(7) That, in addition to the compensation allowed to the plaintiff for the value of her interest in the land taken, the jury are to take into con

testimony has been received also in regard to the | taken by the Railway Company for the purposes manner in which the road traverses the land; the of their road, then the measure of damages for cost of necessary fencing; the cutting off of plain- the appropriation of such land will be the fair tiff's supply of water for her residence, and the annual value of the land so actually taken, durconsequent inconvenience to her; the cutting of ing the period of her life expectancy, qualified the land in the vicinity of the road into small on the principle of present payment, as of the fields; the inconvenience resulting from the road time of the injury. Answer. We affirm this passing between the house and the out-buildings; point. the cutting off of springs which supplied some of the fields; the draining of the barnyard into the railroad cut. "Now, gentlemen, all this evidence was ad-sideration, and make just allowance, under the mitted because, in the judgment of the Court, it evidence, for injuries done to the plaintiff's inall shed more or less light upon the question terest in the land not taken; the cutting off the which you are to decide. That question is, what, communications of the farm, of the barnyard if any, damages is the plaintiff entitled to for in- and barn; the increased difficulties of access and jury to her life estate, resulting from the construc- inconvenience caused by the cut through the tion of defendant's road through the land devised land; the shape and position of the fields; the to her for life? Where the plaintiff owns land in cutting off of water; the obstructing of flow of fee simple, the measure of damages has been held manure-water into the meadow, etc. Answer. by the Supreme Court in a great number of cases We answer this in the affirmative. to be, the difference between the value of the land before the road was built and its value after the road is finished. By analogy the measure of damages in this case would be, the difference in value of the plaintiff's life estate before and after the road was built. The difficulty is how to apply this rule. It will be for you to do so; and to ascertain from all the evidence whether or not the value of the life estate was enhanced by the building of the road; and, if you find it was so enhanced, then you will set that advantage off against any actual damage done to the plaintiff's life estate. . . . In determining this question you will allow the plaintiff for the value of her life estate in the 2.7 acres appropriated; also for what damages you may think she is entitled to on account of the various inconveniences of which I have spoken. You will then determine whether her life interest has been enhanced by the construction of the road, and, if so, to what extent. ... Evidence has been laid before you of the life expectancy of the plaintiff at the date of the construction of the road.

Defendant asked the Court to charge, inter alia: (5) That the plaintiff is not entitled to recover any damages arising from inconvenience of crossing the defendant's tracks, or damages that may be done by sparks from defendant's locomotives, and that any estimate made by the witnesses in this case based upon such inconveniences must be disregarded by the jury, it being in evidence that the defendant has already constructed a good crossing upon this property. Answer. This point is denied. The plaintiff is entitled to damages for the inconvenience resulting from the crossing and for inconvenience of access to the farm.

(8) That in estimating the damage to the plaintiff's interest in this land the jury are to take the fair market value of said interest in the entire property at the time of the appropriation by the defendant unaffected by the expected location of the railway, as compared with the fair market value of said interest in said property taken as a whole immediately after the completion of the defendant's railway through it; and that the difference in these values is the true estimate of the damage sustained by the plaintift. Answer. The

"She was then 52 years of age, and her expectation of life was at that time 18.4 years. Now this evidence was admitted in order to fur-eighth point is affirmed. nish you an additional mode or rule by which to (9) The plaintiff having shown that her exestimate the damages in case you should find pectancy of life at the time of the completion of damages for the plaintiff beyond advantages. It defendant's railway through this property was 18 is also applicable to an estimate of the value of years, and claiming damages in this issue for a the life estate." term of that extent; the jury are to find whether this property, taken as a whole, would rent for as much for such term immediately after the construction of the defendant's railway, as affected

Plaintiff asked the Court to charge, inter alia: (5) If the jury find that the plaintiff as tenant for life under the husband's will was in the actual possession and occupancy of the land at the time by such construction, as it would have rented for, the defendant company entered thereon and con- | for such term, before the location of defendant's structed their railway, and that there was no ex- railway; and, if they believe from the evidence isting tenancy or leasehold of any part thereof that it would rent for as much after as before,

their verdict must be for the defendant. An- her lessee to recover for injuries to his use and

swer. The true test is the market value, of which the rental value is evidence.

Verdict and judgment for plaintiff $1349.58, whereupon defendant took this writ, assigning for error the answers of the Court to the 5th and 7th points of plaintiff and the 5th and 9th points of defendant as above given.

enjoyment of the land; but she was in actual occupancy and possession, and thus united all claims which under other holding might have been recovered by life tenant and lessee.

No exception was taken to the admission of evidence of the aggregate value of a term running eighteen years into the future, and the defendant had the benefit of their point to the jury.

A. M. Todd, for plaintiff in error.

By reason and analogy the measure of dam-But no rule is more firmly established in such ages to a life tenant's interest is the difference cases as this than that which requires all estimates betwixt the rental value of the term before the of values to be made as of the time of the injury. road was built, and its value after the road is finished.

Thoburn's Case, 7 S. & R. 411.

Shrunk v. Schuylkill Nav. Co., 14 S. & R. 71. Zimmerman v. Union Canal Co., 1 W. & S. 346. And where the amount of damages depends on the length of a life in being, the rule is to ascertain the value for a year, as of the time of the injury, and to give as damages its present worth, according to the expectation of life, as

Hornstein v. A. & G. W. R. R. Co., 1 Sm. 87. Turnpike Road v. Brosi, 10 Harris, 29. This being the proper question for the jury, it was of no importance what the 2.7 acres were worth annually if the rental value of the 97.3 acres was equal to or greater than the rental value of the 100 acres before the location of the ascertained by mortuary tables of established railroad. The unqualified affirmance of plain-reputation. tiff's 5th and 7th points established a different rule, as is manifest from the fact that the weight of testimony proved the rental value to be as great or greater after the construction of the road.

The construction of the crossing was a full compliance with the law, and no damages can be claimed for the trouble or inconvenience of crossing the tracks.

Watson v. P. & C. R. R. Co., I Wright, 473. E. P. R. R. Co. v. Hiester, 4 Wright, 53. Patten v. N. C. R'y Co., 9 Casey, 426. Boyd et al. v Negley, 4 Wright, 377. True the Court charged the jury that the difference in market value of plaintiff's interest before and after location of the road must be considered by them, but the refusal of defendant's 9th point tended to confuse the jury; and the denial of that point, coupled with the affirmance of plaintiff's 5th and 7th points, gave two rules for their guidance. If it be urged that the answer to defendant's 8th point is correct (as it is, so far as it goes), then the second rule is clearly incorrect. If the jury ignored the correct and adopted the incorrect rule, the case stands as if no correct rule had been given. That the jury adopted the rule as insisted upon by plaintiff below is apparent from a glance at the amount of the verdict, and segregation of it to the several elements of damage in accordance with plaintiff's testimony.

Thomas H. Baird (with him J. L. Judson),


The vice of the argument on the other side is that it seeks to obliterate all distinction between a life tenancy and a term for years. If plaintiff had rented the property and pursued some other Occupation, perhaps the rental value would have furnished the measure of her damages, leaving

Macon & Western R. R. Co. v. Johnson, 38 Geo. 409.

How v. How, 48 Maine, 428.

Sedgwick on Damages, 460, note 3.

And see Thompson v. Stevens, 21 Sm. 161, 169. While no damage can be allowed for crossing tracks laid at grade, a different rule prevails when they are laid upon embankments or in cuts.

Railroad Co. v. Boyer, 1 Harris, 497.
Watson v. P. & C. R. R. Co., I Wright, 469.
W. P. R. R. Co. v. Hill, 6 Sm. 460.

W. & R. R. R. Co. v. Stauffer, 10 Sm. 374.
Hoffer v. Pa. Canal Co., 35 Leg. Int. 357.
No claim was made for dangers of crossing, or
for possible loss from fire.

Nov. 28, 1878. THE COURT. In the Borough of Harrisburg v. Crangle (3 W. & S. 460) it is held that, where there is a life estate and a remainder in fee, each owner is entitled to damages for his own estate and security. Hence it was proper for the Court to lay down a rule as to the valuation of the life estate in this case as an independent interest entitled to damages. We cannot say that the net annual value of the premises, multiplied by the years of the life tenant's expectancy of life, and reduced by calculation to a present cash value, is an incorrect mode of determining the value of the life estate as compared with the value of the remainder in fee. This is all we understand the Court did in the answers to the points. But the Court gave the true rule for valuing the damages as a whole, which is the difference between the value of the property before the making of the road and its value after the road is made, and as affected by it. Of this difference the life tenant is entitled to the proportion of the whole which the value of the life estate bears to the whole difference. In that way the owner of each estate is paid his just proportion.

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Principal and agent-Wrongful act of agent Principal not responsible therefor, unless done within the scope of the authority conferred on the agent-Railroad company-Unauthorized act by brakeman, resulting in personal injury to a trespasser on coal train-Damages.

The defendants submitted, inter alia, the following points: (2) It was not within the score throw coal at any person upon the train. (3) of any brakeman's authority or employment to It was not within the scope of the employment or authority of any employé of defendants, whose conduct is claimed to be the cause of the injury complained of, to admit or exclude persons from the train. Answer. It is for the jury to decide upon the evidence whether the brakeman or other employé was acting within the scope of his authority or not. If it was part of his duty as an employé of the company to keep boys from riding in the manner stated on the train, he would be acting within the scope of his authority in driving the boy off, and the company

Error to the Common Pleas of Bradford is liable for his act, if he did it in a violent, County. negligent or unsafe manner. The defendants filed an exception to this answer before the jury went out.

Verdict for the plaintiff for $1000 and judg ment thereon. The defendants took this writ, assigning for error, inter alia, the answer to the above points.

E. Smith, for the plaintiffs in error.

The Towanda Coal Company is the lessee of the Barclay Railroad, which it uses mainly for The evidence was uncontradicted that the the transportation of coal from the Barclay brakeman had nothing to do with admitting mountains to Towanda. Henry Heeman, the passengers or excluding intruders. If he threw plaintiff, a boy about seven or eight years of the coal-dust at the plaintiff, he acted entirely age, along with another boy jumped on one of out of the line of his duty, and the company is the trains of this road just before it left the not responsible for the consequences of his act. Towanda station. Heeman, when on the wit- The Court therefore clearly erred in submitting ness-stand, said that after the train started one of the question of the company's responsibility to the brakemen, in order to drive him off, threw the jury. pieces of coal and coal-dust at him; that some of the latter got into his eyes, so that, to use his own words," he could see but a little;" and

Railroad Co. v. Donahue, 20 Sm. 119.
Flower . Railroad Co., 19 Id. 210.
Snodgrass v. Bradley, 2 Grant, 43.
2 Hilliard on Torts, 422.

A principal is not liable for the wrongful act of his agent unless the latter is acting within the line of his duty and the scope of his employment."

The brakeman of a coal train threw coal and coal dust at a boy to drive him from the train. The evidence was uncontradicted that he was employed merely to assist in running the train, and had nothing to do with admitting or excluding passengers:

Held, that the question of the railroad company's responsibility for the consequences of the brakeman's act was wrongly submitted to the jury.

Trespass on the case, by Henry Heeman, a minor, by his next friend Hiram Heeman, against the Towanda Coal Company, to recover damages for the loss of the plaintiff's leg. The material facts disclosed by the evidence were as follows:


that, therefore, in attempting to get off the train, he slipped and fell on the rail, and several of the cars passed over one of his legs. The leg was very badly crushed and had to be immediately amputated. The railroad employés on the train denied that any coal or coal-dust was thrown at the boy, but said that when they saw him on the cars they told him to get off, but did not notice his fall or injury, until, after the whole train had passed, he was seen lying on the track by the rear brakeman. The plaintiff called no witnesses to prove that the brakeman alleged to have thrown the coal had any authority to drive intruders from the train. The defendants, however, called J. B. Judd, the assistant superintendent of the road, who testified: "The duty of the conductor is to take charge of the running of the trains, and he may admit or exclude passengers therefrom; the brakemen have nothing to do with passengers; they do the general business of the train as far as labor is concerned-putting on

brakes and the general work of handling a train

of cars."

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May 6, 1878. THE COURT. Although the point was not directly made to the Court that there was no evidence tending to prove that it was within the line of a brakeman's duty to remove trespassers or other persons from the cars of the defendants, yet, under the particular circumstances disclosed by this record, the question was sufficiently raised by the second and third points, which should have been affirmed. In substance they were prayers for instructions to the jury that it was no part of a brakeman's duty to throw coal at any person on the train to which he was attached, or to admit persons to, or remove them from the train. A careful examination of all the testimony has shown that not a word contained in it tended to prove that the brakeman whose conduct is complained of, in the cruel and wanton assault he made on the plaintiff, was acting in pursuance of any authority conferred upon him. The only affirmative proof was precisely in the opposite direction. J. B. Judd, the assistant superintendent of the defendants, said: "The duty of the conductor is to take charge of the running of the trains, and he may admit or exclude passengers therefrom; the brakemen have nothing to do with passengers; they do the general business of the train as far as labor is concerned-putting on brakes and the general work of handling a train of cars." The plaintiff, at the time of the accident, was a boy seven or eight years old. While a train on the Barclay Railroad was stopping at the station in Towanda, he, with one or two other boys, climbed upon the cars. After the train started, one of the brakemen drove him off by throwing pieces of coal at him, some of which struck him in the face, partially blinding him. In attempting to get off he slipped, because, as he said in his testimony, he "could not see but a little," and falling on the rail, the moving cars passed over him and so crushed one of his legs as to make amputation necessary the same day. In their charge the Court submitted the question of the brakeman's authority to the jury, who rendered a verdict for the plaintiff.

It was said by MAULE, J., in Mitchell v. Crassweller, 13 C. B. 247, that a master is liable for the act of his servant, "even though the servant, in the performance of his duty, is guilty of a devia

tion, or a failure to perform it in the strictest and most convenient manner. But where the servant, instead of doing that which he is employed to do, does something which he is not employed to do at all, the master cannot be said to do it by his servant, and therefore is not responsible for the negligence of the servant in doing it.” Thus in the leading case of McKenzie v. McLeod (10 Bingham, 385), the master was held not to be liable for the negligence of a servant who burned a house down in trying to cleanse a chimney, it being shown that the servant's duty was not to cleanse the chimney, but to light the fire. The legal rule was stated in the opinion of ALDERSON, J., in that case, to be, that the act of the servant is the act of the master where the duty is defined by precise orders; and where something is directed to be done, and the manner of doing it is left wholly to the discretion of the servant, the judgment exercised may be considered the judgment of the master, and he must be answerable. "But," the Judge added, "where he has neither ordered the thing to be done, nor allowed the servant any discretion as to the mode of doing it, I cannot see how, in common justice or common sense, the master can be held responsible." Where a coachman, after having used his master's horse and carriage in going upon an errand for his master, instead of taking them to the stable, used them in going upon an errand of his own, without his master's knowledge or consent, and while doing so negligently ran into and injured the plaintiff's horse, it was ruled that the master was not liable. (Sheridan v. Charlick, 4 Daly, 338.)

The same rule has been applied in Williams v. Jones (3 Hurlstone and Coltman, 256); in Storey v. Ashton (L. R. 4 Q. B. 476); and in the Pennsylvania cases of The Philadelphia, Germantown and Norristown Railroad Company v. Wilt (4 Wharton, 143); Snodgrass v. Bradley (2 Grant, 43); and Flower v. The Pennsylvania Railroad Company (19 P. F. Smith, 210).

Upon the facts developed on the trial, although the plaintiff had no right to be on the cars, the jury would have been justified in finding, as they did, such reckless, gross, and culpable negligence as to render the defendants liable for damages, if the brakeman had been shown to have been acting in the line of his duty and within the scope of his employment. With no evidence that he was so acting, and with the testimony of the assistant superintendent to the contrary, it was a mistake to submit the question whether the wrongful act was or was not done in the exercise of a duly delegated authority. Judgment reversed, and venire facias de novo awarded.

Opinion by WOODWARD, J.

March 27, 1878. | for the defendant, unless it should be found that the defendant participated in making the payments, but in case it should be so found then to render a verdict for the plaintiff.

The jury brought in a verdict for the plaintiff for $226.26. The Court subsequently entered judgment for the plaintiff upon the verdict. Clark thereupon took this writ, assigning for error, inter alia, the action of the Court in refusing to affirm his point and entering judgment for the plaintiff on the point reserved.

July '75, 48.

Clark v. Brun et al., Administrators. Statute of limitation—Evidence necessary to remove its bar-Effect of indorsements of payments on a joint promissory note.

General indorsements of payments on a joint promissory note, made by the holder, are not evidence sufficient to remove the bar of the statute of limitations, unless it is proved in addition that the payments were made by the maker sought to be charged.


Error to the Common Pleas of Chester County. Assumpsit on a promissory note, brought November 4, 1874, by H. B. Brun and J. R. Hinkson, administrators of E. W. Hinkson, against F. H. Groce and M. T. Clark. Judgment was entered against Groce by default for want of appearance and an affidavit of defence. Clark pleaded non-assumpsit, non-assumpsit infra sex annos, etc.

At the trial the plaintiff put in evidence the following note :—

Highland, March 30, 1867.
One year after date we promise to pay to Eli W. Hink-
son, or order, the sum of four hundred dollars, with in-
terest, without defalcation, for value received.


On the back of the note were these indorsements:

Rec'd March 25, '68 on the within one year's interest.
Rec'd March 16, '69 on the within one year's interest.


Rec'd on the within one year's interest.
Rec'd January 11, '71 on the within one year's interest.
Rec'd April 9, '72 on the within

interest for one year.

Rec'd Sept. 1, 1872 on the within one hundred and two

April 4, 1878. THE COURT. The judgment in this case overturns an express decision, and takes a step backwards from the modern doctrine upon the statute of limitations. Groce and Clark gave their joint note to Hinkson; Hinkson indorsed payments of interest and principal on the note within six years from its date; but failed to specify by whom the payments were made, and no evidence was given to show that any payfacts was the bar of the statute of limitations rement was made by Clark. Upon this state of moved as to Clark? The simple proposition is that a general indorsement by the plaintiff will take the case out of the statute as to all the parties. This contravenes the principle of Shaffer v. Shaffer (5 Wright, 54), opinion by Judge STRONG, that it is the payment which raises the follow-presumption of an acknowledgment of the debt, the indorsement being only evidence of the paytwenty-ment, the time of which must be otherwise proved. Clearly, he only who made the payment can be presumed to acknowledge the debt. To assert that because one man pays another acknowledges, is so palpably illogical that I am at a loss to understand the ratiocination. If we observe the source of the evidence, the case is still worse. This source is the party himself. Concede that his entry of payment being against his interest when proved to have been made within


Rec'd March 31, '73 on the within eighteen dollars.

The plaintiff offered evidence that the above signatures were in Hinkson's handwriting, and rested.

The defendant put in evidence the two ing receipts:

April 9th, 1872. Received of F. H. Groce

four dollars, interest on a promissory note.

J. S. Futhey, for the plaintiff in error. Payments indorsed on a joint promissory note and are insufficient to remove the bar of the may have been made by only one of the makers,

statute as to any other of them, unless proved to
have been made by him.
A. P. Reid, contra.

March 31st, 1873. Received of F. H. Groce eighteen dollars on promissory note. ELI W. HINKSON. The defendant submitted the following point: Upon the evidence the plaintiffs cannot recover, and the verdict must be for the defendant. The Court reserved the point, and submitted the case to the jury, with instructions to render a verdict

Indorsements of payments on a promissory note, made by the holder against his interest, are evidence against a single maker that the payments were made by him, because it was his duty to make them, and the law presumes that he fulfils his duty. But it is no less the duty of both the makers of a joint promissory note to pay the debt created by it, and from similar indorsements of payments thereon, the same inferences against both are logical and necessary.

Bear v. Patterson, 3 W. & S. 233.
Craddock v. Armor, 10 Watts, 258.

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