author: Rice, P. J.,

text:
    Keim, Appellant, v. City of Reading.

      Statutes — Common law — Repeal—Evidence—Act of May 23, 1887, P. L. 158.
    Statutes are not presumed to make any change in the rules and principles of the common law beyond what is expressed in their provision, or fairly implied in them, in order to give them full operation; rules of the common law are not to be changed by a doubtful implication.
    The rule of the common law that where a witness in a former judicial proceeding is dead, or where the presence of such witness cannot be procured at a subsequent judicial proceeding, and no notes of his former testimony exist, such testimony may be proven orally by a person present at the previous trial, is in no way affected or changed by the ninth section of the Evidence Act of May 23, 1887, P. L. 158.
    Where a witness before road jurors dies beforé the case is tried on an appeal from an award of the viewers, the plaintiff may prove by his own testimony, the testimony or the substance of the testimony, given by the deceased witness before the jurors.
    Road law — Condemnation proceedings — Damages—Eminent domain— Municipalities — Expert witness — Evidence.
    Where there is a stone quarry upon land condemned by a city for park and boulevard purposes, evidence of the quality of the stone is pertinent in ascertaining the damages for the land taken.
    In such a case where a witness testifies that he had been in the business of buying and selling stone for building purposes for twenty years, that he had hauled stone from the quarry in question several times, and that he had examined the stone time and time again, he is legally competent to testify to the quality of the stone, having particular reference to its hardness, and to its capability of being easily worked into shape for building purposes.
    Argued Nov. 16, 1906.
    Appeal, No. 188, Oct. T., 1906, by plaintiff, from judgment of G. P. Berks Co., April T., 1899, No. 66, on verdict for plaintiff in case of DeB. Randolph Keim v. City of Reading.
    Before Rice, P. J., Porter, Henderson, Morrison, Oready and Beaver, JJ.
    Reversed.
    Appeal from award of jury of view.
    At the trial the following offer was made :
    Mr. Hiester: The plaintiff having shown that William M. Fulton testified at a former trial of this case and that the said witness had died and that there are no notes of his examination, now proposes to give the substance of Mr. Fulton’s testimony so far as it may be relevant to this case — the facts detailed by said witness upon examination by counsel for plaintiff and upon cross-examination by counsel for the city of Reading being, that the witness for many years past had been extensively engaged in the business of quarrying stone at the west end of the Penn street bridge, opposite the city of Reading, and had much experience in the operation of quarries and the value of stone similar to that taken from plaintiff’s quarry, that the quarries of the witness and of the plaintiff were the only two quarries advantageously located for supplying stone to the city of Reading, that the witness was well acquainted with the plaintiff’s quarry, that said quarry produced red stone, which was well adapted and readily and profitably marketable for cellar purposes, and white stone, which was more valuable and well adapted and readily and profitably marketable for facing fronts; that the said quarry could have been further and profitably operated to a very great extent except for the appropriation by the city, and was a valuable part of the plaintiff’s property, covering about three acres of the plaintiff’s land, and that the appropriation by the city rendered it impossible to proceed further with the operations of the quarry in a safe and profitable manner, but practically ruined and destroyed the quarry.
    Mr. Rourke: This offer is objected to as incompetent and inadmissible.
    The Court: The objection is sustained; bill sealed for plaintiff. [1]
    Henry Knoll, a witness for defendant, was asked these questions :
    “Q. Where do you live ? A. 713 Birch street. Q. What business are you engaged in? A. Iam hauling stones. Q. How long have you been engaged in that line of business ? A. Twenty years. Q. Will you state whether or not you are acquainted with the Keim property and With the quarry thereon ? A. Yes, sir, I was therQ already. Q. How often have you been .there? A. A good many times ; I hauled some stones away there already. Q. When did you last see the quarry? A. I wasn’t in the quarry for — that I didn’t work, for a couple of years. -Q. Couple of years? A. Yes, sir. Q. Before that you worked at this very quarry ? A. Yes, sir, I hauled stones away. Q. And for what length of time? A. Well, I didn’t haul so many away." Q. What time did it go over — how much time were you there ? A. When they had a pile of stone there I hauled them away until they were all. Q. Did you ever make any examination of the stone, its quality ? A. Well, there ain’t any such nice stones ; the masons don’t like to work them. Q. You made an examination of the stone time and again, did you not? A. Yes, sir. Q. Now, what is the kind of stone that you find there ? ”
    Mr. Hiester: We object; he is not an expert on this subject.
    “ Q. Do you know anything about stone, or about the quality of stone? A. I ought to know; I am long enough in the business. Q. How long have you been in that business? A. Twenty years. Q. Then you do know about the quality of stone? A. Yes, sir. Q. And the uses to which they can be put? A. Yes, sir. Q. Tell us what the quality of these stones is and to what use they can be put ? ”
    Mr. Hiester: Objected to, that the witness has not been shown to be an expert on stones.
    “ Q. You deal in stones and have during these twenty years? A. Yes, sir. Q. All kinds of stones ? A. Yes, sir. Q. Buy and sell stones for building purposes? A. Yes, sir; that is what I am hauling. Q. How long have you been doing that ? A. Twenty years. Q. What was the extent of your business during these twenty years in that line? A. Well, hauling stones, that is the most business I have. Q. That was the only business that you have pursued in twenty years, isn’t it ? A. Yes,sir. Q. That is right, isn’t it? A. Yes, sir. Q. You have dealt in stone and nothing else during all these years ? A. No, sir. Once in awhile I dug a cellar. Q. Now, tell us what the condition or quality of these stones in the Keim quarry is or was in 1896 ? ”
    Mr. Hiester: We object, that the witness has not been shown to be an expert in the kind of stones quarried from this quarry.
    The Court: The witness having testified that he has for twenty years been engaged in the business of buying and selling stones for building purposes, and that he hauled stone from this very quarry and was acquainted with these stones, I think he may be permitted to state what the quality of the stone is; bill sealed for plaintiff. [2]

      February 25, 1907:
    Verdict and judgment for plaintiff for $725.70. Plaintiff appealed. *

      Errors assigned were (1, 2) ruling on evidence, quoting the bill of exceptions.

      O. H. RvM and Isaac Hiester, with them A. K. Stauffer, for appellant.
    — The Act of Assembly of May 23, 1887, P. L. 158, entitled, “An act relating to the competency of witnesses and to the rules of evidence in civil and criminal cases, revising, declaring and consolidating some of the existing acts and rules of law upon these subjects and also extending some of the provisions of the same,” does not abrogate the rule of the common law, and render incompetent the testimony offered by the plaintiff at the trial of this case : Erie v. Bootz, 72 Pa. 196.
    Defendant’s witness, Henry Knoll, was not competent to testify as an expert, as to the quality of the deposit of stone upon plaintiff’s premises: Hope v. Phila. & Western R. R. Co., 211 Pa. 401.

      William J. Rourke, city solicitor, for appellee.
   Opinion by

Rice, P. J.,

This case came into the court below by appeal from the report of viewers appointed to assess the damages sustained by the plaintiff by the city’s appropriation of his land for park and boulevard purposes. The first assignment of error relates to the exclusion of plaintiff’s offer to prove by his own testimony the testimony, or the substance of the testimony, of William M. Fulton, who testified before the viewers — said Fulton having died between the hearing and the trial of the case in the court below, and no notes of his testimony having been taken. The question turns upon the effect to be given to the ninth section of the Act of May 23, 1887, P. L. 158, upon the common-law rule relating to such testimony. The section reads as follows: “ Whenever any person has been examined as a witness in any civil proceeding before any tribunal of this commonwealth or conducted by virtue of its order or direction, if such witness afterwards die, or be out of the jurisdiction so that he cannot be. effectively served with a subpoena, or if he cannot be found, or if he become incompetent to testify for any legally sufficient reason, and if the party, against whom notes of the testimony of such witness are offered, had actual or constructive notice of the examination and an opportunity to be present and examine or cross-examine, properly proven notes of the examination of such witness shall be competent evidence in any civil issue which may exist at the time of his examination, or which may be afterwards formed between the same parties and involving the same subject-matter as that upon which such witness was so examined; but for the purpose of contradicting a witness, the testimony given by him in another, a former proceeding, may be orally proved.”

The chief reasons for the exclusion of hearsay testimony are the want of the sanction of an oath, and of any opportunity to cross-examine the witness. But where testimony was given under oath, in a judicial proceeding, in which the adverse litigant had the power to cross-examine, the testimony so given was admissible at common law, after the decease of the witness, in a subsequent trial of the same issue, or of another issue between the same parties involving the same subject-matter. See 1 Greenleaf’s Evidence, sec. 163; 1 Taylor on Evidence (8th ed.), sec. 434; 1 Wharton on Evidence, sec. 177. The rule was not restricted to cases where the witness had died, but included other cases, not necessary to be enumerated here, in which, otherwise, the witness’s knowledge of the facts would not be available. See Walbridge v. Knipper, 96 Pa. 48, and cases therein cited. Apart from formal depositions, there were two recognized modes whereby the testimony of the witness was reproduced: First, by properly proven notes of his testimony; secondly, by the testimony of a person who would swear from his memory to its having been given. For a time in England the rule was that such person must be required to repeat the precise words of the witness, and that testimony merely to the effect of them was inadmissible. There is also an early Pennsylvania case in which this view seems to have been entertained by Duncan, J., who said : “ In giving evidence of what a witness swore at a former trial, great strictness is required as to the very words uttered by him.” But after the cases of Cornell v. Green, 10 S. & R. 14, and Wolf v. Wyeth, 11 S. & R. 149, were decided, and prior to the evidence act of 1887, the law was well settled in Pennsylvania, and in all but two or three jurisdictions of this country, that if the witness was able to state the substance of what was sworn to on the particular subject at the former trial, it was sufficient: 1 Greenleaf's Evidence, sec. 165; 16 Cyc. of Law and Procedure, 1102; Chess v. Chess, 17 S. & R. 409; Moore v. Pearson, 6 W. & S. 51; Rhine v. Robinson, 27 Pa. 30 ; Brown v. Commonwealth, 73 Pa. 321; Phila. & Reading R. R. Co. v. Spearen, 47 Pa. 300. In some'of these cases, it is true, there were 'notes of the substance of the testimony, but they all recognize the rule as we have stated it. In Walbridge v. Knipper, 96 Pa. 48, decided in 1880, after reargument, the trial court rejected an offer to prove what the plaintiff had testified before arbitrators — he having become incompetent since by reason of the death of the defendant — because the testimony was not reduced to writing, and the defendant was not present. This was held to be error, and as to the mode of reproducing the testimony of such witnesses it was held, that it may be done by introducing their depositions, properly taken and authenticated, or notes of their testimony, the accuracy of which has been shown, as in Pratt v. Patterson, 81 Pa. 114, or when not perpetuated by depositions or preserved in notes of trial, “by proving what they testified to on the former trial, by some person who heard them testify and remembers their testimony or the substance thereof.” The latest civil case iii which the subject is particularly discussed is Hepler v. Mt. Carmel Savings Bk., 97 Pa. 420, decided in 1881, wherein after reviewing the authorities Justice Gordon stated the rule as follows: “ From this I take the rule to be, where the witness on. the stand cannot recollect the very words of the deceased witness, he may state in his own language the facts as detailed by that witness, as they were impressed on his mind at the time; and this applies as well to the cross-examination as to the examination in chief. All that is required is that .the recollection of the witness he reasonably clear as to the fact testified to, and how, if at all, such testimony was affected by the cross-examination. As a rule, this is all that can be required of ordinary witnesses, and the adoption of a greater degree of strictness would result in the total exclusion of such evidence, for the exception is rare where a conscientious witness will undertake to do more than this.”

It is thus seen that from Mayor of Doncaster v. Day, 3 Taunt. 262, in which Lord Mansfield held that “ the former evidence may he proved by any person who will swear from his memory to its having been given,” down to the latest decision of our Supreme Court prior to the act of 1887, it was uniformly held, the other conditions being present for the admission of the testimony of a witness given on a former trial, .that such testimony could be orally proved; and while there was some divergence of opinion as to the necessity of- giving the very words of the witness, no rule of evidence was more firmly established or more universally recognized. The reason for the rule itself, and for the Pennsylvania construction of it, was iiecessity. We quote from the opinion of Judge Gibson in Cornell v. Green, 10 S. & R. 14: “ The truth is that evidence of what a deceased witness said, being inferior in its nature to a personal examination before the jury, is admissible only from necessity and on the ground that better evidence does not remain behind, the jury being left to form their own judgment of the accuracy of the narration. I cannot, therefore, see why the same necessity which opens the way for secondary evidence of the very words of a deceased witness should not open the way also for the substance of his testimony when his very words cannot be recollected, or discover the policy of a rule which should shut out the little light that is left, when it is all that is left, merely because it may not be sufficient to remove everything like obscurity.” The rule was a highly useful one, a2id when it is remembered that Í2r many judicial proceedings, such as trials before justices of the peace, before arbitrators and viewers in such a proceeding as this, the testimony is not required to be, and is not customarily, reduced to writing, it- will be seen that the same necessity for permitting it to be orally proved still exists, for, it is to be observed, the act of 1887 provides no substitute for this mode of reproducing the testimony, either where no notes of evidence were taken or where they have been lost or destroyed. The next point to be noticed is, that the act of 1887, while particularly mentioning the statutes that were superseded or repealed, does not in express words abrogate this ancient, firmly established and useful rule of the common law, contains no provision which is repugnant to it, and, as we have suggested, provides no substitute for it. Statutes are not presumed to make any change in the rules and principles of the common law beyond what is expressed in their provisions, or fairly implied in them, in order to give them full operation ; rules of the common law are not to be changed by doubtful implication : Endlich on Interpretation of Statutes, sec. 127. Indeed, the rule.has been more broadly stated as follows : “ In all doubtful matters and where the expression is in general terms, statutes are to receive such construction as may be agreeable to the rules of the common law in cases of that nature, for statutes are not presumed to make any alteration in the common law farther or otherwise than the act expressly declares; therefore, in all general matters, the law presumes the act did not intend to make any alteration, for if the legislature had had that, design they would have , expressed it in theatít:” Pettit v. Fretz’s Executor, 33 Pa. 118. And the view has been expressed that an intention on the part of the legislature to alter the statute law is sometimes presumed upon much slighter grounds than would support any such inference in the case of the common law: Wilberforce Stat. L. 21, cited in above section of Judge Endlich’s work. See also the remarks of the late Justice Dean to the same effect in Smith v. Altoona & Phillipsburg, etc., R. R. Co., 182 Pa. 139. We are referred to the case of Johnston’s Est., 33 Pa. 511, where it was held that a subsequent statute, revising the whole subject-matter of a former one, and evidently intended as a substitute for it, although it contains no express words to that effect, must, on the principles of law, as well as in reason and common sense, operate to repeal the former. It is worthy of notice that in this very case Justice Woodward cited Townsend’s Case, Plowd. Com. 111, in which it was said: “ But if a thing is at common law, a statute cannot restrain it unless it he in negative words.” The purpose of the legislature, as exhibited by the title as well as the contents of the evidence act, was to declare and revise “ some of the rules of law ” relating to the subject of evidence, not all of them, and this would be literally fulfilled by construing the section to apply to cases where the testimony of the witness had been preserved by notes of evidence. When we go beyond that, and speculate as to whether the legislature intended more, we enter the domain of doubt. We are not to be understood as saying that a statute which undertakes to revise and cover the whole subject-matter may not, by implication, abrogate every rule of the common law upon the same' subject; but the foregoing citations, and many others that may be made, show that if there be no negative words and no express declaration that the act is intended to be a complete and exclusive rule of law upon the general subject that it touches at any point,, the implication must be very clear to warrant the courts in giving it that effect. It is not to be denied that the proviso that “ for the purpose of contradicting a witness the testimony given by him in another, a former proceeding, may be orally proved,” furnishes some ground for plausible argument that this was intended to be the only instance. The argument would be conclusive if sec. 8 were a new law, making evidence as to the testimony of witnesses in former proceedings competent which was not competent at common law. But it does not purport to be a new law upon that subject; that is to say, it is not a rule out of the course of the common law, but as far as it goes is simply declaratory of the common law. There is ground for speculation as to all the reasons for introducing the proviso, but the inference therefrom of an intent to abrogate this common-law rule is not nearly so strong as the inference of an intent not to' do so to be drawn from the omission to declare, as could have been done in two or three words, that the mode specifically mentioned is exclusive of all others. As has been said of the act of 1869, its predecessor, the act of 1887 is an enabling, and, generally speaking, not a disqualifying act. Having regard to its general purpose, and to all of the considerations which we have suggested, we are unable to conclude that there is a necessary and unavoidable implication of an intent to shut out oral proof of testimony of this kind, where there is no better mode of proving it.

We are not aware of any civil case in which this question has been passed upon, but it will be noticed that the same method of construction which would shut out this testimony, if applied to the third section of the act would prevent the introduction on the trial of a criminal case of the testimony of a deceased witness given on the preliminary hearing before a magistrate. Prior to the act of 1887 this was competent, Brown v. Commonwealth, 73 Pa. 321, and since 'that act it has been decided that the testimony of a witness given at a preliminary hearing, he having died in the meantime, could be proved at the trial of the case : Commonwealth v. Keck, 148 Pa. 639. The act makes no provision for such a case. This tends to show that the act of 1887 is not to be construed as furnishing a complete and exclusive rule relative to proof of the former testimony of witnesses. The case of Commonwealth v. Lenousky, 206 Pa. 277, may also be referred to, although it would be unfair to cite it as a conclusive decision of the question.

At common law the testimony could be reproduced by the testimony of any competent witness ; therefore when parties were made competent witnesses they became legally competent for this purpose as well as for any other. The plaintiff testified that he was present at the hearing and heard the witness testify, and the offer was to prove the substance of the witness’s testimony upon his cross-ekamination as well as upon his examination in chief. Prima facie the plaintiff was qualified to give the testimony offered; if the defendant’s counsel desired to test his memory further, or to inquire more particularly whether he heard the entire testimony of the deceased witness, he could have done so. Not having availed himself of this privilege, it would be unfair on this appeal to hold that the offer was properly rejected upon the ground that the plaintiff did not say in so many words that he heard the entire testimony. The fair inference from what he said is that he did hear it. It is suggested further that the plaintiff was not harmed by the rejection of the offer, because he got the benefit of it in his own testimony-as to the value of the property. A careful examination of his testimony fails to convince us that this position is tenable. Upon a full view of the entire subject we are constrained to hold that there was error in the rejection of the offer.

There being a stone quarry upon the land evidence of the quality of the stone was pertinent. Henry Knoll testified that he had been in the business of buying and selling stone for building purposes for twenty years, that he had hauled stone from this quarry for others several times, and that he had examined the stone time and time again. Under this showing he was legally competent to testify to the quality of the stone, having particular reference to its hardness and to its capability of being easily worked into shape for building purposes. Therefore the second assignment is not sustained.

Judgment reversed and venire facias de novo awarded.


source: Caselaw Access Project

license: Public Domain

text:
    Kennedy v. Pennsylvania Railroad Company, Appellant.

      Negligence — Railroad—Station—Passenger—Disorderly conduct.

    In an action by a woman against a railroad company to recover damages for personal injuries, a verdict and judgment for the plaintiff will be sustained where the evidence tended to show that as the plaintiff, an intending passenger, was crossing the corridor from the waiting room to the train shed of a large terminal station, she wás surrounded and thrown down by a rush of several hundred students who were attending the departure of a football team, that the crowd had been in the corridor for nearly half an hour, had been behaving in a boisterous and disorderly manner, and that after the plaintiff had fallen they formed a ring and danced around her, inflicting further injuries as she lay prostrate.
    In such a case it is proper .for the court to charge that: “If for a considerable time prior to the accident there was a large crowd of students and followers in the station, indulging in such boisterous conduct as manifestly threatened personal injury to passengers, and the defendant could, by the exercise of due vigilance, have ejected this mob or reduced it to order and control, before the plaintiff was injured, then its failure to do so renders it answerable, to the plaintiff if she was subsequently injured by a rush of this crowd.”
    Argued Nov. 19, 1906.
    Appeal, No. 56, Oct. T., 1905, by defendant, from judgment of O. P. Chester Co., Jan. T., 1905, No. 46, on verdict for plaintiff in case of Ellen M. Kennedy v. The Pennsylvania Railroad Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Butler, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $825. Defendant appealed.

      February 25, 1907 :

      Errors assigned among others were (4) in refusing binding instructions for defendant; and (5,6) portions of charge quoted in the opinion of the Superior Court.

      John J. Pinkerton, for appellant.
    — By the testimony of the plaintiff herself it appears that she was the victim of an act of rudeness upon the part of a stranger, and for the consequences of which the defendant cannot be held responsible: Ellinger v. P. W. & B. R. R. Co., 153 Pa. 213; Pittsburg, etc., R. R. Co. v. Pillow, 76 Pa. 510.
    The conduct of the students at the station was horseplay, noise, fun and rollicking nonsense, and did not amount to a breach of the peace of which the officers of the law could have taken cognizance, and the railroad company is not liable in damages for their appearance at the Broad street station.
    The uncontradieted evidence shows that there was never at any time any violence displayed, nor was there any breach of the peace upon the part of the students in the station.
    A common carrier is not bound to protect its passengers from rudeness or bad manners on the part of strangers or other passengers, unless such conduct amounts to a breach of the peace: Ellinger v. P., W. & B. R. R. Co., 153 Pa. 213; Graeff v. P. & R. R. R. Co., 161 Pa. 230.

      Granville L. Rettew, with him J. Frank E. Eause, for appellee.
    — .It is the duty of a carrier of passengers to transport its passengers safely to, and place them safely at the point of destination, and should any injury result to the passengers through the negligence of the carrier, the iatter is prima facie responsible: Penna. Railroad Co. v. Aspell, 23 Pa. 147; Pittsburg, etc., Ry. Co. v. Hinds, 53 Pa. 512; Meer v. Penna. R. R. Co., 64 Pa. 225; Ellinger v. P., W. &. B. R. R. Co., 153 Pa. 213.
   Opinion by

Rice, P. J.,

As the assignments of error simply raise the question whether under the evidence the court should have given binding instructions for the defendant, it is not incumbent on us to go farther than to determine whether there was evidence warranting the submission of the case to the jury. Therefore what we shall say with regard to the evidence must not be understood as implying a finding of the facts but simply as a statement of facts which the jury could find from the evidence.

On the evening of this accident a body of 400 or 500 students and their followers, preceded by a brass band, had come to the Broad street station of the defendant company at Philadelphia for the. purpose of witnessing the departure of a football team, and had-gathered in the corridor between the train'shed and waiting rooms. According to-the testimony of some of the witnesses, they arrived at 8:05 p. M. and remained until about 8:50, the leaving time of the train the plaintiff was to take. About 8:30 the gate was opened and announcement made of the train, whereupon she in company with her husband started to cross the corridor to the gate, and was about one-half way across, when she was injured in the manner thus described by her: “ This mob rushed right down onto me and they knocked me down. . . . They appeared to be coming two by two, and they knocked me down on to my knees. And I was just'in the act of getting up when this one gang all run ring around the rosy, had hold of each other’s hands, going'as fast as they could. They broke loose and fell right up against me and knocked me on my side in the hip. It all happened in a minute.” She was a heavy woman nearly fifty years of age at the time of the accident, and claims to have received serious physical injuries, and, in direct consequence of them, to have sustained a nervous shock with distressing incidents from -\yhich she still suffers. ;

Common carriers do not, in legal contemplation, warrant the absolute safety of passengers in their cars, but they are bound to the exercise of the utmost degree of diligence and care, and it has been held that this duty includes the exertion of such power as conductors and other trainmen have to protect passengers, from violence of other persons: Pittsburg, etc., Ry. Co. v. Hinds, 53 Pa. 512; Pittsburg, etc., R. R. Co. v. Pillow, 76 Pa. 510. In a case where these and other analogous cases were considered the rule was stated as follows : “ The conductor has general power and control over the train and all persons on it, with authority to compel observance of the regulations of the company, to preserve order, and to employ the whole force of the train men, and of passengers willing to assist, for these purposes. These extensive powers involve the correlative duty to protect passengers, not only from injury by negligence or accident, but also from violence and illegal annoyance or interference by other parties: ” Duggan v. B. & O. R. R. Co., 159 Pa. 248. Chief Justice Mitchell cites in his opinion: Rommel v. Schambacher, 120 Pa. 579, as a case where upon the same principle an innkeeper was held liable for not protecting a guest from the drunken freak of another. If regard be had to the principle upon which Duggan v. B. & O. R. R. Co. was decided it would be impossible to hold that this duty to protect passengers from violence by disorderly persons, which it is practicable for the servants in charge to prevent, does not begin until the passenger enters the car and ends when he leaves it. The power of the carrier to make and enforce reasonable regula: tions for the conduct of persons in the rooms provided at stations for passengers is coupled with the correlative duty to exercise care for the protection of passengers, when properly in such rooms, from injury by intruders or by other passengers. Reasonable, rather than the utmost or extraordinary, is generally mentioned as the degree of care required for this purpose. “ A carrier must furnish a safe and sufficient means of ingress to, and egress from, its trains. It is likewise incumbent upon it to exercise ordinary care in protecting from danger persons assembled at its stations, intending to depart by its trains. Rudeyjness and bad manners of strangers and intending passengers, '^resulting in injuries, will not convict a carrier of negligence. Such conduct is not to be anticipated, and the carrier is not required to provide against it. But when a street-car company invites the public to use its line to visit a park, or other public place of amusement or recreation, and thereby induces large crowds of people to assemble at its stations in such place, the corporation must -use reasonable care in handling the people and in protecting them from injuries arising from the conduct of the crowd in entering and leaving its cars : ” Muhlhause v. Monongahela St. Ry. Co., 201 Pa. 237. What would be reasonable care at a small way station would not be such at the station where this accident occurred ; and even at a station like the latter it would be unreasonable to require the carrier to maintain a force of men large enough to prevent injury to passengers from every disorderly or riotous conduct that suddenly may occur, but which there is no probable cause for expecting. In such a case, the question is not whether a larger force of men ought to have'been employed, but whether in the exercise of reasonable care the danger could have been foreseen by the employee in charge, and the injury to the passenger could have been prevented, if such employee and those he had right to call to his assistance had exercised the power they had. This distinction is well illustrated by the case of Pittsburg, etc., Ry. Co. v. Hinds, 53 Pa. 512, where it was shown that a woman passenger was injured during a fight among a mob of disorderly men that had got on the train at a way station. The Supreme Court held: first, that the railroad company was not liable for allowing them to get on, but this was only because the evidence showed clearly that the conductor had no opportunity or force adequate to prevent them, and the company was not bound to anticipate such an occurrence ; secondly, that if the conductor did not do all he could to stop the fighting which resulted in the plaintiff’s injury, there was negligence which made the company liable, and that this question was for the jury. We quote from the opinion of Chief Justice Woodwaed : “ If the conductor did not do all he could to stop thef fighting, there was negligence. Whilst a conductor is not provided with a force sufficient to resist such a raid as was made upon the train in this instance, he has, nevertheless, large powers at his disposal, and if properly used, they are generally sufficient to preserve order in the cars, and to expel disturbers of the peace. His official character and position are a power.’’ The station master at the Broad street station has not precisely the same powers as a conductor, but he has similar powers to compel observance of reasonable regulations for the protection of passengers in the rooms provided for them at the station, and the evidence shows that there are officers and employees under him whom he can call upon for assistance in such an emergency; hence the above-quoted remarks are pertinent. We refer again to the recent decision of our Supreme Court in Muhlhause v. Monongahela St. Ry. Co., 201 Pa. 237, and also to the discussion of the general question in the opinion of the supreme court of New Jersey, which was adopted by the court of errors and appeals, in Exton v. Central R. R. of N. J., 63 N. J. L. 356 (16 Atl. Repr. 1099), 56 L. R. A. 508. The latter case is specially pertinent, because one of the points decided was, that the company is liable for injuries to a passenger, at a station, even if the danger arose from the acts and conduct of intruders or strangers, if such acts and conduct were so continued and so notorious that the servants of the defendant company in charge of "the depot and the passageways thereof devoted to the use of passengers knew of such acts and conduct, or should have known of them and of the danger arising therefrom and could have prevented them by the exertion of the power they had. This is the precise principle which we think is applicable to this case.

We can discover no such similarity between this case and Ellinger v. Philadelphia, Wilmington & Baltimore R. R. Co., 153 Pa. 213, or Graeff v. Philadelphia & Reading R. R. Co., 161 Pa. 230, as makes either a controlling authority here. In the first of these cases the injury to the plaintiff occurred when she was about to descend from the lower steps of a car to the ground, and was caused by her being jostled off by another passenger rudely pushing by her to enter the car. In the second case the injury to the passenger was caused by another passenger rudely and suddenly pushing a swinging door in the first passenger’s face. They decide that a common carrier is not bound to protect its passengers from rudeness or bad manners on the part of strangers or other passengers unless such conduct amounts to a breach of the peace. But under the implied findings of the jury in this case, as we shall presently show by extracts from the charge, the plaintiff was not injured by a sudden act of rudeness, like that described in either of these cases, which those in charge of the station had no cause to anticipate or ability to prevent. We do not say that the facts were undisputed, but there was evidence that this crowd of young men were behaving in a boisterous and disorderly manner, that they were shouting and singing, led by one of their number with a megaphone, that the crowd rushed back and forth from one end of the corridor to the other in a manner similar to that which the plaintiff described, and that this conduct had been continued for a considerable length of time before the injury to her, without apparent effort on the part of those in charge to prevent it. They were not malicious, but good-natured, and evidently were simply expressing in this manner their enthusiastic regard for their university and its football team. Possibly, also, they were impelled to indulge in this horseplay, as it has been designated, by a desire to encourage the latter; for which impulse, apart from the manner and the place in which it was manifested, no criticism can be made. The singing and shouting harmed no one and perhaps were not preventable; but there is every reason to believe, at least a jury would have been well warranted in finding, that proper and timely remonstrance upon the part of those in charge of the station would have prevented such part of the boisterous and unruly conduct as threatened physical injury to passengers crossing the corridor from the waiting rooms to the train shed. No valid reason can be suggested for holding that the danger and injury to which the plaintiff was subjected were part of the unavoidable risk incident to the execution of lawful purpose in a lawful manner by these young men, which the railroad officials had no right, and were under no obligation, to prevent. They were bound to do what they could.

All of the questions of fact were submitted to the jury in sfich manner as to bring clearly before their minds the facts to be determined, and the bearing these had upon the general question of the liability of the defendant company; and the legal principles applicable to the evidence are so well set forth in the charge as to render further discussion by us unnecessary. The learned judge explicitly told the jury that the company was answerable only for a failure to exercise vigilance and care toward protecting patrons using the station from apparent and fairly avoidable danger. He said: “ If prior to the accident the students and their followers gave no substantial notice of a disposition to indulge in physically violent conduct, dangerous to defendant’s patrons, if their charge, supposing they made one, in which the plaintiff was injured, was their first movement of that character, the defendant is not, in the opinion of the court, answerable. Or, if the students had made!' it plain that they were a menace to passengers, but the defend-^ ant was unable to cope with them, and did what it could to protect passengers, then it is not answerable. On the other hand, if for a considerable time prior to the accident there was a large crowd of students and followers in the station, indulging in such boisterous conduct as manifestly threatened personal injury to passengers, and the defendant could, by the exercise of due vigilance, have ejected this mob or reduced it to order and control, before the plaintiff was injured, then its failure to do- so renders it answerable to the plaintiff if she was subsequently injured by a rush of this crowd.” Then after reviewing the evidence and fairly presenting the respective contentions of the parties with reference thereto, he said further : “ Then if, by a fair preponderance of the evidence, you find it is proved that, for a considerable time prior to the accident, the crowd had been indulging, with slight intermissions, in such boisterous conduct as plainly threatened injury to passengers, that the defendant could, by the use of the means present and within its control, have ejected such mob or reduced it to order and control, before the plaintiff was injured, that the defendant failed to do this, and, as a direct consequence, the plaintiff was subsequently injured by such mob; if you find all of these facts to be fairly proved, then the plaintiff is entitled to recover; otherwise your verdict will be in favor of the defendant.” The verdict of the jury implies a finding of all these facts, and as there was evidence upon which such finding could be based by them, the court was clearly right in submitting the question to them, and this was done in a manner of which there can be no just complaint.

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


author: Beaver, J.,

text:
    Dutton v. Philadelphia, Baltimore & Washington Railroad Company, Appellant.

      Railroads — Construction of bridge — Injury to dam — Negligence.
    Where a railroad company for the purpose of strengthening or supporting a previously constructed bridge, erected trestles under the bridge in the bed of the stream in such a way as to pack the ice in large masses, which on breaking away destroyed a dam breast, the ownef of the dam is entitled to recover damages from the railroad company for the injuries sustained.

      Evidence — Expert witness — Negligence—Construction of bridge — Railroad.

    A witness called to testify as to the negligent construction of a support for a bridge by a railroad company, is qualified as an expert where it appears that he had had a course of technical education in engineering, had followed railroad engineering as a profession, had experience in the bridging of streams, and had examined the construction in question, had made measurements of it, and was familiar with the topog- . raphy of the surrounding country and the general force and size of the stream.
    Where an expert witness called to establish negligence has been improperly rejected, and the defendant has introduced testimony to negative the contention of the plaintiff, the court may permit the plaintiff to call the expert in rebuttal.
    Argued Nov. 19, 1906.
    Appeal, No. 69, Oct. T., 1905, by defendant, from judgment of C. P. Del. Co., Sept. T., 1903, No. 114, on verdict for plaintiff in case of George G. Dutton v. Philadelphia, Baltimore & Washington Railroad Company and the Chester Creelc Railroad Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, J J.
    Affirmed.
    Trespass to recover damages for injuries to a milldam.
    The facts are stated in the opinion of the Superior Court.
    The court refused binding instructions for defendant.
    Verdict and judgment for plaintiff for $1,860.74. Defendant appealed.

      Errors assigned were (1, 2) in permitting E. A. Howell to testify; (3, 4) in refusing binding instructions for defendant.

      John J. Pinkerton, for appellants.
    — There was no evidence in this case that the defendant did not construct the bridge with proper care and skill, having regard to the landowners below, and the third point submitted by the defendant should have been affirmed: Berninger v. Sunbury, etc., R. R. Co., 203 Pa. 516.

      0. B. Dickinson, with him D. F. Bose, for appellee.
    — Where there is evidence of insufficient vent given in bridge construction this is sufficient to constitute negligence for which the defendant is liable : Smith v. Shields, 194 Pa. 635 ; Berninger v. R. R. Co., 203 Pa. 516; Fick v. R. R. Co., 157 Pa. 622; Bell v. McClintock, 9 Watts, 119; Lehigh Bridge Co. v. Lehigh Coal & Nav. Co., 4 Rawle, 9 ; McCoy v. Danley, 20 Pa. 85.
    February 25, 1907:
   Opinion by

Beaver, J.,

A clear understanding of the plaintiff’s cause of action, as set forth in his statement, will greatly simplify the disposition of this case.

The claim is that the breast of the dam of the plaintiff was torn out by reason of the restriction of the flow of the ice, in and from a stream over which the defendant had erected a bridge, upon and over which its railroad was constructed.

The plaintiff’s statement sets forth, that “ Said bridge, as it was originally constructed and as it remained for many years, rested on two abutments, one on each side of said creek, clear of the stream itself, and leaving the whole of said creek open for the free passage of water, ice and such matter as usually passes along said creek.” After reciting the duty of the defendant to maintain the bridge in such a way “ as to leave said creek clear and open for the free passage of water,” etc., the statement goes on to say: “yet the defendants, not regarding their said duty, afterward for the purpose of strengthening or supporting said bridge or repairing or altering the same, or for some other reason or reasons unknown to said plaintiff, their duty in this behalf not regarding, negligently, wrongfully and carelessly, and in total disregard of plaintiff’s rights, placed and erected five heavy trestles under said bridge in the bed or stream of said creek, which said trestles being so placed and erected, being actually in the dam of said plaintiff, that the free passage of water, ice and such other matter as aforesaid was greatly interfered with, so that afterward, to wit, on or about the 26th of February, A. D. 1902, on the breaking up of the ice that had formed in' said creek above said bridge, the ice, water and matter usually passing along said creek on the breaking up of the ice was unable to pass freely along said creek under said bridge, by reason of said trestles, but were caught in and against the same and became packed and. jammed and piled up there to a great height, and formed a dam of large dimensions, and said ice, instead of passing freely along said creek, because of said trestles, became packed in large masses, which, on breaking away from the pack or dam at said bridge, passed down said creek and broke through, tore out, demolished and destroyed said dam-breast of said plaintiff, whereby the water escaped from the dam maintained by his said dam-breast, so that said plaintiff was compelled to build and maintain a temporary dam-breast at once and afterward a permanent one, at a cost,” etc.

The complaint, therefore, was not of the original construction but of a subsequent construction, negligently made, within the limits of the stream across which the defendant’s dam was erected. The very essence of the complaint and the trend of the testimony was to show such negligence. The case does not, therefore, come within the lines of Berninger v. Sunbury, Hazleton & Wilkes-Barre Railway Co., 203 Pa. 516, upon which the appellant seems to rely. It is rather similar to and governed by Miller v. Buffalo & Susquehanna Railroad Co., 29 Pa. Superior Ct. 515, the facts in which were almost identical. The case was, therefore, for the jury, if there was competent testimony as to negligence, or lack of care, in the construction of the trestles placed amid-stream underneath the original bridge. This disposes of the third, fourth and fifth assignments of error, all of which assume that the court below should have taken the case from the jury.

The only remaining question relates to the admission of so-called expert testimony, in regard to the character of the trestles erected within the limits of the stream, tending to show negligence or lack of engineering skill in their construction.

The witness, the admission of whose testimony forms the basis of the first and second assignments of error, was an attorney at law, and also, as he testifies, a civil engineer. Was he a competent expert witness ? His examination upon that subject elicited the following: “By Mr. Dickinson: Q. You are a member of the Delaware county bar? A. Yes,sir. Q. Are you also an engineer by profession ? A. Yes, sir. Q. Did you have a technical training and course of technical education in engineering? A. Yes, sir. Q. And following your graduation from your college, did you afterwards follow the profession of engineering ? A. Yes, sir, and do yet. Q. And still continue to do it. Have you had experience as an engineer in railroad engineering ? A. Yes, sir. Q. And you are connected— By the Court: You need not interrogate him further, unless he is objected to. By Mr. Dickinson: Do you want me to test him further ? By Mr. Pinkerton: Oh, no. By Mr. Dickinson: Q. Mr. Howell, your training included bridge construction and the bridging of streams ? A. From a railroad engineer’s standpoint, yes, sir. Not the mechanical construction of them. Q. I mean the engineering problems connected with it. A. The location. Q. Have you made some measurements in connection with the railroad bridge over Chester creek. A. Yes, sir. Q. Now what is the span between the abutments? A. My measurement made it 110 feet. Q. What is the width of the stream ? A. Why, about sixty-nine feet. Q. About sixty-nine feet — now did you examine the stream, the topography of the surrounding country and the general course and size of the stream with a view of considering the question of how much of a free passage should be allowed for water and ice accumulations on a stream in that locality ? A. I was familiar with the general conditions and looked particularly at the place. Q. Mr. Howell, I wish you would tell us whether or not, in your judgment, it would be proper engineering, or at least whether it would be a proper construction, within that space of sixty-nine feet, to put up a number of trestles — say six trestles — which were set up at right angles to the tracks and not exactly in line with the course of the stream, and to permit a construction of that kind to remain in the stream ? By Mr. Pinkerton: We object to that kind of a question. By the Court: That is sustained.” The witness was undoubtedly a competent, expert witness.

Was the inquiry the subject of expert testimony? The testimony of the defendant’s engineer sheds light upon this subject. Henry C. Smith, a civil engineer in the employment of the defendant company, was asked: “ Q. Now, I wish you would tell me whether or not that bridge (referring to the bridge which was the subject of inquiry in the case), as you left it when you went away from there, was constructed with proper care and skill with regard to the landowners below it. A. Yes, sir, it was. Q. Was or was not the width of the bridge there sufficient to vent that stream at ordinary water ? A. Ordinary flow, yes, sir. Q. Was it, or was it not, ample for all ordinary freshets and floods ? A. It was.” And later, by Mr. Pinkerton: “ Q. As I understood you to say — for I was a little confused by an interruption — I understand you, from your long knowledge of this^ bridge, that it was constructed according to the best engineering skill to meet any ordinary or probable demand on it, in view of the size of the stream and the watershed it contributed. A. It was, yes, sir. By the Court: Q. Now when you allude to construction, do you take into consideration the trestles that were in the stream? A. Yes, sir.”

We are at a loss to understand why the court below, when the plaintiff’s expert witness was upon the stand, rejected his testimony. It was the duty, of the plaintiff to establish negligence. The witness had a knowledge of the surroundings and what was required to vent the water, the ice and other material passing down the stream, and his opinion, if favorable to the contention of the plaintiff, would have tended to establish negligence. After the defendant, however, had introduced testimony to negative the contention of the plaintiff, the court was clearly right in allowing the plaintiff to call Mr. Howell in rebuttal. It was not only right in itself, but was a very proper way of correcting the wrong done the plaintiff by sustaining the objection of the defendant to the admission of the witness’s opinion originally, as an expert engineer. The competency of the witness, as an expert, being clearly established, it is very difficult to see why the defendant should be allowed to introduce expert testimony as to the character of the bridge, from the standpoint of the engineering skill involved therein, and that the same privilege should not be allowed to the plaintiff. In our view of the case, the testimony, when first offered, was entirely competent and should not have been excluded. This having been done, however, it was within the discretion of the court to allow it to be introduced in rebuttal.

We think the case was fairly tried. No exception is taken to the verdict and, from every point of view, we regard it as free from reversible error.

Judgment affirmed.


text:
    Amole’s Estate.

      Wills — Gift for charitable use — Execution of will — Charity—College— Act of April 26,1855, P. L. 328.
    A gift to a college will be construed to be a gift to a charitable use within the meaning of the Act of April 26, 1855, sec. 11, P. L. 328, relating to the execution of wills within one calendar month from testator’s death, where it appears that the college in question was incorporated; that it included as one of its departments a school of theology; that the corporation was under the control of members of a particular denomination, although its management was not denominational, various denominations being represented in its faculty; that the college was not self-supporting, but was maintained by gifts, contributions of churches, tuition fees and endowed scholarships; that young men were aided to the extent of their tuition bills, and to some, in their room bills, and to some, loans were made to be repaid after graduation.
    In such a case it is immaterial that there is no word in the will in connection with the gift, indicating a charitable purpose.
    Argued Nov. 20, 1906.
    Appeal, No. 55, Oct. T., 1906, by Ursinus College, from decree of O. C. Chester Co., dismissing exceptions to auditor’s report in Estate of Christian Amolé, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to report of T. R. Cornwell, Esq., auditor.
    The facts appear by the opinion of the Superior Court.

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

      J. Frank E. Hause, for appellant.
    — Ursinus college is not by its charter, by its by-laws, or by its methods of operation and instruction, a charitable institution,
    No student benefits in any degree by any gifts, endowments or the like, in order to secure a college education.

      Wm. M. Hayes, with him J. Carroll Hayes, C. W. Talbot and C. II. Buhl, for appellees.
    — A devise to a school, under the auspices and control of a religious denomination or sect, and confined to the youth of its members, both rich and poor, and in which the peculiar views of Christianity, as entertained by that denomination, constitued a part of the instruction imparted in the school, is a devise to a charitable use: Price v. Maxwell, 28 Pa. 23; Miller v. Porter, 53 Pa. 292.
    February 25, 1907:
   Opinion by

Rice, P. J.,

By his will executed the day before his death Christian Amolé gave the residue of his estate to Ursinus College. This corporation was created in 1869, by a special act of the Pennsylvania legislature “for the purpose of imparting instruction in the sciences, literature, liberal arts and learned professions.” In a clear and satisfactory report, which was approved by the orphans’ court, the auditor appointed to distribute the balance in the hands of the executor found that this was a gift to a charitable use within the meaning of the eleventh section of the Act of April 26,1855, P. L. 328, and was void because the will was executed within one calendar month of the testator’s death.

In the constitution adopted in 1869, and still in force, it is provided that: no person except a member of the German Reformed Church in good standing shall be elected a member of the board of trustees, when such election will leave representation of said church in the board less than three-fourths of the whole number for the time being; no person, not a member of the German Reformed Church, in. good standing, shall be elected to the board except by a unanimous vote of the mem- ' bers present; the board shall make no application to the legislature to alter or amend the act incorporating Ursinus College except by petition setting forth particularly the changes desired, and signed by every member of the board for the time being; the religious and moral principles of the college shall always be those of the Evangelical Protestant Church, and in essential historical harmony with those of the German Reformed Church, as represented by him whose distinguished name the institution bears; but no pupil who sustains a good moral character and is willing to comply with the regulations of the institution shall be excluded from its privileges on account of his religious opinions'; in organizing the different departments of instruction in the college, due regard shall always be had to the wants of the German population in our country, and especially to the wants of the German element of the German Reformed Church; to alter, amend or repeal the sections containing the foregoing provisions shall require the unanimous vote of a full board.

The college embraces the following departments, all under, one corporate management: the college; the summer session; the academy or preparatory school; the school of theology.

The following facts, stated for the most part in the language of the auditor, should also be noticed as showing how the institution is conducted. Each applicant for admission to the school of theology must present a certificate of church membership; and the course of instruction therein is open to students of all denominations of Christians. Although the corporation is under the control of the members of the German Reformed Church, the management is not denominational. Various denominations of Christians are represented in the faculty. This is true of the theological department, where of the seven instructors only two are identified with the reformed church; the others being of other denominations. The course of study in this department is one of broad theological learning common to the great majority of divinity schools and is open to students of every Christian faith.

Coming now to the facts more particularly pertinent to the argument of appellant’s counsel, it appears that the corporation has no capital stock, and no membership other than the members of the board of direction. It has no provision for dividends or distribution of profits. The college is not self-supporting. The income from tuition received from students is insufficient to meet expenses. The funds on which the college has been founded and on which it is maintained are derived from the following sources: The gifts of individuals; contributions of churches; the tuition fees received from students ; eighteen endowed scholarships of $1,000 each; the John A. Wanner fund of $2,500; donations during life of Robert Patterson of Philadelphia, amounting to $52,000, and a bequest from him of $10,000; the Robert Patterson endowment fund of $150,000; the alumni endowment fund of $11,000; the church history fund of $4,000; the Samuel H. Bibighaus fund for the endowment of the presidency of $15,000; the general endowment fund. The college fees, including tuition, library, laboratory, gymnasium, are .$100, of which $50 represents tuition, or the value of a scholarship; but candidates for the ministry and the children of ministers are exempt from the payment of tuition. Young men otherwise unable to command the privileges of the institution are aided to the extent of their tuition bills, and in some cases in their room bills also, by giving them opportunity to render services to the college; by giving them a loan on approved security, payable after graduation, without interest; or by beneficiary support, which is pecuniary aid sent by churches and sometimes by individuals for the support of a student, designating for whom it is intended. The college is expected to take an obligation from the student, who gets the use of the money without interest. After his graduation and entry upon the ministry, he must return it in annual installments of $50.00. The money when received again by the college is again loaned to other students as the benefactor may select.

The foregoing statement taken from the auditor’s findings of fact, none which is excepted to, is a complete refutation of the claim made in the argument that this is not a charity, because every student is required to pay the usual charges of the institution for instruction, and no student benefits in any degree by any gifts, endowments or the like, in order to secure a college education. Some students are exempt from payment of tuition fees; others are assisted by loans of money and are permitted to discharge the obligation by repayment in annual installments without interest, which, in effect, does not differ from a remission of part of the charges presently payable; and all students receive the benefits of just such gifts as this, for without them or an increase of the charges to the students the institution could not be maintained as it is now maintained. A gift to a school does not cease to be for charitable uses, because religious instruction is combined in such school with that of a literary and scientific character, nor because its benefits extend alike to the rich and the poor: Price v. Maxwell, 28 Pa. 23. Upon the principle that when terms of art or technical terms are used, and there is nothing in the statute to show that they were used in a restricted or popular sense, they must be taken according to the acceptation of the learned in the art, trade or science to which they properly belong, it was definitely decided in the thoroughly considered case above cited, that the words “ charitable uses ” had acquired a legal and technical signification in which they must be understood in the construction of this section of the act of 1855. Chief Justice Lewis speaking for the court said: “We have no doubt that they were so understood by the legislature, and that they were intended to embrace objects of a religious, literary, and scientific character, as well as those which related to the poor and afflicted.” In Miller v. Porter, 53 Pa. 292, where the meaning of these words was again fully considered and discussed, it was declared: “No matter that it was not to be a free school; it was to bring the opportunities of education nearer home to the people; and he who cheapens popular education, or tempts a larger number into ‘ wisdom’s ways,’ is a public benefactor, and what he does is, in the sense of the statute, a charity.”

Another point suggested in the appellant’s argument is that no word in the will, in connection with this gift, indicates a charitable purpose. But the gift being to an incorporated institution, both founded and conducted as a charity, this is to be presumed without other express words. Even in the case of a bequest to unincorporated, charitable associations, it has been held that the bequest is not necessarily void because it was not made upon any defined charity or for any specified charitable uses. “Great numbers of cases,” said Justice Strong, “ might be cited, in which gifts to associations whose objects were exclusively charitable, have been sustained as charities, though the direction was to pay into the general funds of the associations, and though there was no express requirement that the donor’s bounty should be applied to any other uses: ” The Evangelical Association’s Appeal, 35 Pa. 316.

We need not pursue the discussion further. We entertain no doubt that this was a gift to a charitable use within the meaning of the eleventh section of the act of 1855.

The decree'is affirmed, the costs of the appeal to be paid by appellant.


author: Pontee, J.,

text:
    Chester City v. Evans, Appellant.

      Road, law — Paving—Original pavement — Repair—Evidence—Burden of proof.

    Where a property owner resists payment of a municipal lien filed for paving a street with vitrified brick, on the ground of prior or original paving, the burden is upon him to show that at the time of the alleged original paving the street had been permanently improved by the city as a city street, and paved as such, and that the work had been done under the authority of those authorized to represent the city with the intention of changing the old roadway into a permanent city street.
    On a scire facias sur municipal lien for paving a street with vitrified brick, the defendant offered evidence which tended to show that the street in question some years before had been macadamized from curb to curb in such a manner as to change a clay road into a good, reasonably smooth, and substantial artificial highway. Prior to the macadamizing, the city council enacted a resolution requiring all property owners on the street to curb and pave the sidewalks in front of then-respective properties within thirty days. About six weeks afterwards the councils instructed thé street committee to advertise for proposals for macadamizing the street, and subsequently a contract was awarded, and the work of macadamizing done. The evidence showed that the council had from time to time ordered the bills to be paid to the contractor for the macadamizing, as the work progressed. Held, (1) that the evidence was sufficient to show that the macadamizing of the street had been done under the express authority and direction of the city council; (2) that the defendant was entitled to judgment on a verdict in his favor.
    Argued Nov. 20, 1906.
    Appeal, No. 144, Oct. T., 1906, by defendant, from judgment of O. P. Delaware Co., March T., 1900, No. 512, on verdict for plaintiff in case of City of Chester v. John J. Evans.
    Before Rice, P. J., Porter, Henderson, Morrison, Orladt, Head and Beaver, JJ.
    Reversed.
    Scire facias sur municipal lien for paving. Before Johnson, P. J.
    The facts are stated in the opinion of the Superior Court.

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

      February 25, 1907:

      John JE. McDonough, with him J. Lentz Garrett, for appellant.
    —The cost of repaving a public street cannot be assessed upon and collected from the property abutting on the street, even though the cost of the original paving was not borne by the then owners of the abutting property, but by the public: Harrisburg v. Segelbaum, 151 Pa. 172; Greensburg Boro. v. Laird, 138 Pa. 533; Boyer v. Reading, 151 Pa. 185.
    Macadamizing was held to be an original paving in cities of the first class in Alcorn v. Phila., 112 Pa. 494; Phila. v. Ehret, 153 Pa. 1; Phila. v. Cowen, 202 Pa. 453.

      A. A. Gochran, for appellee.
    — The case is clearly ruled by Phila. v. Dibeler, 147 Pa. 261, and Phila. v. Hill, 166 Pa. 211.
   Opinion by

Pontee, J.,

The questions presented by this record arise out of the trial, in the court below, of an issue which involved the validity of a municipal lien for paving. The city of Chester, in 1889, paved the roadway of Edgmont avenue, from Twelfth street to Fifteenth street, with vitrified brick, and filed a lien against the property of the defendant which abutted upon that part of the street. The defendant averred that his property was not subject to this lien for the reason that the street in question had been permanently improved by the city, as a city street, and had been by the city changed from an ordinary road into a city street and macadamized from curb to curb, which work was done under municipal authority in the years 1869 and 1870. There was a dispute, under the evidence, as to what action the municipal authorities- had taken and what work had actually been done upon the street by the municipality, at the time of the alleged previous paving. The learned judge of the court below submitted the questions of fact to the jury, under instructions which were briefly and fairly summarized in the concluding sentences of his charge. “ If you find from all the evidence in this case that the City of Chester, in 1868, did intend to change the character of this street into a permanent improvement and did do it, a permanent city street, then your verdict must be for the defendant. If, on the other hand, you find from the evidence, from all the evidence, that it was only intended to be a repair, then the city is entitled to recover, because the property has never been benefited before by any permanent street improvement.” The court had already instructed the jury, in effect, that the burden was upon the defendant to prove, not only that the street had been macadamized, but that the work had been done under the authority of those authorized to represent the city, with the intention of changing the old roadway into a permanent city street. The jury found a verdict in favor of the defendant, but the plaintiff having requested binding intructions, the court subsequently entered judgment for the plaintiff non obstante veredicto, for the full amount of the claim. The entry of such judgment is now assigned for error.

The evidence produced at the trial, by the defendant, would have warranted a finding that the part of the street in question had been graded in the years 1868 and 1869, that for the entire length of the street the sidewalks had been paved and the curb set in the latter year, and that, in the years 1869 and 1870, the roadway had been macadamized, from curb to curb, in such a manner as to change the clay road into a good, reasonably smooth, and substantial artificial highway. The city produced witnesses whose testimony tended to contradict this evidence. The jury found in favor of the defendant upon this question of fact. We must therefore accept it as settled that, so far as the work done upon the ground was concerned, the paving of the street, in 1869 and 1870, was of such a character as to constitute an original paving of the street; and if done under municipal authority, for the purpose of changing the old road into a city street, it would relieve the owners of abutting property from liability for assessment for the cost of a subsequent paving: Harrisburg v. Segelbaum, 151 Pa. 172; Philadelphia v. Ehret, 153 Pa. 1.

The defendant was, however, bound not only to establish by evidence the previous change in the character of the street, but to show that that change had resulted from the lawful exercise of the municipal authority, for the purpose and with the intent of changing the road into a street. The municipality is bound to'keep in proper repair all its highways,-whether they be roads or streets, and if the municipal intent merely be to repair the road as an ordinary highway, a mere surfacing of the road, however.carefully or expensively done, will not be apaving. Mr. Chief Justice Stebjrett, in Harrisburg v. Segelbaum, 151 Pa. 172, said: “ The controlling consideration is not so much whether the prior improvement of Market street by macadamizing was in the strict sense of the word a paving thereof, as whether by said improvement the street was changed from an ordinary clay road into a good, reasonably smooth and substantial artificial highway, practically equivalent to an ordinary well improved street, paved with cobblestone or other materials then used for paving.” The present chief justice, in Philadelphia v. Eddleman, 169 Pa. 452, reviewed and explained the prior decisions dealing with this question, and while recognizing the doctrine as stated in Harrisburg v. Segelbaum, made clear the distinction which runs through all the cases, which cannot be better expressed than in his own language. “ But as on the one hand it is only the first payment, whatever it be composed of, converting the road into a street, for which the city can charge the property owner, so on the other hand, as the city has the exclusive right to determine in the public interest when, how and with what material such conversion into a street shall take place, it is essential to such a* first pavement as shall exonerate the abutting owner from further charge for improvement, that it shall be laid or adopted by the municipal authority. Not necessarily by formal ordinance declaring the change, for it is not always convenient or even possible to make such documentary proof, but municipal recognition of the pavement of the street, as such, must appear, either by action in the first instance or by acquiescence and adoption subsequently. The questions which usually arise as to the kind of pavement, whether by wood, or cobblestone, or macadamizing, or otherwise, and who paid for it, are subordinate, and are only material or relevant as bearing on the main issue of municipal recognition. They have been treated, therefore, by this court not as questions of law, but as questions of fact whose weight and bearing depended on the other evidence and the circumstances of each case.” This distinction has been clearly recognized in the subsequent cases: Harrisburg v. Funk, 200 Pa. 348; Philadelphia v. Gowen, 202 Pa. 453; East Street, 210 Pa. 539.

The councils of a city have the sole right to designate what streets shall be paved and the character of the paving: Philadelphia v. Dibeler, 147 Pa. 261; Philadelphia v. Hill, 166 Pa. 211; Dick v. Philadelphia, 197 Pa. 467. The learned judge of the court below deemed himself bound by the authority of the cases last cited to enter judgment in favor of the plaintiff, non obstante veredicto, upon the ground that there was no sufficient evidence that the improvement of the street, in 1869 and 1870, had been authorized by the proper municipal authorities. A careful review of the evidence as to the action of the city council leads us, in the light of the authorities hereinbefore cited, to the conclusion that the learned judge fell into error, in considering only the first resolution which that body passed when it undertook to deal with the question of changing the character of Edgmont avenue.

The first action taken by the council which related to Edgmont avenue was in this resolution: “ August 8, 1868. Resolved, That the grading of Edgmont avenue from the railroad to the city line be awarded to James Dougherty at his proposal for doing the same, he giving the requisite security for the performance of his contract and that the street committee be instructed to proceed immediately to repair said avenue after the grading is completed.” Had that been the sum total of the action of the city council, it would not of itself have been sufficient evidence of a municipal intention to change the character of the street. The street committee would have been authorized to repair the road, as a road, after the grading was completed; that was the only power delegated by the original resolution. The resolution above quoted was not, however, Jhe only action of the city council, material to the question, of which competent evidence was presented at the trial. The city council, on September 7,1868, enacted the following resolutions : “ Resolved, That the street committee be directed to procure sufficient stone to macadamize Edgmont avenue from the railroad to the city line. Resolved, That the street committee be required to proceed forthwith, and that they procure sufficient force to finish the same without delay. That the expense of the same be limited to one dollar per square yard after grading.” On May 10,1869, the city council enacted a resolution requiring all property holders on Edgmont avenue to curb and pave the sidewalks in front of their respective properties within thirty days. The street committee, on June 7, 1869, reported that the grading of Edgmont avenue was finished and asked instructions relative to macadamizing tbe same, and the city council instructed the committee to advertise for proposals for macadamizing said avenue with hard broken stone of a certain size and of a sufficient thickness and depth.” The city council, on June 21, 1869, awarded the contract for macadamizing Edgmont avenue to S. Mcllvaine & Son. The street committee, on January 3, 1870, reported to the city council that: “ Edgmont avenue has been graded and macadamized from the railroad to the city line, and the sidewalks on both sides graded, curbed and paved.” The evidence further showed that the council had from time to time ordered the bills to be paid to the contractor for the macadamizing, as the work progressed.

While it is true that municipal action cannot be assumed, but must be proved, the decision hereinbefore referred to clearly establish that it is not necessary to prove the municipal intention by the production of a formal ordinance declaring the purpose to change the character of the street. There was in this case sufficient competent evidence that the macadamizing of the street had been done under the express authority and direction of the city council, and the case was properly submitted to the jury. The subsequent action of the court, in entering judgment in favor of the plaintiff, notwithstanding the verdict, was erroneous.

The judgment is reversed and judgment is now entered, on the verdict, in favor of the defendant.


author: Henderson, J., Rice, P. J.,

text:
    Hoffman’s Estate.

      Decedents’ estates — Promissory note — Parent and child — Evidence.
    The validity of a promissory note under seal given by an aged decedent to his son, two and one-half years before the former’s death, will not be defeated by the evidence of three persons that the decedent was infirm and feeble-minded for several years prior to his death, where the witnesses do not state what their opportunity of observation was; how frequently they saw the decedent; and their testimony is contradicted by two witnesses; and it appears that there was nothing in the case to show that the son had any control or undue influence over his father, or managed the latter’s affairs, or had any confidential relation with him.

      February 25, 1907 :
    Argued Nov. 13, 1906.
    Appeal, No. 220, Oct. T., 1905, by Margaret B. Gross, from decree of O. C. Lancaster Co., May T., 1905, No. 89, dismissing exceptions to adjudication in Estate of John Hoffman, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Exceptions to adjudication. Before Smith, P. J.
    The facts are stated in the opinion of the Superior Court. ■

      Errors assigned were in overruling exceptions to adjudication.

      John H. Fry and B. F. Davis, for'appellant.
    — A seal imports consideration, and a contract under seal requires no consideration to support it: Hosler v. Hursh, 151 Pa. 415; Schmertz v. Shreeve, 62 Pa. 457.
    Even as between the parties, the fact that “ the son was and is a borrower,” would only be admissible on the ground of fraud. There was no proof of fraud in this case, and fraud cannot be presumed: Winters v. Mowrer, 163 Pa. 239.
    A voluntary conveyance is binding on the party and all claiming under him : Hartley v. M’Anulty, 4 Yeates, 95 ; Reichart v. Castator, 5 Binney, 109 ; Candor and Henderson’s Appeal, 27 Pa. 119 ; Burkholder v. Plank, 69 Pa. 225 ; Union B. & L. Assn. v. Hull, 135 Pa. 565 ; Evans v. Dravo, 24 Pa. 62.

      W. K. Keller, of Qoyle Keller, with him U. B. Lutz, for appellees.
    — The burden was on the payee to prove the righteousness of the transaction: Miskey’s App., 107 Pa. 611; Darlington’s App., 86 Pa. 512; Knee v. McDowell, 25 Pa. Superior Ct. 641; Smith v. Loafman, 145 Pa. 628; Stepp v. Frampton, 179 Pa. 284.
    The claimant failed to satisfactorily show hostile title to the note.
   Opinion by

Henderson, J.,

This appeal arises on the refusal of the orphans’ court to allow the claim of the appellant in a distribution of the estate of the decedent. The claim was based on a judgment promissory note dated April 1, 1899, for the sum of $850 payable to Jacob W. Hoffman on April 1, 1900. The note was assigned by the payee to the appellant who now presents it for payment. The execution of the note is not denied. It bears upon its face the declaration of the maker that it was given for value received. It is also under seal, which implies a consideration. The obligation is, therefore, apparently a valid charge against the decedent’s estate. The payee of the note was a son of the maker. The latter was about eighty years old at the time of his death and the noté was given two and a half years before. Objection was made by heirs of the decedent that the note was without consideration. The payee was not living with his father when the note was given, but for many years had resided several miles away. The maker of the note lived at his own home with his wife and so far as may be discovered from the evidence they looked after their own affairs. There is nothing in the case to show that the son had any control or undue influence over his father, that the son managed or assisted in managing his father’s business or that any intimacy or confidence existed except that they bore the relation of father and son. There is no intimation in the evidence that any deceit or imposition or fraud of any kind was practiced by the son when the note was given. The only evidence upon which the conclusion of the court seems to have been based was that relating to the physical and mental weakness of the decedent and the fact that two other notes were given by the father to the son; one of them dated April 2,1900, for $600 and the other dated April 1, 1902, for $550. The testimony offered to show the mental incapacity of the decedent at the time the note was executed is very meager and unsatisfactory. It is found in the evidence of Martin Yundt, a son-in-law, and Louisa Kerns and Ada Yundt, daughters of the decedent. To the question, “ What was his condition the last years of his life?” Yundt answered, “ The last couple of years he was feeble-minded. Very feeble. He was affected with dropsy, and sickly.” On cross-examination he testified : “ Q. What do you mean by weak-minded? A. That is, he was not what he ought to be. Q. Could he carry on a rational conversation? A. He talked all right sometimes, and the next time he hung his head.” It will be observed that the witness limited the period of his infirmity to two years before the decedent’s death. This time would not extend far enough to cover the date of the note and could not be held to indicate the condition of mind when the obligation was given. Moreover, it is so clearly insufficient to show that the subject of the inquiry was not competent to enter into a contract at the time the one in question was made that it is not to be taken into consideration in determining the integrity of the appellant’s claim. Louisa Kerns testified that the decedent had dropsy for the last three years of his life; that he was just like a child; that he did not know much about anything; that he was not fit for business. Mrs. Yundt’s evidence was very brief and to the same effect. The witnesses do not state what their opportunity for observation was ; how frequently they saw their father; nor do they give any facts from which we may determine the accuracy of their conclusions. It is to be observed further that they did not make special reference to the condition of their father at or about the time the obligation was given. This evidence is contradicted by Jacob W. Hoffman, who testified that his father was of sound mind ; that he had no aberrations or delusions and that he saw him about two days before he died. Jacob M. Fry, another witness, who seems to be disinterested, testified that the decedent was rational up to the day of his death; that he saw him nearly every day during all of the witness’ life; that he was an unusually healthy man and that “ he knew a dollar’s worth up to the day of his death.” It would be unsafe in view of this evidence to set aside the solemn obligation of the decedent, which shows upon its face that he received value therefor, upon such general and unsubstantial evidence of mental incapacity. There would be little reliance to be placed on the obligations of persons advanced in years if they might be destroyed by the vague and general evidence presented, and that directly and positively contradicted by two other witnesses, one of them having no apparent interest in the result. Was the note given without consideration? The maker has declared in writing that he received a consideration for it. The evidence relied, upon to overcome the presumption arising from the obligation itself is found in the testimony of Louisa Kerns and her daughter, Yerna. The former testified that in 1905 Jacob W. Hoffman came to her house and she “questioned him how he come all his money by;” that he told her that “ they didn’t get the money; ” that his father favored him and indorsed him at the bank. Upon cross-examination she stated that she knew he had given her father some money and that her brother said that the estate owed him $600. Yerna Kerns, the daughter, said she was present at part of the conversation referred to by her mother ; that her mother asked Jacob what he did with the money, to which he replied, “ Louisa, father favored me and indorsed me in the bank.” Nothing in these conversations shows that Jacob Hoffman was talking about the note now presented for payment, and it is contradicted by him. He stated that he told Mrs. Kerns in the conversation referred to that they got the money or he would not have the notes and that he did not say that his father indorsed him at the bank. It appears further from the testimony of Jacob Fry that Jacob Hoffman had advanced money to his father to take up a Burkholder claim, and that the money advanced by the son to his father may have been three or five or six years before the old man died. This is in substance the testimony on the subject of the actual consideration of the note. It falls far short of proof that John Hoffman did not receive any consideration from Jacob when the obligation was given. Moreover, if the note was a voluntary obligation it is good against the party who gave it and also against his heirs and legatees. No creditors are here claiming the fund. The estate is solvent. The obligation is under seal. In the absence of fraud or undue influence it is not material between these contestants whether there was an actual consideration or not. The father had a right to make a gift of the obligation to his son: Candor’s Appeal, 27 Pa. 119 ; Burkholder’s Executor v. Plank, 69 Pa. 225. The cases cited by the appellees, Miskey’s Appeal, 107 Pa. 611; Darlington’s Appeal, 86 Pa. 512, and others, are cases where undue influence and unfair advantage were clearly established by the evidence. A confidential relation between the parties was proved and many facts pointed directly to the results reached in the adjudication. These authorities do not control the .case under consideration. The two notes given by the decedent long after the one owned by the appellant were allowed in the distribution. The learned judge of the orphans’ court recognized the inconsistency of this action, but justified it by the reason that the other notes were not objected to, the heirs consenting that they might be paid. Inasmuch, however, as the evidence offered had no specific reference to the appellant’s note and as there was strong evidence to show a consideration for the notes to some extent, at least, the appellant as the holder of the first note is entitled to the benefit of all the evidence tending to show consideration. The court, although holding that the note was prima facie valid and that the burden was on those attacking it to show that it was not a bona fide note for a valuable consideration, concluded that the evidence offered by the appellees was sufficient for that purpose. We cannot'agree with him in that conclusion. After a careful examination of the testimony we are of the opinion that the appellees have failed to establish a want of consideration, fraud or undue influence in the execution of the note in question.

The decree is, therefore, reversed and the record remitted to the court below to make distribution to the claim of the appellant as one of the creditors of the decedent’s estate.

Rice, P. J.,

dissenting:

The learned judge below, who had much better opportunity to judge of the credibility of the witnesses who testified before him than we have, found as a fact, upon sufficient evidence in my judgment, that no consideration was given for the note in question. This fact alone would not constitute a defense, as the note was under seal. But I am very strongly inclined to the opinion that this fact, taken in connection with the other facts and circumstances, namely, the extreme age of the maker, his enfeebled condition of mind and body, the relationship of father and son between him and the payee, the confidence growing out of such relation, the withholding, if not the intentional concealment, from his coexecutor by the payee for two years and more of the fact that he held such obligation, brought the case within the general principle enunciated in the cases cited by the appellee’s counsel, and cast on the holder the burden of proving that the transaction was fair and conseionable. Upon a full view of all the evidence, without reciting it here, and of the judge’s findings of fact based thereon, I am constrained to the conclusion that the decree should be affirmed.

Porter, J., concurs in foregoing dissent.