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running very fast; that the whistle was not blown within half a mile of the crossing until the moment of collision; that the engine bell was not rung, and that the electric bell by the road side was out of repair, and did not ring. Held, that the evidence warranted the inference that such death was caused by defendant's negligence, though plaintiff's evidence was directly contradicted in every essential particular.

2. At the crossing there were east-bound and west-bound tracks, and three side tracks. A freight train stood on the east-bound track, and a gravel train on the siding south of and next to it. cut at the crossing, so as to leave a space of 24 feet between the cars. The cars obstructed the view of the west-bound track, on which the accident occurred, and the discharge of steam by the engines of such trains affected the ability to hear the usual crossing signals. ceased stopped in the vicinity of the crossing, looked, and listened, but as to whether he stopped at the best point to observe a west-bound train the evidence was conflicting. Held, that the question of contributory negligence was for the jury.

De

3. Defendant requested a charge that if the engineer blew his whistle 2,000 feet from the crossing, and the signal so given could be distinctly heard at and beyond the crossing, plaintiff could not recover. Held, that it was not error to answer that if, when the whistle was blown, deceased was in a situation to hear it, he must be presumed to have heard it, and, if he then went on the crossing, he did so at his own risk, and plaintiff could not recover.

4. There was evidence that the electric bell at the crossing was out of order, and failed to give notice of the train's approach, and that, before the acident, it rung so slightly that a person within 15 feet of it could not hear it. Held, that evidence that defendant repaired such bell a day or two after the accident was admissible.

Appeal from court of common pleas, Berks county; G. A. Endlich, Judge.

Action by Annie R. Link and Warren W. Link, her minor child, by Lott W. Reiff, his next friend, against the Philadelphia & Reading Railroad Company, to recover for the death of Ammon T. Link, husband and father of plaintiffs, caused by defendant's negligence. Pending the action, plaintiff Annie R. Link died, and it was continued by her coplaintiff. From a judgment for plaintiff, defendant appeals. Affirmed.

On the 9th of December, 1891, between 1 and 2 o'clock in the afternoon, a passenger train of the Philadelphia & Reading Railroad Company, bound from Allentown to Reading, struck a team and wagon which Ammon Link was driving over a crossing near Blandon Station. He came from his home, somewhere south of the railroad, with a two-horse open wagon for coal, which he intended to procure from a coal dealer whose place of business was immediately to the north of defendant's railroad. The public highway along which Mr. Link passed, crossd the railroad in a straight line; but the angle to his right on the east side made by the highway and the railroad was about 60 degrees. The railroad tracks at this point were five in number, as follows: The first track on the south was a siding, extending a short distance to the east of the highway, and known as the "cinder track." This track was, according to plaintiff's tes

timony, about 40 feet from the caution board placed on the public road south of the railroad. From this siding to the next siding was 12 feet. The next track, known as the "east-bound track," was 7 feet further north. Thence to the next track, known as the "west-bound track," on which the accident happened, was 7 feet more. From the westbound track, a distance of 20 feet, was the track and private property of such coal dealer.

The following are defendant's specifications of error: "(1) The court erred in refusing to charge the jury as requested in the defendant's first point, to wit: "There is no evidence in the case that the defendant was guilty of any negligence which caused or contributed to the accident which resulted in the death of Ammon T. Link, and the verdict

must be for the defendant. Answer. De

clined.' (2) The court erred in refusing to charge the jury as requested in the defendant's second point, to wit: 'Under all the evidence of the plaintiff, the verdict must be for the defendant. Answer. Declined.' (3) The court erred in refusing to charge the jury as requested in the defendant's third point: 'Under all the evidence in the case, the verdict must be for the defendant. Answer. Declined.' (4) The court erred in its answer to the defendant's fourth point, to wit: 'If the jury believe that the engineer of the train that injured Ammon T. Link blew his whistle at the whistle board, which, according to the testimony, is about two thousand feet away from the place of the accident, and that the signal so given could be distinctly heard at and beyond the crossing, there can be no recovery in this case, and the verdict must be for the defendant. Answer. If, when the whistle was blown, the deceased was in a situation to hear it, he must be presumed to have heard it; and, if he then went upon the crossing, he did so at his own risk, and there can be no recovery for the resulting injury.' (5) The court erred in admitting the following testimony: 'Q. How about that bell? Was it in working order that day? A. I do not know whether it was in working order that very day, but the day following, or two days following, they had repairsmen there. Mr. Snyder: I object. If he didn't see them that day, it is not evidence; it is irrelevant. The Court. Admitted. Exception for defendant. By Mr. Jacobs: Q. How was that? A. I noticed they were repairing it a few days afterwards. Q. Was it the next day, or when afterwards? A. The following day, I think. Q. They repaired that bell? A. The man was there quite a time. Previous to that, I knew that at different times it rang so lightly, when a train was passing, and I was 15 feet away, I could not hear it. I tried it.'"

Philip S. Zieber and baer & Snyder, for appellant. J. H. Jacobs, H. P. Keiser and Rieser & Schaffer, for appellee.

occurrence in question, it was noticed that it rung so lightly that a person within 15 feet of it could not hear it. In connection with such evidence, it was proper to show that, a day or two after the accident, the bell was repaired by the defendant company.

The specifications of error are overruled. Judgment affirmed.

LINK v. PHILADELPHIA & R. R. CO. (No. 133.)

(Supreme Court of Pennsylvania. Jan. 7, 1895.) Appeal from court of common pleas, Berks county; G. A. Endlich, Judge.

Action by Simon Link against the Philadelphia & Reading Railroad Company to recover for horses killed and wagon damaged by collision with defendant's train at a crossing, caused by defendant's negligence. From a judgment for plaintiff, defendant appeals. Affirmed.

McCOLLUM, J. This case was tried in the court below and argued here with 132, January Term, 1894, just decided (30 Atl. 820): The material questions in that case were the same as in this, and, for the reasons stated in the opinion filed in that, the judgment in this is affirmed.

MCCOLLUM, J. The defendant company's | approach of the train; and that, before the principal contention is that there was no evidence introduced on the trial which warranted an inference that there was negligence on its part which caused or contributed to the death of the plaintiff's father. There was evidence, however, submitted by the plaintiff, to the effect that the train was late and running very fast, and that the usual signals given on approaching the crossing were omitted. According to this evidence, the whistle was not blown after the train left the cut, a half mile from the crossing, until the moment of the collision; the engine bell was not rung; and the electric bell by the road side was out of order, and did not announce the approach of the train. This evidence, if believed, was clearly sufficient to show that the company was remiss in the performance of its duty to the traveling public at the point where the accident occurred. It is true that this evidence was directly contradicted in every essential particular by evidence submitted by the company in reference to the same matters, but the conflict in the testimony did not authorize a peremptory instruction by the court to find for the defendant. There is nothing in the evidence which warranted the court in declaring, as matter of law, that there was contributory negligence on the part of the deceased. When in the vicinity of the crossing, he stopped, looked, and listened, for the purpose of ascertaining whether a train was approaching. Before him were five tracks, the east and west bound tracks, and three sidings. A freight train was then standing on the east-bound track, and a gravel train on the siding south of and next to it. The gravel train was cut at the crossing, so as to afford an open space, of at least 24 feet, for travelers on the highway to cross the tracks. The engines attached to these trains were near the crossing, and blowing off steam. The cars interfered to some extent with the view of the westbound track, and the discharge of steam by the engines affected somewhat the ability to hear the usual signals of an approaching train. Whether the deceased stopped at the best point to look for the approach of a west-bound train was a matter in dispute, under the evidence submitted by the contending parties. It was therefore clearly a question for the jury.

We cannot say that the learned court erred in its answer to the defendant's fourth point. The point entirely ignored the condition at and in the immediate vicinity of the crossing, to which reference has already been made. For this condition the defendant company was responsible, and, in view of it, we think the answer to the point was unobjectionable. Nor can we discover any error in the ruling complained of in the fifth specification. There was, as we have already seen, evidence from which it might be fairly inferred that the bell at the crossing was out of order, and failed to give notice of the

LOHR v. BOROUGH OF PHILIPSBURG.
(Supreme Court of Pennsylvania. Jan. 7, 1895.)
NEGLIGENCE-EVIDENCE-DEFECTIVE SIDEWALKS
-TESTIMONY AT FORMER TRIAL.

1. In an action against a city for injuries caused by a defective sidewalk, evidence of the condition of the sidewalk two days after the injury is admissible where there was no change

therein.

2. A city cannot be held to have constructive notice of defects in a sidewalk which are not observable by persons passing over the same.

3. The testimony of a witness on a former trial is only admissible as affecting the witness' credibility.

Sterrett, C. J., dissenting.

Appeal from court of common pleas, Centre county; A. O. Furst, Judge.

Action by Isabella Lohr against the borough of Philipsburg for personal injuries caused by a defective sidewalk. There was a judgment for plaintiff, and defendant appeals. Reversed.

John G. Love, W. D. Crosby, and Harry Keller, for appellant. C. P. Hewes, Ellis L. Orvis, and C. M. Bower, for appellee.

MCCOLLUM, J. It was essential to the plaintiff's recovery in this action that she should show by competent evidence a defective and dangerous condition of the sidewalk which was the sole cause of the injury she received, and of which the borough had actual or constructive notice before the accident. We think that the evidence descriptive of the condition of the sidewalk two days after she fell upon it was admissible. It is not alleged that there was any change in its condition from the time of her fall to the time of the examination of it by Lohr

and Emery. If the condition they described existed when they examined it, there would be a reasonable and natural inference that it existed at the time of the accident. The intervening time of itself would make no perceptible change in it. Whether the borough had notice of such a condition is another matter. There can be no implied or constructive notice of it unless it was so obvious that the borough officers, in the exercise of a reasonable supervision of the sidewalk, ought to have seen it. Let us consider the question of implied notice in the light of the evidence, and determine whether the borough is liable on this ground. The plaintiff and all her witnesses who testified to the appearance of the walk before the accident agree that it was near the ground, and level; that the boards were in place, and apparently sound; and that in walking over it there was no noticeable defect in it. The plaintiff and Mrs. Marin passed over it twice on the day of the accident. The former said she did not observe anything wrong with it, and the latter said there was nothing to indicate that there was a loose board in it, and that it appeared perfectly safe. Jeremiah Funk testified that he was over the walk a day or two before the accident, and that there was no observable defect in it then. Surely, in this evidence there was nothing to charge the borough with notice that the walk was out of repair. Nor do we think that the loose board, which, two or three weeks before the accident, tripped Mrs. Perks, under the circumstances testified to by her, was such notice, because the occupant of the abutting premises, who passed over the walk several times daily, put it in proper position, and nailed it to the stringers as soon as he discovered it was out of place, and Mrs. Perks was over the walk several times between that occurrence and the accident in question, and did not observe any defects in it. When this case was here before-156 Pa. St. 246, 27 Atl. 133-we decided in an opinion by our Brother Mitchell that it "was holding the borough to too strict a rule of responsibility" to require that its officers should make an examination of the sidewalk by going upon and testing it to discover, if by the eye they could do so, whether it was defective or not. We then distinctly held that the borough was not obliged to seek for defects, and that the measure of its duty was to observe such as a reasonable supervision disclosed. There is no presumption arising from the occurrence of April 29th that the duty of supervision and observance was neglected, nor is there anything in the testimony of Lohr and Emery which can justly charge the borough with notice of the condition they described. They were seeking for defects, and their discoveries were based upon tests the borough was not required to make. Such tests, if frequently resorted to, would render the ordinary board walk unsafe in a short time, as the obvious tendency of them would be to loosen the boards, and

make possible just such accidents as the one in question. All the defendant's witnesses who testified to the observable condition of the walk prior to the accident said that there was nothing in the appearance of it to indiIcate that it was unsafe, or in any way defective. The plaintiff offered no evidence to show that the borough had actual notice that it was out of repair at any time previous to the 29th of April. True, there was an attempt made in rebuttal to contradict Funk, George, and Doyle by excerpts from their testimony on the former trial, but these were offered and received to discredit their testimony on the trial under review, and this was the only purpose for which they were admissible. They furnished no basis for a finding that the borough had notice that the street was out of repair in April, 1890. There is nothing in the report of the case in 156 Pa. St., 27 Atl., to indicate that the question now before us on the borough's fourth point, and the answer to it, were considered or raised by any specification on the first appeal. A careful study of the evidence in the light of the principles stated in the former decision has satisfied us that there is nothing in it on which to convict the borough of negligence in connection with the supervision of the sidewalk on which the plaintiff fell. We therefore sustain the sixth specification of error. Judgment reversed.

STERRETT, C. J., dissents.

SAALFIELD v. MANROW. (Supreme Court of Pennsylvania. Jan. 7, 1895.)

MORTGAGES-CONSIDERATION.

Where a father gave to the owners of money embezzled by his son a note, secured by mortgage, for the amount thereof, it is error to instruct, in an action on the mortgage, that there was no consideration therefor; the evidence warranting a finding that they were given at the request of the son, and that it was understood that the giving of them suspended any action against the son for the debt till maturity of the note.

Appeal from court of common pleas, McKean county; T. A. Morrison, Judge.

Action by Henry Saalfield against Patrick Manrow on a mortgage given by defendant, and assigned to plaintiff. Judgment for deReversed. fendant. Plaintiff appeals.

Edward McSweeney and H. McSweeney, for appellant. R. B. Stone, for appellee.

MCCOLLUM, J. James Manrow was a clerk in the law office of McSweeney & Byles, who were the agents of Baker & Whitehead for the collection of their rents. Manrow, acting for McSweeney & Byles, collected these rents, and appropriated $780.13 of the same to his own use. When the embezzlement was discovered, he admitted it, and called upon his father, the defendant in this case, and said

to him "that he had got into trouble in the office about some money matters, and wanted him to go down and see what he could do about it." The defendant complied with his son's request, and his visit to the office resulted in his giving his note to Baker & Whitehead for the sum embezzled, and his mortgage to secure the same. The note and mortgage were assigned by the payees and mortgagees to the First National Bank of Bradford, which assigned them to the plaintiff. The defendant alleges that he was induced to give the bond and mortgage by a promise which was not kept, and by a threat to arrest and imprison his son if he did not give them. He testified on the trial that Byles, in the presence of Baker & Whitehead, explained to him the nature and amount of James' defalcation, and proposed that he should give his note and mortgage for it, payable in four months; that he protested his inability to pay it, and Byles then said he would not have to, as McSweeney could furnish James employment "at fifty dollars a month and found," and that Baker & Whitehead would take his note as security that James would do the work and turn the money over to them, and that they would extend the note from time to time to enable James to pay it. He testified, further, that Byles said, if he did not do this, he would prosecute James for embezzlement. He testified, also, that he gave the bond and mortgage on the terms or conditions stated by Byles. He then testified that neither McSweeney nor Byles furnished any employment for James after the bond and mortgage were executed, He called Baker & Whitehead to corroborate him in his statement relating to the employment of James by McSweeney, but their evidence clearly negatived his claim in this respect. Byles testified that he made no threat to prosecute James, or promise to procure employment for him. In this he was corroborated to some extent by the testimony of John Finnerty.

The learned court below directed the jury to find for the defendant, on the ground that there was no consideration for the mortgage, and this instruction constitutes the complaint of the plaintiff on this appeal. Was it authorized by the evidence? We think it was not. It is true that the note and mortgage were given for the debt of James, but it might fairly be inferred from the testimony that they were given on his request, and that the giving of them suspended the right of action for it at least four months. According to the defendant's own version of the transaction, it afforded James an opportunity to pay in 20 monthly installments a debt then due.

If the transaction involved an agreement by the mortgagees to extend the time for payment of the debt, in order to enable James to pay it, such agreement would constitute à sufficient consideration for the mortgage and the note secured by it. We think the evidence warranted a finding that there

was an understanding between the parties which precluded the mortgagees or their assignees from bringing suit against James for the debt before the defendant's note for it matured. Besides, it is to be remembered that the action is upon the mortgage,-a sealed instrument, which imports a consideration. An illegal consideration, or the failure of a lawful one, may constitute a defense to it; but it lies on the mortgagor, who alleges either, to establish it by competent evidence. In the case before us an illegal consideration was not shown. It follows from these views that the learned court erred in holding that there was no consideration for the mortgage, and directing the jury to find for the defendJudgment reversed, and venire facias de novo awarded.

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1. Act June 11, 1891, providing that when a party to any contract, etc., is dead, the surviving party to such contract, who has an adverse interest in an action thereon, shall be a competent witness to any relevant matter, "if and only if" certain conditions exist, creates merely an exception to the general rule, under which such witness is incompetent, and hence the offer of such witness' testimony must show that such conditions exist.

2. Defendant agreed with K. to assume and pay a certain judgment against K. and in favor of C., or so much thereof as then remained unpaid, or "less any amount thereof that said K. may be liable to pay himself." The subsequent actions of the parties showed that it was their understanding that defendant should pay the entire amount of the judgment which remained unpaid. Held, that defendant was liable to K. for any sum K. was forced to pay on the judgment.

Appeal from court of common pleas, Centre county; A. O. Furst, Judge.

Action by Syddenham Krumrine, executor, etc., against P. F. Grenoble and others. There was a judgment for plaintiff, and defendants appeal. Affirmed.

The articles of agreement mentioned in the opinion were as follows: "Memoranda of agreement made and concluded this 20th day of March, A. D. 1888, by and between Henry Krumrine, of Gregg township, Center county, Pennsylvania, of the first part, and P. E. Grenoble, Eve Weaver, John Bossman and Daniel Bartges, of the same place, of the other part, witnesseth: That for and in consideration of the premises hereinafter mentioned, and the said party of the first part hereby agree to sell and transfer and, by these presents, does sell and transfer unto the said parties of the second part all his stock of merchandise, consisting of dry goods, notions, groceries, queensware, hardware, glassware, clothing, hats, caps, boots and shoes, drugs, tinware, and everything contained in the store room formerly occupied by I. J. Grenoble; together with all fixtures appurtenants also all the books, ar

counts, notes and evidences of indebtedness of the said Henry Krumrine arising out of the said business, contracted since the said party of the first part purchased from the Pennsvalley Banking Company; also the lease for the rooms now occupied by the said party of the first part and the dwelling house and buildings connected therewith and all and every the property purchased by said Krumrine from the Pennsvalley Banking Company and formerly owned by the said I. J. Grenoble. For and in consideration of which, the said parties of the second part agree to assume and pay a certain judgment against Henry Krumrine and in favor of the l'eunsvalley Banking Company, or so much thereof as now remains unpaid, or less any amount thereof that said Krumrine may be liable to pay himself; and also agree to pay any and all indebtedness belonging to the store or connected therewith contracted since said Henry Krumrine took charge of said store, and save and keep him harmless from the payment thereof. Possession to be given at once and the rent from now on to be paid by the said parties of the second part."

John G. Love and C. P. Hewes, for appellants. James A. Beaver, John W. Gephart, and John M. Dale, for appellee.

MCCOLLUM, J. The ruling complained of in the first specification of error was not excepted to on the trial, and the directions in the opinion and order allowing an exception nunc pro tunc were not complied with. The rejected offer was incomplete, because it failed to show what was proposed to be proven by the witness, whose competency to testify to matters occurring in the lifetime of Henry Krumrine was dependent upon and qualified by the act of June 11, 1891.1 That act created an exception to the general rule under which the witness was incompetent to testify to such matters, and the offer should have contained enough to enable the court to determine whether it was within the exception. But we think it did not, and for that reason we cannot convict the court of error in rejecting it. The question whether

1 Act June 11, 1891, provides that, although a party to the thing or contract in action may be dead, or may have been adjudged a lunatic, and his right thereto or therein may have passed, either by his own act or by the act of the law, to a party on a record, who presents his interests in the subject in controversy, nevertheless any surviving or remaining party to such thing or contract, or any other person whose interest is adverse to the said right of such deceased or lunatic party, shall be a competent witness to any relevant matter, although it may have occurred before the death of said party, or the adjudication of his lunacy, if, and only if, such relevant matter occurred between himself and another person, who may be living at the time of the trial, and may be competent to testify, and who does so testify upon the trial against such surviving or remaining party, or against the person whose interest may be thus adverse, or if such relevant matter occurred in the presence or hearing of such other living or competent person.

it was competent to prove by Bossman the matters which the appellants now say they intended to prove by him is not on this record, and we do not decide it. The writer, however, speaking for himself alone, is of the opinion that the act of 1891 merely qualifies the surviving party to testify to relevant matters occurring between or in the presence of himself and another person, who is a competent witness, and has testified against him in reference to such matters. In this view of the act, we discover nothing in the testimony of E. C. Krumrine which qualifies Bossman to testify to matters occurring in the lifetime of Henry Krumrine.

The learned court below held that, under the agreement between the parties, the defendants were liable for the amount Krumrine owed on the Penns Valley Bank judgment, and that so much thereof as they had not paid was recoverable in this action. This ruling involved a construction of the agreement and a consideration of the pleadings. The undertaking of the defendant was "to assume and pay for a certain judgment against Henry Krumrine and in favor of the Penns Valley Banking Company, or so much thereof as now remains unpaid, or less any amount thereof that said Krumrine may be liable to pay himself." The agreement appears, by its date, to have been made on the 20th of March, 1888, and the face of the judgment was then $9,450. On the 12th of April, following, it was reduced, by writing filed, to $8,037; but, whether this reduction was affected by payments made by Krumrine before or after the agreement was written, the evidence does not inform us. It is probable, however, that the payments by which the judgment was so reduced were made before the agreement, and that the application of them to the judgment was made afterwards. The undisputed testimony is that the defendants made their note to the bank for $8,000, which the latter was requested, but declined, to accept and credit, upon the judgment; expressing, however, a willingness to accept their note for $6,000 in satisfaction of that amount of it. The defendants made their note for the last-mentioned sum, which was accepted by the bank in conformity with its offer. This payment left a balance of $2,037, for which Krumrine was still responsi ble to the bank, and which his estate subsequently paid. But the defendants recognized their Jiability to him for this balance, and let him have, from time to time, cash and merchandise on account of it. Moreover, they settled with him at one time, and, finding that they then owed him $1,350 on the judgment, they gave their note for it, a copy of which is attached to the statement in the case. All these matters are established by credible and uncontradicted evidence, and from them it appears that the court's construction of the agreement accords with the understanding of the parties to it. As this construction gives effect to the mani

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