text:
    Jackson Smith and Sarah J. Smith, his Wife, for the use of the said Sarah J. Smith, v. The Borough of East Mauch Chunk, Appellant.

      Negligence — Requisite care of city streets — Municipal law.

    Persons using municipal streets and sidewalks of a borough at the present day are entitled to have them kept in such order and repair as to be safely used, and it is the duty of the proper officials of a borough ta see that this duty to the public is performed so that persons may travel the streets without danger to life or limb.

      Damages — Measure of — Injury from, defective sidewalk.

    The jury were correctly instructed, in case of injury resulting from a defective sidewalk that in estimating damages, they should allow, not only for the direct expenses incurred by the plaintiff by reason of the injury, but also for the privation and inconvenience she is subjected to, and for the pain and suffering, bodily and mental, which she experienced, and is likely to experience, as well as for the pecuniary loss she has sustained and is likely to sustain during the remainder of her life, by reason of such injuries.

      Negligence — Municipal law— Sidewalk — Question for jury.

    There being evidence tending to show that a wooden sidewalk in a borough street was, and had been for some time rotten, and that plaintiff’s injury resulted therefrom, and that the chief burgess had actual knowledge of the condition of the sidewalk, there was sufficient evidence on the question of negligence and notice to carry the case to the jury.

      Refusal of new trial — Excessive verdict — Misconduct of juror — Review.
    The amount of a verdict and the alleged misconduct of a juror were proper questions for review in the court below on a rule for a new trial, and the question having been considered after evidence taken and the rule discharged for good and sufficient reasons, the verdict will not be disturbed by the appellate court.

      Negligence — Husband and wife — Disclaimer by husband — Measure of damages.

    In a suit by husband and wife for injuries to the wife where the husband files a disclaimer, the jury may include his loss of services as a part of her claim.
    Argued Jan. 19, 1897.
    Appeal, No. 39, Jan. T., 1897, by defendant, from judgment of C. P. Carbon Co., June T., 1893, No. 20, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Trespass for injuries arising from defective sidewalk. Before Cbaig-, P. J., wbo charged the jury as follows:
    The issue which you have been sworn to try arises in a suit brought by Jackson Smith and Sarah J. Smith, for the use of Sarah J. Smith, against the borough of East Mauch Chunk. Jackson Smith is the husband of Sarah J. Smith, and he has filed a disclaimer, as we learn, of his right to recover for the loss of his wife’s services. He would have had a separate right of action on that particular ground, but having filed a disclaimer he does not choose to recover upon that. If you find a verdict in favor of plaintiff, you may include his loss of services in your verdict, as part of her claim.
    The plaintiff in this case claims to recover damages from this borough, because of an accident which befell her on the 6th of October, 1892, caused, as she alleges, by the dangerous condition of a pavement in front of the Kemerer lot, in the borough of East Mauch Chunk.
    She claims that on the morning of that day, about 9 o’clock, without any contributory negligence on her part — in passing over this pavement, on her way to the Lehighton Fair, — that the planks of this pavement were in such a dangerous condition, that in walking over them they either tipped or rolled over in such.a way that she tripped (is the language she used), or tumbled and fell over, striking a tree in the fall; and that because of that fall she injured her little finger, and was otherwise injured on her person. She alleges that this pavement was in a notoriously dangerous condition; that it was not safe for ordinary and reasonable use, and that this borough had both actual and constructive notice of the condition of that pavement.
    In order to recover, gentlemen of the jury, she must satisfy you by the weight of the evidence, that she was not negligent in walking over that pavement. She must satisfy you by the weight of the evidence that she was not guilty of contributory negligence in the least degree, before she can recover. Then she must satisfy you by the -weight of the evidence that this particular pavement, in front of the Kemerer lot, where she fell, was in a dangerous condition; that it was dangerous to ordinary and reasonable use by the public ; that it was observable to any one passing over it, and to the borough officers when using it. She must satisfy you, gentlemen of the jury, that the borough had notice of this dangerous condition of the pavement. That she may do, either by showing actual notice to the burgess, or by constructive notice, as we shall define it to you hereafter.
    The borough is not primarily liable for the condition of the sidewalks or pavements, because the primary liability is in the owner of the lot. But the borough has a supervision over the pavements, and therefore, it is the duty of the borough to be vigilant in observation, in respect to the condition of the sidewalks and pavements of the borough. The borough is not bound to seek. The borough is not bound to go and inspect. The borough is only held to a reasonable degree of vigilance, in the observation of defects that may exist in the pavements of the borough.
    This borough is a municipal corporation, and under the law it must maintain its pavements or sidewalks in such a condition of reasonable repair as will make them safe, by day or night, for ordinary use by those who have cause to use them. Municipal corporations are not insurers against accidents. They are held to due vigilance and care. They are bound to that degree of vigilance, and to exercise reasonable supervision over their sidewalks and pavements, as will make them safe and convenient for ordinary travel. But as the first duty in relation to the sidewalks rests on the property holder, and that of the borough is secondary only, it is not liable for defects without notice, actual or implied, of their existence. It is not obliged to seek defects, but to be vigilant to observe them when they are observable to an officer exercising a reasonable supervision. Then the question is, did the borough have actual notice of the condition of this sidewalk. Or had the condition of this sidewalk existed long enough before this accident to affect the borough with constructive notice. You have heard the evidence upon- both of these points. Upon the last point, as to constructive notice, you will determine from all the evidence in the case; considering the nature and character of the sidewalk; the condition it was in at the time of the accident, and the length of time it was in this condition before the accident, whether the borough had, or must be presumed to have had constructive notice or not.
    To be a little more definite in reference to what constructive notice is, we say to you, that the borough owes a duty of active vigilance to the public in respect to the condition of the pavements under its control, which binds it to discover defects therein within a reasonable time, though these defects are caused by the negligence and acts of others. For practical purposes, the opportunity of knowing, in such cases, must stand for actual knowledge; and therefore, where open defects in a pavement have existed for a considerable time, notice of them is implied, and is imputed to those whose duty it is to repair them; in other words, the borough is presumed to have notice of such defects as it might have discovered by the exercise of reasonable diligence. Such notice may be imputed also where a defect, though temporary, has been of frequent occurrence during a long period.
    Now, your first inquiry, gentlemen of the jury, in this case will be, whether this accident was produced by the sidewalk, under the circumstances already alluded to. Your second inquiry will be, did the negligence of the plaintiff, that is, Mrs. Smith, contribute in the slightest degree to the accident she met with. If it did, then it matters not how negligent the borough was, for the plaintiff cannot recover.
    So that you understand me distinctly, gentlemen of the jury, if this plaintiff was negligent in the slightest degree, in bringing about this accident, she cannot recover, even though the borough may have been negligent. She must show a case free from contributory negligence on her part before she can recover. If she knew the dangerous condition of the pavement and voluntarily went over it, when she could take a safer route, even though less convenient or longer, then she was guilty of contributory negligence.
    Now, we have said to you, gentlemen of the jury, that the duty of keeping this pavement in proper repair was secondary with the borough, not primary. Therefore, before the borough can be held liable — assuming that the plaintiff was not guilty of contributory negligence — before the borough can be held liable it must appear to you from the evidence, either that the borough had actual notice of the condition of the pavement at the time of this accident, or that the borough had constructive notice of the condition of the pavement, as we have already defined constructive notice to you.
    Now, actual notice, gentlemen of the jury, is where notice has been given to the burgess of the town, of the condition of the pavement. That is actual notice, whether he has had it either in writing or orally. The plaintiff in this case claims that the borough had actual notice, because of the conversation she had with Mr. Beighe, the burgess, a very short time after the accident happened.. You have heard her testimony as to what conversation she had with Mr. Beighe when she was on her way — just after the accident. And also the testimony of Mrs. Eck, who was present at the time when they claim that Mr. Beighe made the statement from which they argue the borough had actual notice of the condition of the pavement prior to this accident. Now, in order that you may have what was said by the plaintiff upon this particular subject, I will read to you the note of her testimony, which the reporter has given me. The question was first, “where she met Mr. Beighe ” and she said, “Between Dr. Moyer’s and the drug store.” “ Q. Who is he ? A. Why, he was the chief burgess at that time. Q. You may state what was said to him ? A. I said, see here what you did with your old pavement. He said, whose pavement was it ? I said, I don’t know, I will find out. And he said, it wasn’t his pavement, he could not help it, they were told often enough. I told him it was below Berwick’s. I didn’t know whose it was at that time. I told him it was just below Berwick’s. Q. He said, they were told often enough? A. Yes, sir. To the court: he said, why, he could not help it, they were told often enough.”
    Now, you will observe by that language, that it is not entirely definite and specific, but somewhat equivocal. According to her statement, Beighe said, they were told often enough. But this conversation does not define who “ they ” were. We therefore submit this testimony to you. Mrs. Eck substantially says the same thing, because she was by at the time. And you are to say — if you believe that to be that testimony — you are to say, from all the evidence in the case; from all you heard here as to what transpired between Beighe and this plaintiff, whether this language referred to this particular pavement or not.
    Now, in that connection you will take, of course, in consideration the testimony of Mr. Beighe. Mr. Beighe denies that he used this language. We have therefore, the testimony of Mrs. Smith and Eck on one side and Mr. Beighe on the other; and you are to determine, from what you have heard in this case from these witnesses, from their manner on the stand and their interest, which you will believe.
    But the plaintiff claims more. She claims that, not only was this actual notice to the borough, but she claims the borough had constructive notice of the condition of that pavement. In other words, that that pavement was in a dangerous condition, and had been so for a long time previous to this accident; and that it was observable, notorious to all who passed and repassed on the pavement.
    You have heard the testimony of Mrs. Eck and Luther LaBar and James Henritzy, as to the condition of that pavement at the time of the accident, and prior thereto. From that, the plaintiff asks, and contends that the condition of the pavement was observable, and had been in that condition for a. long time previous to that time; and that the borough neglected to use that vigilance, that observation, which is necessary on the part of the borough authorities in order to keep the sidewalks in proper, safe and reasonable repair.
    On the contrary, the borough has brought on the witness stand, Mr. John Beighe, Charles Kannabel, Horn, Gossner, Swartz, Bennyhoff and Moyer and Mrs. Koons, all of whom gave testimony which bears upon the condition of this sidewalk at the time of the accident. And the borough says, contends that these witnesses should satisfy you that that walk was in- a reasonable condition of repair; that any defect that might have been in it was not observable; that by using the vigilance the law requires a borough to observe, it was not possible to have seen this defect.
    Of course, if the defect was not observable by using ordinary care and vigilance, then the borough is not an insurer, and is not bound to go around and seek defects.
    The question for you is, taking the evidence on both sides, in reference to constructive notice, as you have these witnesses here, does it satisfy you that that pavement was in a dangerous condition for ordinary use by passers-by; or was it in an ordinary, safe condition at the time. If it was in an ordinary and safe condition, not observable by the use of vigilance, the borough is not liable.
    If, on the contrary, it was not in an ordinary, safe and reasonable condition, so as to be safe for passengers crossing it in an ordinary, careful way, then we say to you there may be a recovery.
    Now, gentlemen of the jury, it is not in our province to enter upon any discussion of the evidence in this case. That is a matter which counsel have commented upon, and is a matter for you, purely, to determine from the evidence the facts as they have arisen in this case.
    The plaintiff claims damages, by reason of these injuries, as we have already defined to you, on the part of the borough. We have already said to you if she was guilty, in the slightest degree, of any contributory negligence, she cannot recover.
    If, however, you are of the opinion, under the law and instructions. we have given you, that this plaintiff is entitled to recover, then you have in evidence the injury to her finger, and the condition in which it has been left by the injury. You may take into consideration, in your item of damages that and the direct expenses she was liable for by reason of the injury — such as the doctor bills, and 'her washing bill, which was extra, and service bill. Those are matters that you take into consideration. Then she claims that by reason of that accident she injured her back, and that she suffered in her abdomen on account of this injury.
    ■We say to you, gentlemen of the jury, that if you find for the plaintiff, in estimating the damages, you may allow, not only for the direct expenses incurred by the plaintiff by reason of the injury, but also for the privation and inconvenience she is subjected to; for the pain and suffering, bodily and mental, which she experienced, and is likely to experience; as well as for the pecuniary loss she sustained and is likely to sustain during the remainder of her life, by reason of such injuries. You aré not to allow, if you find damages, any interest — that is, interest from the time of the injury occurred to the present time ; but in estimating your damages, if you conclude there are any, you may take into consideration the- time that has elapsed between the injury and the time you render your verdict.
    The plaintiff has submitted a number of points, which we will proceed to answer:
    First. It is the duty of the borough of East Mauch Chunk to keep and maintain its sidewalks and pavements in a reasonably safe condition for public travel. We affirm that proposition. -
    Second. That if the jury find from the evidence that the pavement in question was in an unsafe condition, before and up to the time of the accident, and it remained in such dangerous condition for a long period of time before the accident; and it being the principal street in the borough of East Mauch Chunk, the borough would be visited with constructive notice of the condition thereof, and be liable for damages in the same manner as though it had actual notice thereof. That point we affirm, but we add: If the dangerous condition was apparent to the officers of the borough, exercising reasonable vigilance, observation, supervision and care, and if it existed long enough, notoriously, before the accident, so that the borough was affected with such notice.
    Third. If the jury find from the evidence, that Sarah J. Smith met Mr. J. H. Beighe, the chief burgess, shortly after this-accident had happened, and stated to Beighe: “ Here you can see what I did on your old pavement,” and he asked, “What pavement; ” and she said, “ I don’t know, it was right belowBerwick’s ; ” that he then said, “I can’t help it, it is not mine, they were told often enough about it; ” that that showed the borough had actual notice of the poor condition of the pavement. We affirm that proposition, if the jury find that Mr. Beighe, in> this alleged conversation, referred to the pavement in question.
    Fourth. That notice to the chief burgess of the borough of East Mauch Chunk, was notice to the borough. We affirm that.
    Fifth. If the jury find for the plaintiff in estimating the damages, they should allow, not only for the direct expenses incurred by the plaintiff by reason of the injury, but also for the privation and inconvenience she is subjected to, and for the pain and suffering, bodily and mental, which she experienced, and is likely to experience, as well for the pecuniary loss she has sustained and is likely to sustain during the remainder of her life,: by reason of such injuries. That point we affirm. [2]
    Sixth. If the borough authorities of the borough of East Mauch Chunk failed to keep the sidewalks in a reasonably safe: condition, they were negligent in the performance of their duties, and if by reason of such failure to keep the sidewalks in the borough of East Mauch Chunk, at the point where this accident happened, in a reasonably safe condition, Sarah J. Smith, the plaintiff, fell and received injuries, the borough would be liable for damages for such injury. We affirm that proposition and add, if the unsafe condition of the pavem ent where this accident happened could be discovered by the borough authorities, in the exercise of reasonable vigilance, care and supervision; and if the jury find that this plaintiff was not guilty of contributory negligence in any degree.

      Seventh. The positive testimony of plaintiff’s witnesses, Luther LaBar, James Henritzy and Matilda Eck, that the pavement was in bad condition; that the planks were loose, that there were holes in them is entitled to more weight at the hands of the jury than the merely negative testimony of the defendant’s witnesses, who simply testified that they saw no defects. We affirm that, and add: If the jury find that any of defendant’s witnesses gave merely negative testimony, this would be so. This would be true, merely of negative testimony only. But the defendant here claims that most — if not all the witnesses, at least a large number of them — testified positively as to the condition of that pavement. However, we affirm that point on the ground that affirmative testimony is of greater weight than mere negative testimony on a particular question.
    Defendant has also submitted a number of points to answer, which we proceed to answer.
    First. Even though the injury occurred to the plaintiff by reason of a defect in the sidewalk, the borough defendant is not liable therefor, unless it had express notice of the defective condition of the same, or unless the same was so notorious as to be evident to all persons passing thereon. We affirm that proposition.
    Second. It was the duty of the plaintiff, when walking on the sidewalk, to exercise due care; if the jury believe that she didn’t do so, and that her carelessness or negligence contributed, in even the smallest degree, to the accident, she cannot recover, even though the pavement was defective. We affirm that proposition.
    Third. The borough is not obliged to seek defects in the sidewalk. The law only requires that it should be vigilant to observe them when they become observable to an officer exercising reasonable care. We affirm that proposition.
    Fourth. In the absence of actual or implied notice of the condition of the sidewalk, the borough was not bound to examine, in order to ascertain its condition, and notice of its defective condition could not be implied if the defect could not be seen without removing the plank and making an examination; and in the absence of notice the borough was not bound to do this. We affirm that proposition.

      Fifth. There is no such evidence of actual or constructive notice of the dangerous condition of the sidewalk as would render the borough liable for the injury occurring thereon, and the verdict should be for the defendant. We negative that proposition, because then we would be obliged to take tins from your consideration. That is a matter entirely for you under the evidence. [3]
    Sixth. If the injury was caused to the plaintiff by her carelessness, she cannot recover, and the verdict should be for the defendant. We affirm that proposition.
    Now, gentlemen of the jury, there is no dispute here but what this lady met with an accident on October 6, 1892, where this pavement is in front of Kemerer’s lot. That is not disputed by either side, that she had a fall there and by reason of that fall she did injure her finger — although the defendant here claims that the evidence does not show that she was injured in her person, viz: her back and abdomen. That is as we understand their contention. But the fact that her finger was injured in the manner described, that is not disputed here.
    The first question which you are to meet when you get to the jury box is the inquiry, did this accident result from the negligence of the borough, as we have already defined it to you? Then if it did, the next inquiry is, did the plaintiff’s negligence contribute, in the slightest degree, to this accident?
    If the borough was negligent, and yet she was negligent in the slightest degree, she cannot recover.
    Something was brought out in the evidence as to the manner in which she passed over the pavement — as to the speed. She said she went in an ordinary way. One of the witnesses described it: “ She was short of person and stout and moved quickly,” or words to that effect. Did that evidence amount to contributory negligence ? This witness says she did not know the condition of the pavement before, was ignorant of its condition ; that she lived on the opposite side of the street; that she went across to meet Mrs. Eck to go with her to the fair; and that she went with her; that she was a step or two ahead of Mrs. Eck and the girl, and that passing over this place with ordinary care, this accident happened.
    If the borough was not negligent she cannot recover. If the borough was negligent, and she was negligent also, and her negligence contributed in the slightest degree to the accident, she cannot recover.
    Now, gentlemen of the jury, we have given you the law, as we understand it, in this case. We have answered these points, and you have heard the evidence and comments of counsel. It has taken a great deal of time, necessarily, because quite a number of facts were under investigation. You will render such a verdict as you think is right and just between this plaintiff and defendant, under the instructions we have given you.
    Verdict for plaintiff for $750. Defendant appealed.

      Errors assigned were (1) in admitting on cross-examination of Frank Swartz, defendant’s witness, the following evidence : “ Q. You are of opinion that no board pavements are any good? A. Yes, sir, I am of that opinion. Q. And that they become poor and dilapidated-in a short time? A. Yes, sir;” (2) in affirming plaintiff’s fifth point; (3) in refusing defendant’s fifth point; (4) the amount of verdict was excessive; (5) in not granting a new trial, for the following reason : One of the jurors, John Sittler, slept in the jury box a considerable portion of time during the trial, and while testimony of witnesses was being given, and upon the public street during the progress of the trial, made public statement about the trial, which showed that he had prejudged the case, the statement so made, being: “I knew enough about it'long ago. If I did sleep, that is all right. I don’t want to know any more about it.”

      J. S. Fisher, for appellant.
    The borough is not obliged to seek for defects in a sidewalk. The law only requires that it shall be vigilant to observe them when they become observable to an officer exercising reasonable care: Lohr v. Phillipsburg Borough, 156 Pa. 246; Duncan v. City of Philadelphia, 173 Pa. 550.
    Where there is nothing in the testimony to justify an infer-' ence made in the charge, the same will be held misleading in that respect, and prejudicial to the appellant: Kelly v. Eby, 141 Pa. 176; Railroad Co. v. Alvord, 128 Pa. 42.
    For a defect arising in a sidewalk of a municipal corporation,, without its fault, it is not liable, unless it has express notice, or the defect is so notorious as to be evident to all passers : Lohr v. Phillipsburg Borough, 156 Pa. 246; Burns v. City of Bradford, 137 Pa. 361.

      Horace Heydt, with him Wm. G. Freyman and E. O. Nothstein, for appellee.
    In Howser v. Commonwealth, 51 Pa. 341, Woodward, Chief Justice, says : “ as to the overruling of the motion for a new trial it is not a proper subject for an assignment of error. The discretion of the court is not reviewable here.”
    February 16, 1897:
   Opinion by

Willard, J.,

Persons using the streets and sidewalks of a borough at the present day are entitled to have them kept in such order and repair as to be safely used, and it is the duty of the proper officials of a borough to see that this duty to the public is performed so that persons may travel the streets without danger to life or limb. That this duty in many cases is unperformed is apparent from the number of cases in our courts for damages for injuries caused by the neglect of those entrusted by the people with the care and supervision of streets and sidewalks.

In the case before us, the plaintiff was injured on Centre street in the borough of East Maueh Chunk while walking upon a sidewalk where she had a right to be. As to the condition of the sidewalk at the point where the plaintiff was injured there was evidence that the stringers were decayed. In the language of one witness, they “ were all rotted down to the ground where the planks were loose.” There was other evidence that the planks were loose and in bad condition. The plaintiff testified that by reason of the rolling of one of the loose planks she was thrown over against a tree and sustained injuries fully described by her in her testimony, and by the physician who dressed her wound and afterwards attended her. There was sufficient evidence of the unsafe condition of the sidewalk to carry that question to the jury.

There was also evidence that prior to the injury the appellant had actual notice of the condition of the sidewalk. Notice to the chief burgess is sufficient: Fee v. Columbus Borough, 168 Pa. 382. In his testimony the burgess says, “ I knew the sidewalk was not as good as it ought to be.” From this evidence of the burgess himself in connection with the other evidence in the case the jury had the right to conclude that it was not safe and that he knew it. There is also evidence that the burgess lived within two hundred and ten feet of this sidewalk and frequently passed over it; also, that immediately after the accident, in a conversation with the plaintiff, the burgess used language indicating previous'knowledge on his part of the condition of the sidewalk. Mrs. Smith testified, “ I said, see here what I did on your old pavement. He said, whose pavement was it ? I said, I don’t know, I will find out. And he said, it wasn’t his pavement, he couldn’t help it. They were told often enough.” Although Mr. Beighe (the burgess) denies this in his testimony, Mrs. Smith was fully corroborated by another witiress. This testimony, its meaning and effect, was for -the jury on the question of actual notice.

The accident happened on October 6, 1892. Matilda Eck; a witness,' testified that she moved to East Mauch Chunk in June 1891. According to her testimony, the sidewalk in front of the Kemmerer lot was then out of order, the planks loose, and that it so continued to the time of the accident. Her testimony, together with that of Luther LeBar and other witnesses, compelled the court to submit the question of constructive notice of the condition of the sidewalk to the jury.

The opinion of the witness, Swartz, as to board sidewalks, elicited on his cross-examination by the plaintiff’s counsel, as explained by the witness himself, was more favorable to the defendant than plaintiff, and was in fact but a reiteration of the same opinion previously brought out on the cross-examination of the same witness by defendant’s counsel when on the witness stand for the plaintiff.

The charge of the court on the elements of 'damage to be considered by the jury in arriving at their verdict, was in familiar language sanctioned as a correct rule by our Supreme Court in repeated decisions.

The amount of the verdict and the conduct of the juror assigned for error in the fourth and fifth specifications were proper questions for review in the court below on the rule to show cause why a new trial should not be granted. Thirty-five pages of testimony were taken and submitted to the court on the hearing. The rule was discharged by the trial judge, we presume, for good and sufficient reasons, and we do not propose to disturb the verdict. The specifications of error are all overruled and the judgment affirmed.


source: Caselaw Access Project

author: Wickham, J.,

license: Public Domain

text:
    J. H. Eply and Nancy Eply v. The Lehigh Valley Railroad Company, Appellant.

      Negligence — Question for jury — Duty to give danger signal.

    The case is for the jury where there is evidence, tending to prove that the train was running very rapidly on a straight track with a clear view thereof for two miles ahead from the engine cab; that an infant was seen standing near the track at a crossing and facing the engine fully half a mile away; and that the engineer and fireman did not ring a bell or blow the whistle, which might have aroused and alarmed the boy and caused him to advance or retreat to a place of safety.
    It was for the jury to say whether some danger signal should not have been given.

      Negligence — Railroads—Increased speed demands increased care.

    A railroad company when moving its trains through an open and sparsely settled country has the right to do so as rapidly as their machinery and roadbed will allow. Past running under such circumstances does not in itself amount to negligence. Increased speed means, however, increased danger to persons crossing the track and increased care on the part of the railroad company becomes a duty.
    Argued Jan. 19, 1897.
    Appeal, No. 4, Jan. T., 1897, by defendant, from judgment of C. P. Bradford Co., May T., 1894, No. 706, on verdict for plaintiffs.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Trespass to recover for negligent killing of plaintiff’s son. Before Peck, P. J.
    Tbe court reserved the point whether “ there was any evidence in this case upon which plaintiffs are entitled to recover,” and on January 6,1896, without filing an opinion, directed judgment to be entered on the verdict.
    The facts are sufficiently set forth in the opinion of the Superior Court.
    Verdict for plaintiffs for $1,000. Defendant appealed.

      ¡Errors assigned were (1, 2) refusal of binding instructions in favor of defendant.

      W. T. Davies, of Davies Davies, and Henry Streeter, for appellant.
    There was no evidence that the train was running at a dangerous, reckless, unreasonable or improper speed, or that tbe speed of tbe train in any wise contributed to tbe accident: Goshorn v. Smith, 92 Pa. 435; Railroad Co. v. Ritchie, 102 Pa. 425.
    A high rate of speed is not negligence per se: Childs v. Railroad, 150 Pa. 73.
    We have the case of a little boy not quite seven years old, unexpectedly and without warning running in front of a moving engine: Fleishman v. R. R., 174 Pa. 510.
    It was grave error to submit the question of négligence to the jury, when there was no evidence of it: Chilton v. R. R., 152 Pa. 425; Funk v. R. R., 175 Pa. 559.
    A clearer case for binding instructions would hardly have been presented and the duty of the court was plain: Woodbridge v. R. R., 105 Pa. 460; Funk v. R. R., 175 Pa. 559.

      D. C. De Witt, for appellee.
    The company had allowed the neighboring population to use its tracks as a way across their lot: Kay v. Railroad Co., 65 Pa. 269, which is cited with approval in later cases.
    It is clearly the duty of the engineer and fireman to give warning by sounding the whistle or ringing the bell or hallooing to the boy. Then if the boy did not move the engine should have been reversed and every effort made to stop the train. These being the facts in this case it was one proper for the jury: Railroad Co. v. Morgan, 82 Pa. 134.
    It is the duty of those in charge of a train when approaching a public crossing to give notice by whistling, ringing the bell, or other device sufficient to give warning of the approach, and in sufficient time to enable those coming to the crossing to stop in safety, or, if on the track to get out of danger; also to look along the track, and if they see, or might see, by due care and caution, any obstruction on the track, to check the train by every means in their power: Railway Co. v. Dunn, 56 Pa. 280.
    February 16, 1897 :
   Opinion by

Wickham, J.,

About half past 5 o’clock, on the evening of April 9, 1894, the plaintiff’s son Frank, aged six years and eleven months, was struck by a south bound train of the defendant company on the Barclay Railroad, at a crossing, and instantly killed. The defendant company, it seems, had an arrangement with the Barclay Railroad Company for the use of the latter’s tracks. The fact that the boy was struck was not known to anyone on the train until the next morning.

The plaintiffs allege that the train was running at a speed of about sixty miles an hour. The defendant, while conceding that the train was behind time and was going somewhat faster than usual, avers that the speed thereof did not exceed twenty-eight miles an hour, at the most. The evidence is conflicting about this matter, but whatever may be the truth concerning it, Ave do not think that fast running, under the circumstances, Avould, in itself, amount to negligence. The country through which the train was passing was open and sparsely settled, and the defendant had the right to move its trains as rapidly as their machinery and roadbed Avould allow: Childs v. P. R. R. R. Co., 150 Pa. 73. In the same case, however, it is laid down, that as increased speed means increased danger to persons crossing the track, increased care on the part of the railroad company becomes a duty.

There is also some controversy whether or not the crossing where the child was killed, and which for convenience Ave may call the Eply crossing, is public or private in its character. There is considerable evidence in favor of the theory that it belongs to an old and little used highway, narrowed at all points and at one end obstructed or closed, bat this question, under the peculiar circumstances of the case, is not of much importance. It is quite certain that the way, which is about fifteen feet Avide, existed for more than forty years, long before the railroad was laid, and that it Avas recognized by the Barclay Railroad Company, which company at all times kept the crossing in repair and planked so as to be fit for use. Ever since the railroad was built, the crossing and road were used freely, not only by owners and occupiers of lands in the vicinity, but as well by all who desired so to do. It was mainly traveled, however, by the Eplys and a family named Wolfe, living near by and east of the railway.

It had never been the practice of the defendant company’s engineers, or those of the Barclay Railroad Company, to whistle or ring the bell for this crossing, and, perhaps, ordinarily they were not required to do so. About two hundred and seven rods north, the course of the railroad being north and south, is another crossing known as Scott’s, and north of that is a whistling post. This whistling post is two hundred and seventy-eight rods and thirteen and one-half feet north of the Eply crossing. After passing Scott’s crossing, going south, and reaching a point about two hundred rods north of Eply’s an unobstructed view can be had, from a locomotive cab, for more than two miles ahead, the track being straight for that distance. The road or lane, for which the crossing exists, commences at the public highway, which runs parallel with the railway, and connects Towanda and Monroeton. From its intersection with that highway, it runs some fifteen hundred feet east, crossing the railway at a right angle, and practically ends at the Eply and Wolfe houses. The plaintiff’s house is three hundred to three hundred and fifty feet east of the railway.

A short time before he was killed Frank Eply, accompanied by two playmates, Deleon Smith, aged ten, and Mit Robinson, less than six years old, came home from school. His companions stopped a few feet west of the crossing, to play in a brook, which crosses the road at that place and is spanned by a small bridge. Presently they called on him from the crossing to rejoin them, which he started to do. Just before this, Mrs. Eply, who was alone at the time, saw her boy in the yard. She saj^s she walked around the woodshed to feed some chickens, thus losing sight of him, and did not see him again alive. The accident must have happened very soon after she saw him in the yard. The evidence is conflicting as to what occurred immediately before his death. Young Smith, a witness for the plaintiffs, says that Frank started on a run from the house, accompanied by his dog, which was barking; that he seemed not to have observed the approaching train, and never stopped until he was struck by the locomotive on the crossing. On the other hand, the fireman of the engine, who was called in behalf of the defendant, testifies that when the train was half a mile distant from the scene of the accident he noticed the boy at the crossing, standing four or five feet from the left rail, the dog being between the tracks; that he so remained, facing the coming train, until the engine was as near to him as the length of two or three rails, when he ran as fast as he could in an attempt to cross the track; that when he got on the middle of the track he disappeared from view, the front of the engine concealing him, and that he, the fireman, then went quickly to the right-hand side of the engine, and looking back, saw a boy that he supposed was the same one standing near the rear of the train uninjured.

These two witnesses are the only ones who profess to have actually seen the deceased when he was on or near the railroad, although there is some evidence corroborative of young Smith’s account of the accident. The engineer says he did not see the boy at all. It is conceded that the whistle was not blown, .nor the bell rung, south of the whistling post for Scott’s crossing, which, as we have seen, was two hundred and seventy-eight rods and thirteen and a half feet north of the Eply crossing. Young Smith testifies, that when Frank was struck he, Smith, and the smaller boy, Robinson, were down at the bridgé already spoken of, which was probably a rod west of the crossing.

It is not, and cannot be contended here, that the child could be, or that the mother was, guilty of any contributory negligence. The argument of the appellant’s counsel is properly confined to the one question, whether there was sufficient evidence of negligence on the part of defendant’s servants to be submitted to the jury. It is urged strongly that the unfortunate accident resulted, not from any carelessness or recklessness of the engineer or fireman, but because of a sudden childish impulse on the part of the deceased, which led him to thoughtlessly rush to his death. In considering the question before us, we need only take the testimony of the fireman, the defendant’s own witness, in connection with the uncontroverted facts, to reach the conclusion that the court below committed no error in sending the case to the jury. We quote from the fireman’s testimony on cross-examination:

“ Q. When you first saw the boy and the dog was the boy standing up or sitting down ? A. Standing up. Q. Did the boy move at all until you got within about ninety feet of the - A. He stood perfectly still until we got the length of two or three rails from him. Q. Which way was the boy’s face ? A. Towards the engine. Q. His face was right towards the engine? A. Yes, sir. Q. Was the dog standing up or sitting down? A. Sitting down about a foot or eight or ten inches away from the rail, inside of the rail. Q. Then the dog was close enough so that you could hit him ? A. Yes, if he had staid there, but the dog got off. Q. If the dog had remained you would have hit him? A. Yes, sir. Q. But you gave no signal with your engine ? A. No, .sir. Q. You didn’t ring any bell? A. No, I didn’t think it was necessary. Q. In your judgment, how long did that boy stand there? A. Why, I couldn’t exactly say. He stood there quite a little while. I could see him from very near from Scott’s crossing, this side of Scott’s crossing; it was about a half a mile, I should think, from the time I saw the boy. .Q. How long, in your judgment, was it ? A. Why, he must have stood there half a minute or such a matter, I should think. Q. You think he stood there half a minute? A. Yes, sir. Q. And during that time your train ran half a mile, and you think your train was running about twenty miles an hour ? A. About twenty or twenty-five, or such a matter; somewhere along there. Q. If you ran that half mile in half a minute, your train was going sixty miles an hour ? A. At that rate; yes, sir.”

In the light of this testimony, which the defendant cannot complain was submitted to the jury, as it came from its principal witness, the learned trial judge would have been clearly in error had he given a binding instruction in favor of the defendant. It was for the jury to decide whether young Smith or the fireman told the truth. Accepting the statement of the latter, we find that when fully half a mile distant, he plainly saw the child loitering at the crossing under such circumstances as to be practically in danger from the swiftly running train, considering his tender years, immature judgment, and naturally impulsive disposition. The boy must have been equally visible to the engineer, had the latter been ordinarily watchful, as he testifies that his vision could embrace the whole track ahead, from a point twenty to thirty feet in front of his engine. It is quite probable that a few short, sharp sounds of the whistle would have aroused and alarmed the boy and caused him to advance or retreat to a place of safety, instead of waiting until the locomotive was almost on him. Many a child has been saved from death or injury on the ordinary highways by the unintelligible shouts of the driver of a common vehicle.

We do not say that it was the duty of those in charge of the train, under the facts of the case, to stop, or perhaps to even slacken speed, but it was for the jury to say whether some danger signal should not have been given. The whistle and bell on a locomotive ought to be used, not merely in an effort to save those who are in actual imminent peril, but as well to warn those who, there is any reason to fear, may involuntarily put themselves in a place of danger.

In some material respects, the case in hand greatly resembles that of Taylor v. Delaware & Hudson Canal Company, 113 Pa. 162. There, the plaintiff, a girl eight years old, was injured while running across the defendant’s railway, on what was, at the most, a permissive footway. The engineer, because of a train standing on a siding, could not see her until she ran in front of the engine. The court in reversing the judgment of nonsuit granted by the court below, said: “If plaintiff had been duly warned, either by sounding the whistle or ringing the bell, it is not at all probable she would have attempted to cross the track in the face of known danger. The question of contributory negligence does not arise in the case. The age of plaintiff at the time of the accident precludes that. If, under the evidence, she was not a'trespasser on the premises of the company, the question is, whether it was not their duty to give suitable warnings of the approach of their train; and failing to do that, whether they are not guilty of negligence which was the proximate cause of the injury.”

Nothing more need be said in vindication of the judgment and the manner in which the case was tried in the court below.

Judgment affirmed.


author: Beaver, J.,

text:
    James B. Stark and Ruth Stark, appellants, v. F. B. Hight, Helen Asheld and Pierre Asheld.

      Landlord and tenant — Building when a chattel real.

    A lease for years is a chattel real, and a building erected on a chattel is itself a chattel. If this were not so as a matter of law it may be made so by the terms of the lease.

      Landlord's right to preferred claim out of proceeds of leasehold sold.

    It is only in cases where the landlord reserves in his lease the right to forfeit the lease upon nonpayment of rent and the right to re-enter and repossess himself of the premises, that it has ever been held that the landlord has a lien upon the fund raised by sale of the leasehold. In the case at bar no such right was reserved by the landlord.

      Landlord and tenant — Preferred claim for rent.

    Where a building and leasehold both of which are chattels belonging to the tenant are sold under an execution, the landlord has no preferred claim to rent beyond the amount of rent due for one year.
    Argued Jan. 20, 1897.
    Appeal, No. 35, Jan. T., 1897, by plaintiffs, from decree of C. P., Wyoming Co., April T., 1896, Nos. 178 and 179, making distribution of fund in sheriff’s hands.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    A case in the nature of a case stated. Before Dunham, P. J.
    The facts sufficiently appear in the opinion of the court below which is in part as follows :
    From the agreement of parties, and the papers submitted, the facts in the case are as follows, viz:
    On the 11th day of December, 1883, the heirs of Henry Stark, deceased, leased to Benj. R. Bedford, for a period of ten years, a certain piece of land in Tunkhannock borough, at a yearly rental of $60.00, payable quarterly in advance. It was also a part of the said lease that Bedford should erect a brick building upon the leased premises, and that he, Bedford, might renew the lease, for a further period of five years after its expiration, and at the end of the term of the lease, the heirs of Henry Stark, deceased, had the privilege of taking the building, erected upon the premises, “ at a value to be fixed thereon by three disinterested appraisers.” And in case the improvements are not taken at the appraisement then Bedford to have the right to remove the same “ within one month after the end of the term or expiration of the lease.” This lease was assigned by B. R. Bedford to Pierre Asheld, and was continued by agreement for five years, or until December 11, 1898.
    Judgments were entered against Pierre Asheld, and upon March, 31, 1896, two fi. fas. were placed in the sheriff’s hands, one in favor of F. B. Hight, for $385, which was received by the sheriff at 6:41 A. M., and one in favor of Helen J. Asheld, for $256.65, which was received by the sheriff at 6:12 o’clock P. M. of said day.
    Upon these fi. fas. the sheriff levied upon the property of Pierre Asheld, situated upon the leased premises, on the 1st day of April, and sold the same upon the 8th day of April, 1896, as shown by his return, the whole sale amounting to the sum of $474.06.
    At this sale notice was given the sheriff that the property levied upon was subject to a lien for rent prior to all other liens, amounting to $127.30, with interest, and demanding that the sheriff pay this sum to them out of the proceeds of the sale of the property levied upon.
    The amount due the heirs of Henry Stark for rent at the time of the levy, it is agreed by all parties, was for two years’ rent at $60.00 per year, or $120.
    The personal property, situated in the house, upon the premises, sold for $44.06, and the balance of the fund is raised from the sale of the “ brick building, etc., and leasehold interest of land with Henry Stark estate, deceased,” which amounted to $430.
    On the part of the execution creditors of Pierre Asheld it is claimed that the landlord is entitled, under the acts of 1772 and 1836, to but one year’s rent out of the proceeds of the sale, or the sum of $60.00, and that the balance should go to the execution creditors.
    Upon the part of the heirs of Henry Stark, deceased, it is claimed that the amount realized from the sale of the leasehold estate of the defendant in the execution should be applied first, to the payment of the rent due, without regard to the length of time the rent is due for, and, in support of this proposition, have cited a large number of cases, most of which are cases where the real estate itself has been sold, and where rent was reserved, or ground rent. These cases are not at all applicable to the case at hand, however, and do not in any way rule this case. Wood’s Appeal, 30 Pa. 274, and some others cited, were cases where the lease was for coal property, and where the lessee was taking portions of the real estate, and upon that account were held to be in the nature of ground rent. No case has been cited where, as in this case, the rental was merely for the use and occupancy of the land, where the sale of the leasehold rights of the lessee was applied to more than one year’s rent. Yet we are not prepared to say, that where the fund for distribution is raised by sale of such rights, clearly, and so that the amount so raised could be ascertained and shown, that the landlord would not be entitled to the payment of his rent from that fund, without regard to the time for which such rent was due.
    In the present case the fund, $430, is raised by sale of a brick building, clearly personal property as much as any other property of defendant in the execution, upon the premises, and “ leasehold interest of land with Henry Stark estate, deceased.” How much of this fund then, is raised by the sale of the building, and how much by sale of the leasehold? We are utterly unable to determine. And if a landlord cannot receive his rent out of a sale of personal property, where the rent is for real estate and personal property so mixed up as that it cannot be told how much is for the premises and how much is for the use of personalty, we think by the same reasoning, that where the fund is so mixed up that no one can tell from what source the same is realized, or how much from each source, that the court should not assume that a sufficient amount was received from a particular source to pay the full amount of rent in arrears. We therefore distribute the fund in court as follows, viz :
    Amount in Court......$448.98
    To heirs of Henry Stark, dec’d, for one year’s rent....... . 60.00
    Leaving to apply on executions . . . 388.98
    To F. B. Hight, Judgt. in No. 179, April T., 1896 ........ 385.00
    Leaving to apply on Judgt. of Helen J. Asheld,
    No. 178, April T., 1896 . 3.98

      To the above distribution exceptions were filed by the plaintiffs, which were dismissed in an opinion by Dun ft AM, P. J., as follows:
    In this case, after hearing the parties on a reargument of the case, and carefully considering the authorities again, we are more than ever convinced of the correctness of our former ruling in this case.
    [It is only in cases Avhere the landlord reserves in his lease the right to forfeit the lease upon nonpayment of the rent, and the right to re-enter and repossess himself of the premises, that it has ever been held that the landlord has a lien upon the fund raised by sale of the leasehold. In this case no such right was reserved by the landlord.] [2]
    It is true the lessor agrees to quit if he does not pay the rent. He also agrees to pay the rent. But if he fails to do either, the landlord has only the right to such remedies as the law affords him. The distribution heretofore made is, therefore, confirmed.

      Errors assigned were (1) in making the distribution, as appears in the opinion of the court; (2) to a portion of the charge as set out in the second opinion, reciting same; (3-5) to the specific awards in the distribution, recited in the opinion; (6) in overruling the 4th exception to the report of distribution, which exception is as follows : “ In holding that the brick building did not constitute a part of the leasehold; and in holding that the brick building was personal property as distinguished from the leasehold, prior to its severance, under the. terms of the lease by the parties.”
    (7) In overruling the 3d exception, which exception is as follows: “ In holding there was no evidence showing what part of the iund, represented the value of, and was derived from, the leasehold interest, so called, as distinguished from the brick building on the premises, described in the lease.”

      James W. Piatt and C. O. Dersheimer, for appellants.
    We claim that the landlord’s right of re-entry, for any purpose, as for nonpayment of rent, created by the terms of the lease, gives him a first lien for his rent in arrear, out of the proceeds of a sheriff’s sale of the leasehold: Spangler’s Appeal, 30 Pa. 277 ; Wood’s Appeal, 30 Pa. 274; Miners’ Bank v. Heilner, 47 Pa. 452.

      James E. Frear, for appellees.
    February 16, 1897:
   Opinion by

Beaver, J.,

A lease for years is a chattel real. A building erected on a chattel is itself a chattel: Gaule v. Bilyeau, 25 Pa. 521. If this were not so as a matter of law, the lease of the 11th of December, 1888, between James B. Stark et al. and Benjamin R. Bedford, extended by an' agreement of Pierre Aslield, the assignee of Bedford, for five years from the 11th of December, 1893, to the 11th of December, 1898, made the building which was to be erected upon the leased premises personal property. The act of June 16, 1836 P. L. 755, provides that the amount of rent for which the goods and chattels taken by virtue of an execution and liable to the distress of the landlord shall be preferred shall be limited to the amount due for one year. It was held in Pattison v. McGregor, 9 W. & S. 180, that this act did not apply to the ground rent landlord and for a very obvious reason, for, if the owner of the fee and the owner of the ground rent were both entitled to have a year’s rent reserved as a preference, the very object of the limitation in the act of 1836 above referred to would be defeated. But there is, therefore, no analogy between a ground rent reserved and the present case. It iclaimed by the appellant in tins case that he was entitled to be first paid out of the proceeds of the sheriff’s sale the sum of $120, being the amount of two j'-ears’ rent, and this claim is based upon two considerations: First, because the sheriff returns that he sold the leasehold interest of land with a building thereon for $430. That “ there was no severance of the building from the leasehold. They were essentially one and were sold as one.” And, second, that the clause in the lease under which the lessee, who was the defendant in the execution agreed “ on breach of any condition to quit and give up peaceable possession of the premises to the appellants on ten days’ notice in writing ” was equivalent to the right of the lessor to re-enter and take possession of the premises. Neither of these positions is in our opinion sound. The leasehold interest is the estate which was conveyed by the lessor to the lessee. It does not embrace the house which was erected by the lessee and which, under the lease, he has the right to remove, unless the lessor should at the expiration of the lease exercise the option therein given him and take the building at an appraisement for which the lease provides. The agreement to quit on ten days’ notice conferred no right upon the lessors to re-enter and take possession without more. In case of a breach, they would have been compelled to resort to an action for damages, or, if they desired to secure possession, to obtain it under a landlord and tenant’s proceeding or by ejectment. If, therefore, the cases of Wood’s Appeal, 30 Pa. 274, Spangler’s Appeal, 30 Pa. 277, and Miners’ Bank v. Heilner, 47 Pa. 452, went to the extent claimed by the plaintiffs and were in other respects in point, they would not be applicable here. If it had been the intention of the plaintiffs to claim out of the proceeds of the sale the entire amount of rent due and not the amount allowed under the statutory preference of the act of 1836, they might have raised the question more clearly, when the notice of the rent due was given at the sheriff’s sale, by demanding a severance of the leasehold from the building and having it sold separately. There is no evidence in the record anywhere to show the amount for which the leasehold was sold. The plaintiffs in their argument now endeavor to suppty the lack of evidence upon this subject by calculating the value of the unexpired time of the lease at the annual rental value fixed therein; but there is nothing whatever to show that it sold at that price or that it would have sold at that price, if there had been a severance between the leasehold estate and the other property upon the premises at the time of the sale. This covers all the errors assigned by the plaintiff and, as we can discover nothing erroneous in the distribution made by the trial judge in the court below, the decree of distribution made by him is affirmed.


author: Orlady, J.,

text:
    John Dido v. John Strobel, Appellant.

      Actions — Assumpsit—Proof of conspiracy does not defeat the action.

    An action was properly in assumpsit for money received by defendant from plaintiff on a promise to return same although the plaintiff’s proof established a conspiracy to extort money, in which conspiracy defendant had a part. The evidence, however, being conflicting, the case was properly left to the jury.

      Practice — Pleading—Erroneous plea cured by trial and verdict.

    The action being assumpsit the fact that defendant elected to file an erroneous plea but went to trial and submitted proof in support of a proper one precludes him from questioning, after verdict, the record as he made it.
    Argued Jan. 21, 1897.
    Appeal, No. 22, Jan. T., 1897, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1892, No. 746, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Appeal by defendant from judgment of alderman. Before Lynch, P. J.
    The facts sufficiently appear from the charge of the court, which was as follows:
    This is an action brought by John Dido against Joseph Strobel for the recovery of sixty dollars, which he claims Strobel wrongfully obtained from him on the 11th day of May, 1892, with interest from that time. The contention of the plaintiff is that he was arrested by constable Lyons upon a charge of rape, which is, of course, a heinous crime. He was brought before ’Squire Morrisey, and was there asked how much money he had. [If this man was properly charged with the offense of rape, or any other serious crime of the character, the duty of the justice was to hear the case and accept bail, not to inquire into his financial standing. He said he had sixty dollars in the bank. In charge of the constable he returned to his boardinghouse, got his bank book, and with the constable and Strobel came to the bank where the money was deposited and drew the sixty dollars. Strobel asked him for the money and refused to return it to him. His witness, the constable, states the money was handed to Strobel by the plaintiff in town. Strobel laid it upon, the ’Squire’s table, the constable took ten dollars of it, Strobel took ten dollars of it, and he does not know what became of the balance. If that be true, it is nothing short of an outrage. I do not say it is true, but if it be true it is time these officers took warning that that is not the way cases are to be handled, disposed of or tried. Because a person is ignorant or poor or may not know his rights, is no excuse. I say this for the benefit of the officers who may be engaged in the administration of law. If the case were to rest there, and if you believe the evidence, the plaintiff would be entitled to a verdict for sixty dollars and interest from the 11th of May, 1892.] [1] [The contention of the plaintiff is that this was a scheme into which the ’Squire, Strobel and the constable entered, a conspiracy ; that the charge, to some extent at least, was trumped up, and in order to carry out the charge it was necessary to have these three men, and they divided the money. If you find from the evidence that Strobel got the money under any arrangement of this character, he alone, in this case, is responsible for the whole of it. If it were a conspiracy each one would be liable for the act of the other while engaged in the conspiracy.] [2]
    The charge is answered by the defendant and his witnesses, who say it is not in part or whole true. The contention on the part of Mr. Strobel is that he merely acted as a friend of Dido in this proceeding; that they had been friends before, and at the urgent solication of Dido he paid the money over and settled the case, the character of which he did not exactly understand ; it was something concerning illicit intercourse between Dido and another man’s wife. In other words he simply acted as agent through whom the money passed, he neither received the money, kept it, paid it, acted with the money as if it were his own nor had any claim to it whatever. If this be true, you ought not to find a verdict against him. Which is the true theory of the case? You have had both laid before you, and according as you shall find the facts to be, so you ought to decide. [Did these three men enter into a conspiracy, whether by word or conduct to get Dido’s money, and did Strobel get it? No matter to whom he gave it, or how he disposed of it, unless he returned it to the plaintiff. If you find that to be the case you ought to find a verdict against him.] [3] If you determine he simply acted as a friend to assist Dido out of his trouble you ought not,' under the evidence, render a verdict against him. There are several questions of law in the case, but they do not fairly arise here. For instance, it is true if any person having a knowledge of the actual commission of rape should take money to compound or agree to compound the crime, he is guilty of a felony. It is not claimed on either side that the money was taken by Strobel for such purpose. It is not contended that Strobel took the money for the purpose of compounding a felony nor that the money was given to Strobel for the purpose of settling a misdemeanor. It is simply, as the defendant contends, so as to bring it specifically to your minds, that Strobel took the money and carried it to the ’Squire’s office, more in the nature of an errand boy. That, in substance, is the defendant’s contention. Which is the truth and which has been proven by the weight of credible evidence?
    Defendant’s counsel ask us to charge :
    1. If the jury believe from the evidence the plaintiff drew the money and gave it to the defendant for the purpose of having the case pending before ’Squire Morrisey settled, he cannot-recover.
    We cannot so charge. If plaintiff drew the money for the purpose of making a settlement, and they went to the justice together (if it was a common assault and battery case), and Strobel had gotten the money for that purpose and kept the money, he may be made to pay. If he received the money for the purpose of preventing or interfering with a prosecution in its regular course, a different question would arise.
    2. If the jury believe that the money was paid to the defendant for the purpose of procuring a settlement of a criminal charge against the plaintiff for rape or unlawful intercourse with Berdo’s wife, the plaintiff cannot recover whether defendant paid the money over or not.
    That point is affirmed, although I do not see that the question arises in the case. If you believe there was a charge of rape pending against Dido and Dido gave Strobel $60.00 for the purpose of obstructing the prosecution, and Strobel so understood it, while it would be a crime- on the part of Strobel, it would also be a crime on the part of Dido and he could not recover the money, because they were both engaged in an unlawful undertaking.
    Verdict for plaintiff for $69.30. Defendant appealed.

      Frrors assigned were (1-3) portions of the judge’s charge.

      John McGahren, with him John F. Shea, for appellant. —
    No proof of a fraudulent conspiracy between a defendant and the plaintiff’s debtor will support an action of assumpsit: Hopkins v. Beebe, 26 Pa. 85.
    The action should have been in trespass : 1 Brewster’s Practice, 834; Wildee v. McKee, 111 Pa. 335.
    In an action on the case for conspiracy, evidence of illegal and malicious acts by the defendant against the plaintiff, are insufficient without proof of a conspiracy between the parties to do the acts complained of : Gaunce v. Backhouse, 37 Pa. 350.

      John T. Lenahan, with him James L. Lenahan, for appellee.
    In the trial of the case it was developed that Strobel divided the $60.00 with the constable and the ’squire, andas it is a very common practice among certain officials in our community to trump up feigned charges against ignorant foreigners who are supposed to have some savings, the trial judge very naturally expressed his indignation at this course of conduct, and we believe that the result of this case will go far towards crushing out a system of blackmail that has grown so intolerable in our community as to justify us in saying that there is not a trial judge in Luzerne county for the past ten years whose experience has not furnished him with instances of the grossest oppression practiced by magistrates and constables in their dealings with the ignorant and illiterate population of our community.
    Money obtained through fraud and misrepresentation may be recovered back in an action of assumpsit: Dana v. Kemble, 17 Pickering, 545; Dumond v. Carpenter, 3 Johnson, 183.
    Again, the law is now settled that assumpsit may be maintained for money unlawfully exacted and taken under color of office; Ripley v. Gelston, 9 Johnson, 201; Clinton v. Strong, 9 John. 370.
    There is no merit in the suggestion that because the plea is “ not guilty ” therefore there is no issue; the principle now being that the verdict of a jury cures any irregularity of this character : Cavene v. McMichael, 8 S. & R. 441.
    Our court of last resort has even gone so far as to hold that although the pleadings made no issue they would not reverse the judgment for that reason after the parties had gone to trial on the merits of the cause: Mathias v. Sellers, 86 Pa. 486.
    February 16, 1897:
   Opinion by

Orlady, J.,

The verdict in this case determines the truth of the plaintiff’s demand, that Joseph Strobel received from him $60.00 and promised to return it.

The attending circumstances, through which a justice of the peace, a constable, and the defendant who pretended to be a friendly interpreter for the plaintiff in a proceeding apparently instituted to extort money, rather than apprehend a criminal, discloses a state of facts, found to be true by the verdict, justly described by the learned trial judge as “ nothing short of an outrage.” The fact that the money was divided between the parties in agreed upon proportions, furnishes no reason, under the proof and pleadings to prevent judgment against the one who received and promised to repay. The defendant elected to file an erroneous plea, but went to trial and submitted his proof in support of a proper one, which precludes him from questioning after verdict the record as he made it, and which did not injure him in any way. The action was properly in assumpsit, and while the plaintiff’s proof established the conspiracy of these three officers of the law in securing the money from a foreigner ignorant of our laws and language, under the belief that it was to be used in compounding a felony, the fact found by the jury Avas simply the assumption of the defendant to repay the money he had previously received. The charge of the court fairly submitted the conflicting claims to the jury, and the verdict is fully warranted under the evidence. The judgment is affirmed.


author: Smith, J.,

text:
    Rush Centre Creamery Co. v. R. H. Hillis, Appellant.

      Partnership — Contracts to create are enforceable at lato.

    Contracts lor the creation of a partnership are enforceable at law, and agreements for contributions may be sued for directly on the contract.

      Partnership — Agreement to contribute to enterprise on pro rata basis enforceable.

    Where an agreement is made to contribute to a partnership enterprise and the cost oí the enterprise is not definitely known by its promoters, an agreement is binding although no definite sum was subscribed; there can be no objection to such an agreement, in that the cost was to be borne ratably according to the respective interests of the parties in the project.
    Argued Jan. 19, 1897.
    Appeal, No. 36, Jan. T., 1897, by defendant, from judgment of C. P., Susquehanna Co., Nov. T., 1894, No, 291, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Appeal from justice of the peace. Before Searle, P. J.
    The action was assumpsit to recover the sum of $30.36 from the defendant.
    The facts sufficiently appear from the charge of the court, which is as follows:
    “ The issue which you have been sworn to try is one wherein the Rush Centre Creamery Company is plaintiff arid R. H. Hillis is defendant, and comes into this court by appeal. It appears from the evidence in this case that previous to the year 1893 certain citizens of this county entered into an agreement in writing, which has been read to you, and which I will read again so that you may fully understand it:
    [“We the undersigned citizens of the County of Susquehanna, State of Pennsylvania, unite and" join together for the purpose of building a creamery building and purchasing and putting therein the necessary machinery, for the purpose of a proper and practical Creamery.
    “We have agreed that the name of our association shall be the Rush Centre Creamery Company, and the building to be by us erected for the purpose aforesaid is to be built on the land leased by us from D. J. Hillis, of Rush Township, County and State aforesaid. Now in furtherance of our project of erecting a Creamery, and that the same when erected with the necessary machinery shall become and be and form a paying investment, Ave and each of us whose names are hereunto signed have agreed with all the other persons whose names are hereunto signed that Ave will send to the said Creamery, as soon as the same is ready for business, the milk pure as taken from the cow from the number of cows placed opposite our respective names, and that Ave will continue to furnish to the. said Creamery the milk from the number of cows set opposite our names, for, and during the milk season, for the term of five years.
    “We have agreed that the business of the said Company shall be conducted by three persons to be called trustees, and one trustee to be elected annually each year. We have agreed that the trustees shall be elected on the first Tuesday of December each year, and the persons herein named shall be the trustees for the present term (Blank.)
    “ And as it is necessary for us to raise the sum of (blank) dollars for the purpose of erecting and building, and putting therein the necessary machinery,, besides the amount of subscriptions, we have agreed among ourselves that such sum of money as shall be necessary for the purpose aforesaid shall be borrowed by the said trustees for the year A. D. 1893, as aforesaid, and that they shall give the obligations of the said Rush Centre Creamery Co. for such money as they shall borrow, and we and each of us agree that the money so borrowed shall be paid as follows: In one year the interest and one fifth the money borroAved. In two years the interest on the remainder and one fifth the money borrowed. In three years the interest on the remainder and one fifth the money borrowed. In four years the interest on the remainder and one fifth the money borrowed. In five years the balance due on such obligations shall be paid and satisfied in full. We have agreed and do agree that the trustees of said Rush Centre Creamery Co. shall make an assessment upon each of us and the same shall be deducted from the amount due us for milk each year, during the said term of five years sufficient in amount to pay such obligations as above mentioned in the term of five years Avith interest as aforesaid. The assessment shall be made and the money deducted, from the amount due us for milk upon the following basis, viz : In exact proportion to the amount of milk furnished by each of us to the said company, and when the said Creamery building and machinery shall be paid for, that we shall become the owners of the same in proportion each shall have contributed toward the payment of the same in the manner aforesaid. Tire trustees appointed as aforesaid and the one to be elected annually are to be taken from our number.
    “In witness whereof, we have hereunto set our hands and seals, the 1st day of December, 1892.”] [1]
    To that paper are signed the names of some twenty-odd men, among them the name of It. H. Hillis, the defendant. It is claimed by the plaintiff that in pursuance of this agreement between the parties, at the time mentioned for the election of trustees, a majority of the subscribers met and elected three trustees. [That those trustees in accordance with the terms of this agreement proceeded to borrow the money necessary to erect the building and put in it the machinery for the purpose designated in this agreement. That in doing this they borrowed the sum of 12,400, and that they expended the whole of it for the purposes indicated in this agreement, and that as soon as completed the business contemplated by this agreement was carried on.] [7] I would further state that in the signatures to this agreement, opposite the name of each man is placed the number of cows that he agreed to furnish the milk from to this creamery by the terms that I have read to you, and that the defendant here placed opposite his name ten cows. It is further claimed on the part of the plaintiff that the defendant, R. H. Hillis, never furnished any milk from any cows under this agreement as he had undertaken to do, or any money or anything else, and that the time having elapsed within which by the terms of this agreement the first payment was to be made upon the money borrowed, that the creamery company paid the money, and they have brought this suit to recover from the defendant his proportionate share of the amount due and paid by the company. There has been no evidence submitted on the part of the defendant, and I understand that there is no controversy as to the facts as I have stated to you from the evidence. But you will not take my statement. You will take the evidence as it has been submitted to you in this case, and determine whether these facts have been established and whether the patrons of this creamery company, or rather the parties who signed this agreement, have complied with the terms of the agreement, elected trustees, borrowed the money, expended it as designated by this agreement and, the time having elapsed for the payment of a portion of the money, whether they have paid it, and whether according to the terms of this agreement each of the signers to this has become responsible for the amount of his proportionate share.
    On the part of the defense it is claimed that under this agreement the defendant is not liable because there is no consideration for it and that is not such an agreement as binds him, and that he was not notified of the meeting of the trustees, and has received no notice and performed no act or deed making him a party to this agreement and also that the agreement itself, by reason of inherent defects, is not enforceable.
    [Now, as a matter of law, it becomes necessary for us to construe this agreement and under it we construe it that when this agreement was signed it was an agreement of these parties with each other, and their mutual agreements constituted a sufficient consideration to support the promises of the defendant, and by it he obligated himself to bear his proportionate share of the expense attending the erection of a creamery, and when the trustees elected as agreed, or trustees agreed upon by the parties, or elected at a time specified, went on iir good faith and borrowed the money and erected the creamery, he was responsible 'for his proportionate share of it, according to the terms of that agreement. He could not in conjunction with his fellow-citizens agree that they together should expend a certain sum of money, and after they had done it throw upon them the burden of paying his proportionate share of the expense attending the same.] [8]
    But it is contended on the part of the defense that the method of obtaining his share of this expense is set forth in the instrument which he signed, and that that is to be measured by an exact proportion of the amount of the milk that he actually furnishes in proportion to rvliat the other subscribers furnish. That is the agreement between the parties, and if he had furnished the milk to the creamery as he had agreed to do, in the absence of any testimony showing that amount, they could not recover.

      [But when he declined to furnish his milk, by his own act he places it beyond the power of the company to make the assessment of the division in conformity with the agreement of the parties, and by his own refusal to perform his agreement he cannot avoid the responsibility of the agreement itself. And he is responsible to this company, under the title of the association which he had agreed to be the title of it in the articles that he signed — Rush Centre Creamery Company — in a suit by them for his proportionate share under that agreement of the amount expended by them in building that creamery and putting in their machinery.] [9]
    When this suit was brought, under the terms of this agreement, there was only due and payable one assessment, and that would be one fifth of the total amount borrowed, with the interest upon the whole amount. The question for you to ascertain in rendering a verdict in this case is, what is that share ? You are to take the evidence in this case and ascertain it from all the evidence. If he has destroyed by his own act, or by his refusal to act, the method of ascertainment prescribed by the agreement, then the jury must ascertain it by the next best method of ascertainment. [That the method under the terms of the agreement is the only exact method, as claimed by the defendant, is true, but by not furnishing the milk, he himself has destroyed the exact method. Therefore you are at liberty to take the next best means of ascertaining, or the company are at liberty in making the assessment to take the next best means of ascertaining, his proportionate share of that sum', ’find it is for that purpose that this clause is placed in the agreement. You have, by the agreement offered in evidence, the number of cows which each man was to furnish, and you may ascertain, if you are able to, from the number of cows they were to furnish under the agreement his proportionate share of the amount of money borrowed and, his proportionate share of the money due or paid by the company at the time of commencement of this suit, with interest from the time of the commencement of the action.] [10]
    Defendant’s counsel objects to the plaintiff sending out any statement with the jury. Objection overruled, and the plaintiff’s counsel permitted to send out with the jury a Statement as appears by the files in this case. Defendant excepts. Bill sealed for defendant.

      By the Court: This statement which is sent out by the plaintiff: is a statement of his claim, but it does not control you in making up your verdict. It is only what the plaintiff claims, but you must find the amount due irrespective of the statement of the plaintiff.
    Verdict for plaintiff for $30.36. Defendant appealed.

      Errors assigned were, (1) in admitting the agreement in evidence, reciting same as set out in the charge of the court; (2) in admitting evidence of the loan of $2,400; (3) in admitting minutes of the Rush Centre Creamery Co. in evidence; (4) in admitting evidence as to who was the acting trustee for the year; (5) in admitting evidence as to the proportion of the subscribers in the contract present at the meeting at which the organization was perfected; (6) in permitting the following question to be asked and answered: “Was there an assessment made against the members furnishing milk for first year?” (7-10) portions of the judge’s charge, reciting same; (11) the charge as a whole is erroneous, as the case should have been taken from the consideration of the jury; (12) in sending out •with the jury a statement of plaintiff’s claim, under objection ; (13) in refusing to enter a nonsuit; (14) in entering judgment in favor of the plaintiff and against the defendant.

      T. J. Davies for appellant.
    The form of action in assumpsit is not the proper remedy; it must be bill in equity or an action in account render: Price v. Spencer, 7 Phila. 179; Riley v. Eigo, 1 Pa. Superior Ct. 139; Murray v. Herrick, 171 Pa. 21.
    In all the cases where recovery has been permitted to be .made in assumpsit the subscribers have promised to pay a certain and positive sum of money at a certain given time, and the .amount to be raised has been definitely expressed. Those material elements are lacking in the case at bar.

      A. B. Smith of McCollum & Smith for appellee.
    February 16, 1897:
   Opinion by

Smith, J.,

The principal matters for determination in this case were qlxéstions of fact. These have been found in favor of the •plaintiff, and in view of the evidence a different conclusion 'could not well have been reached. It was shown, without contradiction, that the plaintiff and twenty-eight of his neighbors made a written agreement to establish and conduct a creamery, and to borrow the money necessary to put it in operation; each party to contribute the milk of a specified number of cows, and to incur a liability for the loan, and acquire an interest in the property, proportioned to the quantity of milk furnished. Pursuant to this agreement a loan was made, and the creamery built. This action is brought to recover the proportion of this loan due at the time of its commencement for which, it is contended, the defendant became responsible under the agreement. The defense set up is purely technical. There is no denial that the indebtedness was incurred in good faith by the company and the money honestly and economically expended for the purposes set out in the agreement. The defendant neither alleges nor intimates that any of his cosubscribers had acted fraudulently or unfairly toward him. He never sought to withdraw from the association or notified the trustees or any of his associates in the enterprise that he would.not live up to his agreement. He remained silent on this vital point, and allowed contracts to be made and liabilities incurred, in good faith, upon the credit of his written promise. He now seeks to avoid liability, on the ground that he was not notified of the meetings of the company or the appointment of the trustees. Curiously enough, he adds as a further reason the fact that he also violated his agreement by failing to furnish milk as he had agreed to do; thus pleading one default as justification for another. It does not appear that any person was authorized to call or give notice of the meetings or that anything was done to his prejudice. It is not alleged in his behalf that he. would have opposed what was done, either in selecting trustees, in effecting the loan, or in constructing- the plant; nor is it alleged that he was not permitted to attend the meetings or had not opportm nity to do so equally with his associates. No written notice was sent to any one; the secretary “ just sent word around; ” and whether the defendant received word was not shown. He does not deny that he received word or had knowledge of the time of meeting. But whether-he did or not is not material. The agreement fixed the time for the first meeting, and it was his duty to take notice of this. Had he done so he would probably have learned of the time and place fixed for subsequent meetings. Under these circumstances his defense on legal technicalities has little to commend it.

The principal contention on behalf of the appellant here is that the written agreement created a partnership between the parties, and that, as transactions between copartners are not the subject of suit in assumpsit until after settlement of the partnership accounts, this action cannot be maintained. If the subject-matter in suit grew out of obligations incurred in a prosecution of the partnership business, the objection would be well taken; for it is familiar law that before one partner can sue another in assumpsit for matters growing out of the partnership business, the partnership accounts must be settled. But this rule is confined to transactions in the business of the partnership or growing out of its accounts, and has no application to matters distinct from its business and accounts, though connected with the partnership. Thus, contracts for the creation of a partnership are enforceable at law, and agreements for contributions may be sued for directly on the contract. So an action will lie for the breach of an agreement to form a partnership, or for the exclusion of a partner from participation in the copartnership business : 17 Am. & Eng. Ency., 1262. The distinction would seem to be this, that an action will lie upon the partnership agreement, for the violation of all its stipulations for which damages can be assessed, without requiring an accounting of the partnership business proper or involving its transactions. In our own state we have cases where actions were brought directly upon the articles, to recover damages for the wrongful dissolution of the partnership : Hunter v. Land, 81* Pa. 296, as well as for acts wrongfully embarrassing its operations, in violation of a covenant in the articles: Addams v. Tutton, 39 Pa. 447. In the case of Canfield v. Johnson, 144 Pa. 61, a contract was entered into whereby it was agreed that the parties should accept a contract for the erection of a soldiers’ monument, the work to be done on shares, and the profits to be divided equally between them. The defendants secured the contract,, and, with the exception of furnishing the designs and photographs, the plaintiffs did nothing toward the construction of the monument, the defendants in disregard of the agreement having sublet to others the part of the work which was to have been done by the plaintiffs. In an action of assumpsit brought by the plaintiffs for the recovery of one half of the profits realized on the contract, the court below directed a verdict for the defendants on the ground that there could be no recovery in that form of action. In reversing the ease the Supreme Court, speaking through Mr. Justice Green, said: “ We do not agree with the learned court below in holding that there could be no recovery in the action of assumpsit. The allegations and proofs of the plaintiffs were that the defendants had not carried out the contract with them. They had not engaged in the execution of a contract of partnership, or any contract for their mutual advantage or profit. On the contrary, they had proceeded to have the monument and pedestal built and placed exclusively .on their own account, and for their own benefit and advantage, and had thus violated' the contract which the plaintiffs claimed and gave evidence to prove. In other words, they had broken the contract of part-' •nership or joint interest, and therefore no such contract was performed or executed. In such circumstances, the injury or breach which gives a legal remedy is a violation of the contract of partnership, and not its execution and a consequent partnership liability. Hence a partnership bill which lies between persons who actually are partners, and for the settlement of the partnership accounts, is not the proper remedy, simply because, although the defendants agreed to become partners with the plaintiffs in this transaction, in point of fact they did not, and hence the relation did not exist. The action, therefore, must be regarded as an action to recover damages for the breach of a contract to become partners, and for that purpose thdS proper remedy would be an action of assumpsit on the undertaking. But, of course, while all this is true, the measure of damages would be in accordance with the terms of the contract, to wit, one half of the profits which the defendants did make, or ought to have made, in doing the work in question. Hence it was quite legitimate for the plaintiffs to claim in the narr and to prove on the trial, that they were entitled to have the one half of those profits from the defendants, and to give evidence as to what those profits were of should have been. Moreover, as this was a single transaction, without any-complicated accounts to adjust, we would incline to hold, were it necessary to do so, that the case came properly within the. somewhat numerous decisions of this court, in which it is held that, where the transaction is single, without complicated accounts, and there are no debts to be adjusted, a bill in equity is not necessary for the settlement of the accounts, but an action of assumpsit will lie. Instances of this are to be found in Wright v. Cumpsty, 41 Pa. 103; Cleveland v. Farrar, 4 Brewst. 27; Galbreath v. Moore, 2 W. 86; Meason v. Kaine, 63 Pa. 336. It is not necessary to rest the decision of the present case upon this principle, however, as we regard the proceedings as an action to recover damages for the breach of a contract to enter into a partnership or joint relation, and not as á proceeding to settle partnership accounts.” Under the authority of this case and the principles of law stated, the right to maintain the present action cannot be doubted.

The remaining question to be noticed is whether the agreement can be enforced. It is contended that because no specific sum is subscribed or promised by the parties, it is not binding; that there being no obligation for a specific contribution, the contract is too indefinite to create any liability. We are referred to no authorities in support of this view. In all the cases cited, it is true, a definite sum was subscribed, yet it does not follow that an agreement to ascertain the amount of the subscriptions upon a certain basis would not be equally binding. When the cost of a new enterprise is not definitely known by its promoters, there can be no objection to an agreement to bear it ratably, according to their respective interests in the project; and that was what was done in the present case. The case of Troy Iron & Nail Co. v. Corning, 45 Barb. 231, resembles the one before us in its leading features. There, by articles of association, the associates severally bound themselves to pay a ratable proportion, (based upon interest and benefit) of all expenditures made or to be made in the promotion of the work undertaken, when assessed and apportioned among them. This was held to be a sufficiently definite specification of their respective liabilities ; and the liability to pay the assessments was held to arise on the promise by each to the other, which could be enforced hi an action in the names of those injured by the default. In that case it was also held that those who derived little or no benefit from the project could not relieve themselves from liability by refusing to participate in the business of the association. It has also been held, that where partners agree to contribute capital, from time to time, to meet expenses as occasion might require, one who contributed the whole might recover from his copartners what they should have paid: Brown v. Tapscott, 6 M. & W. 119; Lindley on Partnership, 564. It is clear, on principle and authority, that the agreement in the present case was sufficient to bind the parties after its purposes were accomplished according to its provisions.

There is no just cause for complaint against the rulings or charge of the court. The learned judge tried the case fairly and correctly.

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