s counsel, the disposition of the costs was by the trial jury, hence' the question came before the court directly and it was not an attempt to prove by a grand juror grounds on which to impeach the return of the grand jury. The sixth assignment is not sustained.

The order of the court is affirmed and the appeal dismissed at the costs of the appellant.


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    Speakman v. Philadelphia & West Chester Traction Company, Appellant.

      Automobiles — Street railways — Bear end collision.

    If a person drives an automobile with rear and side curtains down, at a speed of ten or fifteen miles an hour, in the daytime, and too close to a trolley track for a car to clear the machine, and the machine is struck from behind by a car which the driver of the machine could have avoided if he had looked back, the driver is guilty of contributory negligence as a matter of law, and there is no case for a jury.
    Argued Nov. 16, 1909.
    Appeal, No. 73, Oct. T., 1909, by defendant, from judgment of C. P. Chester Co., Jan. T., 1909, No. 78, on verdict for plaintiff in case of Frank L. Speakman v. Philadelphia & West Chester Traction Company.
    Before Rice, P. J., Henderson, Morrison, Head, Beaver and Porter, JJ.
    Reversed.
    Trespass to recover damages for personal, injuries. Before Hemphill, P. J.
    The facts appear by the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $1,455. Defendant appealed.

      Error assigned among others was (2) in refusing binding instructions for defendant.

      Alfred P. Reid and William I. Schaffer, for appellant.—
    The appellee did not look and listen for an approaching car, as required by law: Carson v. Federal Street, etc., Railway Co., 147 Pa. 219; Ehrisman v. E. Harrisburg City Pass. Ry. Co., 150 Pa. 180; Wheelahan v. Phila. Traction Co., 150 Pa. 187; Callahan v. Traction Co., 184 Pa. 425; Pieper v. Union Traction Co., 202 Pa. 100; Warner v. People’s St. Ry. Co., 141 Pa. 615; Trout v. Electric Railway Co., 13 Pa. Superior Ct. 17; Potter v. Railway Co., 19 Pa. Superior Ct. 444.
    If the roadway at the side of the track, is wide enough to allow the safe passage of a vehicle, one who drives so close to the track as to be struck by an approaching car, or who stops his vehicle so close to the track as to be struck by a car which he has just turned from the track to avoid, is guilty of contributory negligence: Morrow v. Del. County & Phila. Elec. Ry. Co., 199 Pa. 156; Mc-Cracken v. Traction Co., 201 Pa. 378; Keenan v. Traction Co., 202 Pa. 107; Kane v. Ry. Co., 181 Pa. 53; Warner v. Ry. Co., 141 Pa. 615; McClelland v. Rys. Co., 216 Pa. 593.
    The person who puts himself within the danger limits of an approaching car is negligent: Warner v. People’s St. Ry. Co., 141 Pa. 615.
    It is the duty of a person traveling on a highway to keep a safe distance from the tracks of a street railway, failing which he is negligent: McClelland v. Pittsburg Rys. Co., 216 Pa. 593.

      Walter S. Talbot, with him Joseph H. Baldwin, for appellee.
    — In the matters where contributory negligence is involved the measure of duty is ordinary and reasonable care, and where the degree of care varies according to the circumstances, the question of negligence is always for the jury: Davidson v. Schuylkill Traction Company, 4 Pa. Superior Ct. 86; Gates v. Penna. R. R. Co., 154 Pa. 566; Callahan v. Traction Co., 184 Pa. 425; Barto v. Traction Co., 216 Pa. 328; Jones v. Street Ry. Co., 9 Pa. Superior Ct. 65; Mortimer v. Traction Co., 216 Pa. 326; Iseminger v. York Haven Water & Power Co., 206 Pa. 591; McCracken v. Traction Co., 201 Pa. 378.
    April 18, 1910:
   Opinion by

Morrison, J.,

An examination of the evidence convinces us that the appellant’s history of the case is substantially fair and correct, and from it we gather the following facts: A public road runs from the fair grounds westwardly to West Chester — a distance of about a mile. The track of defendant is located on the south side of said road all of said distance. Bolmar street crosses the road and the railway tracks at right angles, and is the eastern boundary of the borough of West Chester. From a point about 800 feet east of Bolmar street, at Cottage Hill, there is a descending grade westward, coming to a level a short distance east of Bolmar street. From Bolmar street westward there is a brick pavement between the railway tracks and for about twenty inches on either side. The distance from the fair grounds to Bolmar street is about 5,000 feet and the running time of the cars between these points is four minutes. ’

On September 11, 1908, there was an agricultural fair in progress at the fair grounds, and the railway cars were running to and from West Chester every fifteen minutes, and they were very much crowded. On that day the plaintiff- was attending the fair and was returning therefrom to West Chester in an automobile. The back curtains and the two rear side curtains (about eighteen to twenty inches in width), were down. The plaintiff was driving the machine himself and occupied the front seat on the right-hand side of the machine with Mr. Satterthwaite on the left side of the same seat. The automobile was running at about ten to fifteen miles per hour.' When the plaintiff approached Bolmar street he turned his machine to the left — a distance of five or six feet — and ran the left wheels thereof upon the brick pavement on the north side of the north rail of the street railway track. His testimony shows that he was aware that he was too close to the trolley track for a car to clear Ms machine if one should come from the rear traveling faster than the automobile was going. After going about 150 feet on this pavement, plaintiff’s machine was struck by a street car and badly damaged. For a considerable distance in the rear- of the plaintiff’s automobile at the time of the accident, the street is almost a straight line and a car upon the track can be seen for a long distance. When the plaintiff turned his automobile toward the, trolley tracks, the car that ran him down was about 300 feet from Bolmar street (according to the testimony of plaintiff's wit nesses). The plaintiff did not stop his automobile. He did not look back. He looked to the side and ahead. He said he did not look back because it was not safe — that the driver of an automobile should look ahead. He said it did not occur to him that there were any cars going to run fast enough to hit him.

We also have the testimony of Reuben Satterthwaite. He said when they came to the brick pavement, they pulled over to the left and he did not do anything except look out of the left side of the machine. They did not stop. He said he looked back a considerable, distance but that he only looked out at the side of the car. He did not look out of the back of the machine, but claimed that by looking out of the side he could see back of the machine. But this testimony is of little consequence because other witnesses of the plaintiff showed that the trolley car was about 300 feet from Bolmar street when the plaintiff ran his car onto the brick pavement.

We consider the evidence sufficient to warrant the jury in finding that the car that struck the plaintiff's automobiíé was being operated negligently. However, it is very probable that the motorman was deceived by the fact that the automobile was not on the track and he may have thought there was room enough for his car to clear the automobile. This theory would make the case similar to Hause v. Lehigh Valley Transit Co., 38 Pa. Superior Ct. 614. But in that case we held that there was sufficient evidence from which the jury could find that the defendant was guilty of negligence.

Now, as to the contributory negligence of plaintiff, the inference is irresistible that if plaintiff's companion had looked back of the car along the track he must have seen a car approaching at a speed that would indicate danger to the automobile. It ha,s many times been decided that it is idle for a witness to testify that he looked when it is'clear that if he had looked, he would have seen the danger. If plaintiff's companion had looked back along the track, how easy it would have been for the plaintiff, on notice that a car was approaching, to have turned out a little and let the car pass.

In McCracken v. Traction Co., 201 Pa. 378, it was decided as indicated in the syllabus: “If he looked he saw that it was approaching at a high rate of speed and could not rely upon the presumption that its speed was lawful and take the chances of crossing ahead of it. If he looked he was guilty of contributory negligence and if he did not look he was likewise guilty.”

In the present case, the plaintiff does not pretend that he looked back or that he took any precaution to prevent such an accident as the one that occurred except to run his automobile at a speed of ten or fifteen miles an hour too close to the trolley track for a car to clear his machine. If he was relying on his companion to look back and warn him of an approaching car, it is absolutely certain that the latter did not discharge his duty because he neither saw nor heard the car until it struck the automobile. From this state of facts we are unable to reach a conclusion that the plaintiff was not guilty of contributory negligence. If it was not careless for him to drive his automobile in the manner above indicated, without looking back along the track, or having his companion do so, then we are at a loss to understand what carelessness means. And if he was careless in the circumstances which are not in dispute, such carelessness, amounted to contributory negligence.

The learned counsel for appellee cites a number of cases, among them our own case of Davidson v. Traction Co., 4 Pa. Superior Ct. 86, but that case holds that “negligence is always a question for the jury whenever there is a conflict of testimony, or from any cause there is a reasonable doubt as to the facts, or the inferences to be drawn from them.” But in the present case there is no conflict of testimony, nor do we think there is any doubt as to the inferences to be drawn on the question of contributory negligence, from the. plaintiff’s own showing.

The same counsel cite Gates v. Penna. R. R., 154 Pa. 567, but that case holds as indicated in the syllabus: “But where facts constituting negligence are either admitted or conclusively established by undisputed evidence it is the duty of the court to declare the law applicable thereto.”

In Callahan v. Traction Co., 184 Pa. 425, also cited by appellee’s counsel, it was said: “There is always a duty to look for an approaching car, and, if the street is obstructed to listen and in some situations to stop.” This was said in regard to a traction accident, but the case is not in point under the facts in the present case.

Barto v. Beaver Valley Traction Co., 216 Pa. 328, is also cited, but in that case the plaintiffs at night were riding in a buggy on a slow trot on the track. The top of the buggy was down and they had looked back several times to see whether a car was coming. They first observed the car when it was a rod from them and the buggy was struck before they succeeded in getting clear of the track. The car was running fifteen miles an hour without a headlight, and no signal of its approach was given. Held, that the case was for the jury. But in that case the plaintiffs had a right to drive upon the track and they had the top of the buggy down and they had looked back several times and the car came upon them in the nighttime without a headlight. Now mark the difference between that case and the present one. Here the back of the automobile was closed and the two rear side curtains were down, and it is perfectly clear that the plaintiff and his companion did not look back along the track because it was broad daylight and if they had looked, the car was in plain sight.

Mortimer v. Beaver Valley Traction Co., 216 Pa. 326, is also cited, but it is much like Barto v. the same company. In it, the car was running at the rate of twenty-five or thirty miles an hour and the plaintiff was trying to get off the track, but he was run down and the motorman made no attempt to slacken his speed. But that case holds that “A court is warranted in saying there was contributory negligence only in clear cases where the facts and inferences to be drawn from them are free from doubt: Iseminger v. York Haven Water and Power Co., 206 Pa. 590.”

We think the plaintiff was guilty of contributory negligence under his own showing and that he was precluded from going to the jury with his case. It seems to us that no jury was needed to pass upon the undisputed evidence and the clear inferences to be drawn from it, but that the court ought to have instructed the jury that the plaintiff was guilty of contributory negligence as a matter of law and that he could not recover. Beáring still further on the question of the duty of the plaintiff and his contributory negligence we might cite a long list of cases establishing the rule that so much of the stop, look and listen rule is applicable to a street railway as requires a traveler to look and listen and in some cases he should also stop: Omslaer v. Traction Co., 168 Pa. 519; Carson v. Federal St., etc., Ry. Co., 147 Pa. 219; Wheelahan v. Phila. Trac. Co., 150 Pa. 187; Callahan v. Trac. Co., 184 Pa. 425; Trout v. Elec. Ry. Co., 13 Pa. Superior Ct. 17; Potter v. Ry. Co., 19 Pa. Superior Ct. 444.

In Morrow v. Ry. Co., 199 Pa. 156, the Supreme Court held as stated in the syllabus: “The duty of a person driving along a highway in a cart loaded with lumber placed crosswise on it, and projecting in front of it up to the head of the horse, and with a trolley track on the side of the road over which a car may come at any moment, is to look forward and not backward and to keep in the road, wide enough to do so, at a safe distance from the track.”

In the present case the plaintiff’s own testimony shows that there was a roadbed twenty-five feet wide which he might have kept his automobile on at a safe distance from the track. In McCracken v. Traction Co., 201 Pa. 378, it is held as stated in the syllabus: “A person who is struck by a car of a street railway company in crossing its tracks cannot relieve himself of the charge of contributory negligence by proving the unlawful speed of the car, where the car was within his view just before he reached the track if he looked.” We might cite many other cases which seem to us to convict the plaintiff of contributory negligence, but it is unnecessary to prolong this opinion.

The second assignment of error is sustained and the judgment is reversed.

Rice, P. J., and Head, J., dissent.


author: Per Curiam,

text:
    Henry v. Lilley, Appellant.

      Res adjudícala, — Record—Cause of action — Case for jury — Pleading— Trial on merits.

    1. An action to recover damages for bodily injuries inflicted upon the plaintiff by the defendant’s employees in ejecting her from and tearing down a house she occupied as the defendant’s tenant, is not res adjudicata as a matter of law by reason of a prior, action by the plaintiff against the defendant to recover damages for injuries to furniture and effects caused by the tearing down of a house, where the record of the prior action shows a settlement and discontinuance, and the plaintiff denies the authority of her attorney to make such a settlement; such a case is for the jury.
    2. After a defendant has pleaded the general issue and gone to trial on the merits, it is too late for him to set up for the first time the pend-ency of a prior action to defeat the action on trial.
    Argued Nov. 17, 1909.
    Appeal, No. 154, Oct. T., 1909, by defendant, from judgment of C. P. Chester Co., Oct. T., 1908, No. 37, on verdict for plaintiff in case of Sarah Henry v. John R. Lilley.
    Before Rice, P. J., Henderson, Morrison, Head, Beaver and Porter, JJ.
    Affirmed.
    Trespass to recover daüiages for personal injuries. Before Hemphill, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $100. Defendant appealed.

      Error assigned was refusal of binding instructions for defendant.

      Walter E. Greenwood, with him Robert S. Gawthrop, for appellant.

      J. Frank E. Hause, for appellee,

      December 13, 1909:
   Per Curiam,

This was an action of trespass in which the plaintiff claimed both compensatory and punitive damages for bodily injuries inflicted on her by persons employed by the defendant to eject her from and tear down a house she occupied as the defendant’s tenant. The defendant pleaded not guilty, and on the trial of the case offered in evidence the record of a prior action brought by her against him. He has not set forth in his paper-book a copy of the statement filed in that case, but we gather from the cross-examinaticn of his witness, the attorney who drew the statement, that the gravamen of the action was that with force and arms the defendant broke through the roof of the house in which the plaintiff lived, thereby causing large holes to be made in the roof, through which the rain leaked and spoiled the household furniture, beds, bedding and carpets of the plaintiff, also broke a large number of windows in the house and damaged the porch. The record of the disposition of that suit is as follows: “January 28, 1908, this case discontinued and settled. Harris, plaintiff’s attorney.” This entry was made several months before the present action was brought. The question upon which this appeal turns is whether the court erred in refusing the defendant’s point, which was as follows: “The prior suit and the settlement by her attorney of record is a bar to recovery in this case.”

The oral evidence introduced by the defendant to show the authority of the attorney to settle the plaintiff’s claim was controverted by the plaintiff in her testimony; therefore, the court could not have taken that question from the jury and charged that the alleged settlement was a bar, even though it be assumed that it was intended by the attorney and the defendant to cover damages for the bodily injuries inflicted upon the plaintiff as well as damages for the injury to her household goods.

Nor could the court have declared from an inspection of the record and pleadings in the prior action that the present action was barred, even though the discontinuance be disregarded: First, because the record does not show that it was for the same injury, or for an injury caused by the identical act, complained of in the present action; secondly, because, having pleaded the general issue and gone to trial on the merits, it was too late for the defendant to set up for the first time the pendency of a prior action to defeat the action on trial. For a full discussion of the question as to the time and mode of pleading the pendency of a prior suit for the same cause of action, we refer to Becker v. Lebanon & Myerstown Street Railway Co., 25 Pa. Superior Ct. 367, and the cases there cited.

What would have been the effect of a judgment in the prior action, supplemented by proof that the injury to property there complained of and the injuries to the person complained of in the present action resulted from the same wrongful act, is a question which has been the subject of conflicting decisions' in different jurisdictions. But as it does not arise from this record, we are not called upon to discuss it.

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


author: Henderson, J.,

text:
    Vuille v. Pennsylvania Railroad Company, Appellant.

      Carriers — Common carriers — Negligence—Presumption—Condition of goods — Evidence.
    1. A presumption of negligence arises which is sufficient to justify a recovery in cases where there is no other proof than of the delivery of the goods to the carrier in good condition and their arrival at the point of destination in a damaged condition.
    2. When goods are delivered to the first carrier in good order and are afterwards injured, the presumption in the absence of anything te the contrary is that they were injured by the last carrier.

      3. Where a terminal carrier is sued for damages to an automobile, and the evidence shows serious structural injuries to the machine, and the defendant offers evidence that when it received the machine it was covered with dust and had its rear lamp broken, but offers no evidence of the pecuniary amount of such damages, the defendant cannot complain that the court permitted the jury to consider the damaged condition of the machine when it came into defendant’s ■hands in fixing the amount of damages which the plaintiff was entitled to recover.
    Argued Oct. 29, 1909.
    Appeal, No. 169, Oct. T., 1909, by defendant, from judgment of C. P. Huntingdon Co., Sept. T., 1907, No. 17, on verdict for plaintiff in case of Charles A. Yuille v. Pennsylvania Railroad Company.
    Before Rice, P. J., Henderson, Morrison, Orlad y, Head, Beaver.and Porter, JJ.
    Affirmed.
    Assumpsit to recover damages for injuries to an automobile. Before Woods, P. J.
    At the trial the court charged as follows:
    This is an action of assumpsit brought by Chas. A. Vuille against the Pennsylvania Railroad Company to recover for damages which he alleges he sustained by reason of the defendant company injuring or damaging a certain automobile that was in their charge at a certain time, shipped for delivery to Huntingdon, Pa., over their road. He testifies to you that he shipped or had shipped an automobile from a place in Florida over the Florida East Coast Railroad, to be delivered by them to their connecting line and finally delivered to him at the station at Huntingdon, Pa. [The evidence shows that it was in good repair when it was put in the car in Florida. Then the evidence shows that when it reached Baltimore, in-charge of the Northern Central Railroad Company, it was without any card showing where it was to go or to whom it was'Consigned or directed, and that when it came to the station in Baltimore that it was damaged; the railroad employees testify to you that one of the lamps was off and on the floor and that the machine was all covered with dust and that other parts of the automobile were injured. You will determine from the evidence what the injury was and what the value of the automobile was at that time.] [3] Then the evidence shows that when it was received here in this town it was in a very dilapidated condition, that the acetylene lamps were broken and that the body was damaged considerably and the other parts of. the automobile were damaged so that the plaintiff lays his damages at about $1,200; that he sold the machine for $350 and that he paid $166 or thereabouts for repairs; that he was not able to use it and shipped it to Chicago and that they there repaired it and sold it for $350. This is the testimony upon which the plaintiff asks you to say that he was damaged and asks you to render a verdict for the amount that you think he was damaged.
    [It is incumbent upon the defendant to show that they were not guilty of negligence or that they did not do this damage to the machine.] [4] They have called a number of witnesses and they testify that when the machine was received at Baltimore it was in a dilapidated condition, that the lamp was hurt and the body hurt in other ways and some damage done to the machine. They testify there was nothing on it by which they could know where it was to go and that they then stored it in one of their warehouses and kept it until they found where it was to go and that they then put it in a car by itself and that they blocked the wheels and it came to Huntingdon, and that the wheels were blocked when it arrived here. They testify that nothing occurred on the Northern Central Railroad or Pennsylvania Railroad leading up to Huntingdon by which any damage could have occurred to that machine, and that when the machine got here they found it was blocked in the car and that it was. apparently in the same condition that it was when it left Baltimore.
    [Now, gentlemen of the jury, we say to you it is a question for you to determine whether the damage that was inflicted on this machine was done by the Pennsylvania Railroad Company. If'it was, then the plaintiff would be entitled to recover just what damage resulted to the automobile while in charge of the Pennsylvania Railroad Company.] [5] You have heard the positive testimony on the part of the railroad employees and you have heard the testimony on the part of the plaintiff. Now, which evidence appeals to you as reasonable men to be proper? One of the railroad employees tells you that it would be impossible for the machine if it was blocked in the car to jump out of that blocking and then get back in again in transit. You' are to consider all this evidence, gentlemen of the jury, in arriving at your verdict.
    You are not to take into consideration the facts that one of these parties is a private individual and the other a railroad company. Decide this case as if it was between two private individuals and had no reference to a corporation. The laws are passed for the protection of individuals and corporations alike. We cannot get along without individuals or without corporations; hence the law says such cases must be decided as though between two individuals.
    [If you find that the Pennsylvania Railroad Company, the defendant in this case, damaged this machine while in their possession — in their charge — then what damage did they inflict taking into consideration the condition of the machine when they received it, and that should be your verdict, if you find plaintiff is entitled to any damages whatever.]
    Verdict and judgment for plaintiff for $1,000. Defendant appealed.

      Errors assigned were (1) in refusing binding instructions for defendant; (3) in overruling motion for judgment for defendant non obstante veredicto; (3-6) above instructions, quoting them.

      John D. Dorris, for appellant,
    cited: Farmers’ Nursery Co. v. Cowan, 21 Pa. Superior Ct. 192; Needy v. R. R. Co., 22 Pa. Superior Ct. 489; Hauser v. R. R. Co., 147 Pa. 440; P. & R. R. R. Co. v. Schertle, 97 Pa. 450; Leh v. R. R. Co., 30 Pa. Superior Ct. 396.

      Thos. F. Bailey, with him J. R. & W. B. Simpson, for appellee,
    cited: Buck v. R. R. Co., 150 Pa. 170; Ga. R. R. Co. v. Gann & Reaves, 68 Ga. 350; Gulf, Colorado, etc., Ry. v. Edloff, 89 Texas, 454 (34 S. W. Repr. 414); Texas & N. O. R. R. Co. v. Brown, 37 S. W. Repr. 785; Lamb v. Camden & Amboy Railroad, etc., Co., 46 N. Y. 271; Ga. R. R. Co. v. Gann & Reaves, 68 Ga. 350; Aigen v. Boston & Maine R. R. Co., 132 Mass. 423.
    April 18, 1910:
   Opinion by

Henderson, J.,

The plaintiff’s cause of action as presented at the trial was damage resulting from the negligent transportation of an automobile which was delivered to the Florida East Coast Railway Company to be transported to Huntington, Pa. The defendant was the terminal carrier. The plaintiff’s evidence shows that the vehicle was delivered to the initial carrier in good condition; that it was securely packed in the car in a manner usual in the transportation of such property and that on its arrival at its destination it was in such a damaged condition as to be unfit for use and of little value. The property was transferred from the car in which it was shipped from Florida when that car arrived in Baltimore to a car of the defendant company and transported over the Northern Central Railroad and the main line of the defendant to its destination. There is little or no contradiction in regard to the condition of the motor car when it was shipped and its condition on its arrival in Huntington and a prima facie liability was established by this evidence. A presumption of .negligence arises which is sufficient to justify a recovery in cases where there is no other proof than of the delivery of the goods to the carrier in good condition and their arrival at the point of destination in a damaged condition: American Express Company v. Sands, 55 Pa. 140; Grogan & Merz v. Adams Express Company, 114 Pa. 523; Buck v. Penna. R. R. Co., 150 Pa. 170; and the rule seems to prevail generally that when goods are delivered to the first carrier in good order and are afterwards injured the presumption in the absence of anything to the contrary is that they were injured by the last carrier: 4 Elliott on Railroads, sec. 1450; 5 Thompson on Negligence, sec. 6569; Cote v. N. Y., N. H. & H. R. R. Co., 182 Mass. 290. At the conclusion of the plaintiff’s evidence the burden was therefore on the defendant to overcome the presumption of negligence. This it undertook to do by proof of the condition of the automobile at the time it was received from the connecting carrier at Baltimore, and the evidence was to the effect that when it was examined there it looked like an old automobile; that it was covered with dust or some other substance and that the “rear-end” lamp was broken. Nothing else was found to be broken at the examination then made. The automobile was not inspected between Baltimore and Huntingdon. The plaintiff offered evidence in rebuttal to support the theory that the injuries to it were received in its carriage by the defendant because of the failure to properly block and secure it, and the evidence bn that subject was contradictory as some of the defendant’s witnesses testified that it was blocked when the car arrived at its destination. Witnesses for the plaintiff who examined the car soon after it arrived did not find any blocks or evidence of blocking nor was any witness called who removed the blocks. Evidence was also lacking as to the manner in which the automobile was secured in the car when it left Baltimore. The evidence tended to show that such a vehicle not properly secured in the car would be injured in the usual movements of the train. The court submitted to the jury the question whether the damage to the machine occurred while it was in the custody of the defendant. The first and second assignments complain of the refusal of the court to give binding instructions for the defendant and to enter judgment non obstante veredicto. To comply with either of these requests it would have been necessary to eliminate from the case the presumption arising from the plaintiff’s evidence and material testimony bearing on the question of the relation of the defendant to the plaintiff’s damage. We regard the question presented as one of fact for the determination of the jury. The defendant was the last carrier and the property was concededly in a badly damaged condition when it was delivered to the plaintiff. Whether it was transported wholly over the defendant’s line or for a part of the route only it was incumbent on the defendant to account for its damaged condition and we find no error, therefore, in that part of the charge embraced in the fourth assignment. The presumption of negligence arising from the plaintiff’s evidence could, of course, be rebutted, but this was the defendant’s burden and whether it was successfully done was a question for the jury under all of the evidence. The charge presented the case very clearly and fairly on this subject. The third assignment relates to the charge of the court on the subject of damages. The 'particular part of the charge objected to is that which directed the attention of the jury to the evidence of the defendant in regard to the condition of the machine at Baltimore and instructing them to determine from the evidence what the injury was and what the value of the automobile was at that time. The complaint is that no evidence was introduced as to what the automobile was worth at Baltimore and that therefore the court was in error in instructing the jury in the manner described. The language of the court in this and other parts of the charge indicates that the word “value” was used in its broad sense as referring to the properties which rendered the automobile useful or desirable; its excellence or utility and not to its market value. It will be observed, too, that the evidence as to the condition of the machine was introduced by the defendant. It yras presumably within its power to present testimony showing the extent to which the vehicle was depreciated in value by the broken lamp or by the accumulated dust. The plaintiff does not found anything of his claim on the dusty condition of the automobile but on the structural defects which rendered it useless for its purpose and of little value in the market. The evidence of damage was introduced by the plaintiff in the presentation of his case in chief. To avoid or diminish liability was the burden of the defendant. If there was no evidence of the pecuniary amount of the damage done to the machine before it came into its hands the defendant has no ground for complaint that the court permitted the jury to take into consideration the damaged condition as alleged to have existed at Baltimore in fixing the amount of damages to which the plaintiff was entitled.

The assignments are overruled and the judgment affirmed.


text:
    Murray v. Auman, Appellant.

      Judgment — Judgment note — Evidence.
    Where a. judgment note for $1,000 is given to an attorney as trustee, and the latter subsequently assigns the judgment entered on the note to his client, a married woman, and the evidence shows that the intent of giving the note was to secure the payment to the married woman of a weekly allowance by her husband, and the attorney testifies that the note was given also to secure the payment of $200, attorney’s fees, but the preponderance of the testimony is against such contention, the judgment should be opened unless the plaintiff agrees to reduce the amount of the judgment to $800, and also agrees that the judgment shall be held exclusively as collateral security for the payment of the weekly allowance.
    Argued March 8, 1910.
    Appeal, No. 31, March T., 1910, by defendant, from order of C. P. Luzerne Co., Oct. T., 1907, No. 1,153, discharging rule to open judgment in case of James H. Murray, or Jas. C. Murray, Trustee, v. William H. Auman.
    Before Rice,- P. J., Henderson, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Rule to open judgment. Before Ferris, J.
    The opinion of the Superior Court states the case.

      Error assigned was order discharging rule to open judgment.

      Edward C. Klonower, with him Jas. L. Lenahan and Samuel W. Salus, for appellant.
    There was no appearance or printed brief filed for appellee.
    April 18, 1910:
   Per Curiam,

The judgment note in question was given to “James C. Murray, trustee or bearer.” Murray was at that time the defendant’s attorney and had represented him in a prosecution for desertion instituted by his wife which resulted in a sentence of the quarter sessions that he pay his wife 117.00 a month and give security in the sum of $300 to perform the sentence. The defendant did not give the security, but was permitted to go free upon the promise of Murray to the attorney of the prosecutrix that the defendant would pay to his wife $17.00 each month. Without going further into the details of the grossly irregular method whereby the defendant avoided strict compliance with the sentence, it is quite clear from the testimony that an ultimate purpose for which the judgment note was given was to secure payment to the prosecutrix of the monthly sum, and that when Murray took the note designating him as trustee he took it in trust for that purpose. This being so, and he having assigned the judgment entered on the note to her, there would be substantial reason for keeping it in force without diminution of amount for the purpose above stated, if there were nothing further in the case. But Murray testified on behalf of the plaintiff that the note was given also to secure payment of attorney fees, said to be in the neighborhood of $200. We think the preponderance of the testimony is against the contention that the note was given for anything except as security for the payment of the monthly sum of $17.00, and unless this question is eliminated from the case and the judgment restricted exclusively to the purpose above stated, it ought to be opened in order that the question of fact may be submitted to a jury. See remarks of Trunkey, J., in Darlington’s Appeal, 86 Pa. 512, 518, 519.

It is therefore ordered that the order be reversed and the rule to show cause be made absolute, unless the present use plaintiff, Mabel Auman, shall within twenty days from this date file in the office of the prothonotary of this court a written stipulation reducing the amount of the judgment to $800 and a similar declaration that the judgment in question is held exclusively as collateral security for the payment to her of $17.00 each month in accordance with the sentence of the court of quarter sessions referred to in the foregoing opinion, and that in the event of such paper being filed the prothonotary shall make the entry upon his record “ order affirmed at the cost of the appellant” and remit said paper to the court below with the record.