last car, taking tickets. McCarthy testified that | from the North Philadelphia Station, a siding he "told him that that fellow up in front was gone. He wanted to know who. I said the fellow that sat opposite me." By this time the train was at a signal tower known as N. G., which is on the hill over the tunnel on the east drive of Fairmount Park at the east end of the bridge crossing the Schuylkill river. In order to inform himself as to what had happened, the conductor immediately returned to the smoking car, and searched for baggage or other belongings of the deceased, and inquired of other passengers whether they had seen him. He did not succeed, however, in learning what had become of Mott, and whether he had stepped from the train as it was leaving the North Philadelphia Station or had fallen off. By this time the train was at Signal Tower No. 3, which is near the Zoological Garden or the tunnel on the west side of the Schuylkill river, approaching the main line tracks, and the conductor said to McCarthy, "There is nothing I can do now, and I will report it at the West Philadelphia Station." Within a few seconds this station was reached, and the conductor immediately informed an usher that there was a report that a passenger had fallen off at the North Philadelphia Station. This was at 9:06 p. m., and at 9:10 the train reached Broad Street Station, and the conductor notified the station master to the same effect within two or three minutes after arrival.

is the northernmost track, and the track upon
which the train was proceeding toward Phila-
delphia is the next track to the south.
The contention of the plaintiff is that the
defendant is liable for Mott's death, if after
knowledge or reason to believe that he was in
a place of peril on their tracks, they failed to
exercise reasonable care to save him from death
or further injury. It does not appear however,
that it was the duty of the conductor under the
circumstances of the case, to stop the train.
Nor does it appear that Mott's rescue could have
been made without peril to the other passen-
gers. It is not shown that other trains could
have been prevented from passing until Mott
was safely off the tracks. The conductor did
not have notice that Mott had fallen from the
moving train in a dangerous place. Moreover,
it is plain that the decedent was guilty of con-
tributory negligence, for it is negligence to
stand on the platform steps of a moving train,
and it was not shown that the water-closet op-
posite Mott's seat was locked. No evidence of
negligence on the part of the defendant was
shown. It is a question of careful railroad
management, and it was not shown that the
movement of the trains between West Philadel
phia and North Philadelphia Stations could
have been suspended from the time the re-
ported disappearance of Mott was announced to
the conductor. No evidence was produced by
the plaintiff to show that it was improper rail-
road management not to have suspended the
passage of all trains in that section.. Nor is a
connection proved of the defendant's negligence
with Mott's death. It was not shown that
Mott could have been found in time to save his
life, and the plaintiff's contention of alleged
negligence cannot be sustained without the use
of many inferences.

Argued before FELL, C. J., and MESTRE-
ZAT, POTTER, ELKIN, and MOSCHZIS-
KER, JJ.

Thomas F. Gain and Alfred L. Cameron, both of Philadelphia, for appellant. John Hampton Barnes, of Philadelphia, for appellee.

About 9:45 p. m. several boys were at Twenty-Second street and Sedgely avenue on a vacant lot on the north side of the railroad tracks near Fite & Arbelo's lumber yard, which is on the south side of the tracks. The boys were about a quarter of a square from the tracks, and while they were playing on or about a log on the lot, they heard cries or moans coming from the east, from the direction of Fite & Arbelo Company's yard. They walked toward the tracks and saw a man about half a square from the sawmill walking on the tracks from the west, and, becoming frightened, they returned to the lot. Opposite Fite & Arbelo's lumber yard, are four tracks, the southernmost being known as No. 1 and the northernmost No. 4, and two are for passenger travel and two for freight. A freight train passed eastward on track No. 2, and the boys returned to the track towards the place from which the cries or moans came, and by the light from the windows of a passenger train also passing east, they PER CURIAM. A clear and concise statesaw Mott's dismembered body. It was on the ment of the facts developed at the trial apsecond rail as the tracks are approached from pears in the opinion of the learned judge of the south. The boys then sought a policeman, and found two at Marjie street and Sedgely the common pleas dismissing the motion to avenue, one of whom fixed the time at 9:35. take off the nonsuit. The only ground on One went with the boys to where the body lay, while the other called the patrol, which shortly arrived. The officer in charge of it states that he received the patrol call at 10:30. Before the patrol wagon arrived, a track walker of the defendant company appeared, and assisted in the removal of the body. It was shown that at this point between 9 p. m. and 10:50 p. m., on the night of the accident, 16 trains passed on all four tracks. From the signal tower known as G. D. at the North nothing as to the actual occurrence. Philadelphia Station, to the place opposite Fite it was completed the train was at a place & Arbelo's lumber yard, where Mott's body where it could not be stopped with due rewas found, the distance is 3,000 feet, and one mile and 2,280 feet east of N. R. From the signal tower G. D. to the signal tower at the east end of the bridge known as N. R., the distance is two miles.

The record shows that this section of the defendant's road is protected by the automatic block signal system, and that the presence of the train automatically sets an absolute stop signal for the block in back of the train and a caution signal for the second block back of the train. At the point where Mott was last seen by McCarthy as the train was about pulling out

which the defendant could be held liable was that the conductor was negligent in not stopping the train after he had investigated the report that a passenger who had gone on the platform atter the train had started from the station, was missing. His investigation which was made promptly and intelligently disclosed When

gard to the safety of the passengers, and it
was within a minute or two of the next sta-
tion at which he gave notice that would start
an investigation. In the absence of evidence
that the defendant in any way caused the
fall of the deceased from the train or omitted
to do anything which it could reasonably be
required to do under the circumstances, there
was nothing to submit to the jury.
The judgment is affirmed.

(245 Pa. 139)
DETTRA v. CITY OF PHILADELPHIA.
(Supreme Court of Pennsylvania. April 20,
1914.)
CORPORATIONS

1. MUNICIPAL
(§ 399*)
CHANGE OF GRADE-RIGHT TO DAMAGES
WAIVER.

walk was several feet above the established grade of the street, and she was therefore obliged to grade it off so as to make the grade conform. On 27th March, 1913, she presented her petition asking that viewers be appointed to assess the damages she had susUnder Act May 26, 1891 (P. L. 117), protained in consequence of having been requirviding that the damages assessed for the open- ed to lower her sidewalk in order to curb and ing of any street shall include all damages due pave. Viewers were accordingly appointed; to the grade at which the street is to be opened, but subsequently, on motion of the city, the and that the plan attached to the viewers' re-order appointing them was revoked, and the port shall show the existing grade, where a public street was opened by ordinance in 1894, and proceedings were duly instituted for the assessment of damages and a road jury was appointed, which, after hearing evidence, filed its report during the same year, and where the owner of a lot abutting on the street, though having notice of the proceedings, failed to present any claim for compensation for damages sustained, she was not entitled to have damages assessed and compensation allowed her for a lowering of her sidewalk necessitated by an ordinance adopted in 1911.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 958-961; Dec. Dig. § 399.*] 2. MUNICIPAL CORPORATIONS (§ 402*) CHANGE OF GRADE-ASSESSMENT OF DAM

AGES.

Act May 26, 1891 (P. L. 117), providing that the damages assessed for the opening of any street shall include all damages due to the grade at which the street is to be opened, and that the plan attached to the viewers' report shall show the existing grade, contemplates that all damages to abutting land consequent upon the improvement of a street shall be assessed in a single proceeding.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 969-981; Dec. Dig. § 402.*]

Appeal from Court of Common Pleas, Philadelphia County.

Petition by Mary B. Dettra against the City of Philadelphia for the appointment of viewers. From a judgment quashing the petition, plaintiff appeals. Dismissed.

Argued before FELL, C. J., and BROWN,
STEWART, and MOSCHZIS-

ELKIN,
KER, JJ.

Henry B. Hodge, of Philadelphia, for appellant. Glenn C. Mead and Edwin O. Lewis, Asst. City Sols., and Michael J. Ryan, City Sol., all of Philadelphia, for appellee.

original petition was quashed, for the reason that, if petitioner had sustained any damages, her claim for compensation should have been presented in the proceedings before the road jury in 1894, of which she admittedly had notice. The act of May 26, 1891 (P. L. 117), provides:

* **

"That in all cases of assessment of damages for the opening or widening of any street or highway the award of damages, if any, shall include all damages due to the grade at which said street or highway is to be opened or widened, and the plan attached to the report of the viewers awarding the damages shall have therein a profile plan showing the existing grade.'

The contention of appellant is that this act applies only in cases where land has been actually taken and appropriated, and that, inasmuch as the claim she here presents is not for land appropriated, but simply for expense she was put to in order to bring her pavement to conformity with the established grade of the street, she could have had no standing to assert her right before the jury appointed in 1894, and that no injury was sustained by her until required by ordinance of 1911 to pave and curb. As to the latter contention, it is only necessary to say that whatever damages or loss resulted to appellant was in consequence, of the ordinance of 6th April, 1894. That ordinance opening Willow Grove avenue at a fixed grade made a lowering of the grade of appellant's sidewalk at some time inevitable, and the damage and loss that would result to the property owner in consequence was a matter of easy computation as well before as after the change was actually made. The first contention finds its answer in several of our recent cases. In Deer v. Sheraden Borough, 220 Pa. 307, 69 Atl. 814, speaking of the act of 1891, we said:

"It provides comprehensively for proceedings intended to be instituted by municipalities in all cases of laying out, opening, widening, and extending streets, alleys, and lanes, and for the building of bridges, piers, abutments, sewers, and other works, and for ascertaining in one proceeding all the damages suffered by all abutting owners affected thereby."

[2] Following this, in Ogontz Avenue, 225 Pa. 126, 73 Atl. 1096, we said:

STEWART, J. [1] Willow Grove avenue, a public street in the city of Philadelphia upon which appellant's lot abuts, was opened by ordinance under date of 6th April, 1894. Under this opening ordinance proceedings were instituted in the court of quarter sessions in 1894 for the assessment of damages, and a road jury was appointed, which, after hearing evidence, filed its report November 15, 1894. By ordinance adopted 28th July, 1911, the setting of curb and the paving of sidewalks on that section of Willow Grove avenue which included the frontage of appellant's lot was directed. Agreeably to this later ordinance appellant proceeded to curb The case last cited distinguishes between and pave. The natural surface of her side- the rights of abutting owners and the rights *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

ly contemplates that all damages shall be assessed in a single proceeding, and shall accrue to those persons entitled thereto at the time of the assessment."

"As to abutting owners, the act of 1891 clear

the use and accommodation of the owner of said land. This crossing was used by the then owner of the land and his successors in title until 1902, when the defendant company for purposes of its own removed it, leaving the owners of the land without means of access

of owners of property adjoining property that is abutting, but this distinction in no wise affects the present case. This is the case of an abutting owner, and, in the opinion of the court in the case last cited, it is distinctly declared that, as to abutting owners: "There is an actual taking within the mean-to that portion which had been separated ing of the law when the street is ordered to be opened and proper notice has been served upon the property owners affected thereby." When in 1894 the city by ordinance opened Willow Grove avenue, it appropriated the entire street including sidewalks (McDevitt v. Gas Company, 160 Pa. 367, 28 Atl. 948), and it was then the injury was done of which appellant complains. It follows that her only remedy was under the act of 1891.

The appeal is dismissed at the cost of appellant.

therefrom by the railroad. The defendant. company having persistently refused to replace the crossing, the plaintiffs, present owners of the land, filed their bill reciting the above facts, and praying that a mandatory order issue to compel its replacement. The answer filed concedes the plaintiffs' right to the crossing, but denies their right to the relief prayed for, on the ground that the statute which confers the right to a crossing provides also a remedy where the crossing is withheld, and insists that to this remedy plaintiffs must be confined. The case was heard on bill, answer, and evidence, and a mandatory order requiring defendant to restore the crossing was entered, which on, appeal to the superior court was affirmed, The present appeal is from the decree of affirmance.

[1] As in the lower court and in the supe is that of jurisdiction. The position 'taken rior court, so here, the only question raised

[Ed. Note. For other cases, see Railroads, by appellant assumes the appropriateness, Cent. Dig. §§ 306-314, 769; Dec. Dig. § 102.*] 2. RAILROADS (§ 102*)-RESTORATION OF PRIVATE CROSSINGS-MANDATORY INJUNCTION. A court of equity has jurisdiction by mandatory injunction to compel a railroad company to restore a private crossing which it has wrongfully demolished; the remedy prescribed by Act Feb. 19, 1849 (P. L. 84) § 12, providing for the recovery of damages for failure to maintain such crossing, not being exclusive, and being inadequate in such case.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 306-314, 769; Dec. Dig. § 102.*1 Appeal from Superior Court.

Bill for mandatory injunction by Robert M. Green and another against the Baltimore & Ohio Railroad Company. From a decree for plaintiffs, defendant appeals. Affirmed.

The facts appear in the opinion of the Supreme Court, and in the opinion of the Superior Court by Orlady, J., in Green v. Baltimore & Ohio Railroad Co., 52 Pa. Super. Ct.

524.

Argued before FELL, C. J., and BROWN, MESTREZAT, STEWART, and MOSCHZISKER, JJ.

W. B. Linn, G. H. Stein, and H. B. Gill, all of Philadelphia, for appellant. J. B. Hannum, of Chester, for appellees.

STEWART, J. The Baltimore & Philadelphia Railroad Company, to whose rights the Baltimore & Ohio Railroad Company, the defendant in this proceeding, has succeeded, acquired its right of way upon and over the lands of Peter W. Green in 1885 by condemnation proceeding, and, as required by law, constructed a farm crossing over its said railroad for

the adequacy, and the exclusiveness of the remedy provided by the statute, where a wrong is done such as is complained of here. If upon examination it is found that the remedy lacks any one of these characteristics, it is not necessarily a barrier to the jurisdiction here invoked. In section 12 of the act of February 19, 1849 (P. L. 84), investing railroad companies with the right of eminent domain, it is provided:

"That for the accommodation of all persons owning or possessing land through which the said railroad may pass, it shall be the duty of such company to make, or cause to be made, a good and sufficient causeway or whenever the same may be necessary, to enable the occupant or occupants of said lands to cross or pass over the same, with wagons, carts and implements of husbandry as occasion may when so made, shall be maintained and kept in require; and the said causeway or causeways, good repair by such company. And if the said company shall neglect or refuse on request, to make such causeway or causeways, or when company shall be liable to pay any person agmade, to keep the same in good order, the said grieved thereby all damages sustained by such person in consequence of such neglect or refusal; such damages to be assessed and ascertained in the same manner as provided in the last section for the assessment of damages."

Of course, if what was sought by the bill filed in the present case was the recovery of damages, by way of compensation for the inconvenience and loss suffered and sustained by plaintiffs in consequence of the defendant's failure through neglect or refusal to supply the crossing, the plaintiffs were in the wrong court. Unquestionably this statutory remedy in such case would be both appropriate and adequate. But the bill here is

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

not for the recovery of damages; it asks none; what it asks, and all it asks, is that defendant be required to supply to the plaintiffs a convenience which the latter have a legal right to demand, and which the defendant company is under a legal duty to provide. To hold that they must be content with damages for the inconvenience they have been put to by defendant's unjustifiable refusal to supply the crossing is equivalent to say-enjoyment nor lose his right thereto. The law ing that neither the right conferred by the statute nor the duty imposed was absolute, and that the railroad company can escape the duty and defeat the right by a process of commutation-by paying the damages assessed in successive suits against it for the inconvenience suffered by the plaintiffs through the defendant company's default. We cannot give assent to any such view.

parent as it is here. Speaking of the obstruction of a right of way, Mr. Justice Trunkey, in Hacke's Appeal, 101 Pa. 245, says:

"A judgment for damages does not transfer the plaintiff's property in the way, to the defendant, as would a judgment in trover or trespass for taking goods. Nor will the law restore enjoyment to the owner. He may have repeated actions for damages, and neither gain tled to a remedy that will restore him to endoes not offer an adequate remedy. He is enti- · joyment, and is not confined to actions at law for damages resulting from obstructions."

[2] We are dealing with a vested right in the plaintiffs to a private crossing on their own lands over the defendant's tracks, a right as sacred as any other property right, which has been disturbed and its free exercise prevented by the defendant, not only without a semblance of right, but in open disregard of the statutory duty imposed on it to provide and maintain the means of its enjoyment. Can the plaintiffs be thus dispossessed of their property and have no remedy for its recovery? It is little less than mockery to say to them, you may get damages for the inconvenience you have suffered in consequence, that is, in consequence of a dispossession effected by a party without pretense of right to the thing itself. The right of these plaintiffs in the crossing was the gift of the state, and no power but that of the state could deprive them of it. The state had delegated to the defendant company its power in this regard, to be exercised only, however, in the way prescribed. By the ninth section of the act of June 7, 1901 (P. L. 531), the power is given to railroad companies to discontinue and remove private crossings under prescribed conditions; but, the removal and discontinuance of the plaintiffs' crossing was not effected pursuant to any law or agreeably to any established or pretended right. Therefore the right remains in the plaintiffs in its original force and vigor, except as we shall now say to them that you have been dispossessed of the thing itself by an intruder, and you must be content with compensation for the inconvenience you have suffered.

We

The appellant's sole reliance is upon the adjudication in the case of Dimmick v. D., L. & W. R. R. Co., 180 Pa. 468, 36 Atl. 866. The decision in that case has been largely misunderstood; not that the per curiam opinion filed is in the least ambiguous, but chiefly because it has too frequently been overlooked that the opinion nowhere rests the decision on the views expressed by the court below which appear at great length in the report. While the facts in that case are very closely analogous to those we have here, there is this very marked distinction which, without more, would have justified a dismissal of the plaintiffs' bill. In that case, as here, the bill sought to compel the railroad company to construct a farm crossing. The railroad company had neglected its duty for more than 35 years, and during all this period the complaining party had made no attempt to enforce their right, a fact specially emphasized in the opinion. All that was decided in the case was (1) that the bill did not present a case for relief in equity, and (2) that plaintiffs had an adequate remedy at law under the act of February 19, 1849, which it was their duty to resort to. Both conclusions may well be derived from the one fact referred to; and, from the prominence given it in the opinion, it was doubtless allowed controlling significance.

For the reasons we have stated, the assignments of error are overruled, and the decree is affirmed, at cost of appellant.

(245 Pa. 202)

BOOTH v. KEYSTONE SPINNING MILLS
CO.

(Supreme Court of Pennsylvania. May 4,
1914.)

MASTER AND SERVANT (§ 276*)-INJURIES TO
SERVANT DANGEROUS MACHINERY.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 950-952, 954, 959, 970, 976; Dec. Dig. § 276.*]

have no hesitancy in adjudging the statutory Where plaintiff was assisting a boss spinremedy prescribed in the act to be neither ap-sufficient to show that the injury was caused by ner in repairing a machine, evidence held inpropriate nor adequate for the injury here failure to provide proper machinery. complained of. We think it manifest that the only purpose in providing it was to furnish the means to quicken the defaulting railroad company in the discharge of the duty the act imposed. Because the plaintiffs might have adopted it for that purpose is no reason that they should be denied the right to equitable relief, when the inadequacy of the remedy to right the wrong done is so ap*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Appeal from Court of Common Pleas, Philadelphia County.

Action by Samuel Booth against the Keystone Spinning Mills Company. Judgment for defendant, and plaintiff appeals. firmed.

Af

་

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes