Action by William A. Matlack against Fay-, ery, it is not sufficient to prove that the maette R. Plumb, Incorporated. Judgment of chinery was guarded and then rest without ofnonsuit. Plaintiff appeals. Affirmed. Argued before BROWN, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ.

inch steel guards"; further, that a guard of this character was "sufficient to resist a breaking emery wheel."

It seems to me that the evidence was ample to take the case to the jury and that error was committed in the nonsuit; therefore I dissent.

(245 Pa. 220)

COMMONWEALTH v. ABEL.

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

1. CRIMINAL LAW (§ 519*)-EVIDENCE-CONFESSIONS.

Peter M. MacLaren and John R. McLean, Jr., both of Philadelphia, for appellant.. Joseph H. Taulane, Asst. Dist. Atty., and Samuel P. Rotan, Dist. Atty., both of Philadelphia, for the Commonwealth.

POTTER, J. [1] It appears from this record that at a court of oyer and terminer for the county of Philadelphia William Abel, the defendant, was indicted, tried, convicted of murder of the first degree, and sentenced. The first assignment of error is that the learned court erred in admitting as evidence in the case an alleged voluntary statement made by the defendant. It is suggested in the argument that undue pressure was brought to bear on the prisoner in order to procure the statement. This suggestion is not strongly pressed, however, and our reading of the evidence has not satisfied us that any undue pressure was brought to bear. The testimony shows that the statement was 2. HOMICIDE (§ 203*)-STATEMENT OF DE- made without any promises whatsoever being CEASED COMPETENCY AS DYING DECLARA-made to the prisoner, and with the knowledge

A statement signed by defendant setting forth that it was made of his own free will, and that his shooting of deceased was accidental, was properly admitted in evidence, where it appeared that he made it voluntarily, without being induced by any promises, and with knowledge of its contents and that it would be used against him.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1163-1174; Dec. Dig. § 519.*]

TION.

Where it appeared that deceased, a boy 12 years old, was taken to a hospital after being shot, and there told by a physician that his condition was serious, that he was a Catholic, and received from a priest the last rites of the church, which are only administered when danger of death is imminent, and that after he was operated on he asked his father to have him buried in the country in case of death, his statement made the next day, about two hours before his death, and after being told by the physician that he could not live much longer, was properly admitted in evidence as a dying

declaration.

[Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 430-437;. Dec. Dig. § 203.*] 3. HOMICIDE (§ 253*)-MURDER OF FIRST DEGREE-SUFFICIENCY OF EVIDENCE.

Evidence held to warrant the inference of a deliberate and willful intent to take life, and to authorize a verdict of murder of the first degree and sentence of death.

[Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 523-532; Dec. Dig. § 253.*]

Appeal from Court of Oyer and Terminer, Philadelphia County.

William Abel was convicted of murder of the first degree, and appeals. Affirmed.

From the record it appeared that the evidence was not contradicted that the defendant had attempted to commit an unnatural crime upon the deceased, a boy of about 12 years; that the boy struggled to escape from defendant; and that defendant then drew a revolver and shot deceased in a vital part of his body, and ran away. The deceased was taken to a hospital, where he died the next day. Other facts appear in the opinion of the Supreme Court.

The jury found a verdict of guilty of murder in the first degree, upon which sentence of death was passed.

Argued before FELL, C. J., and MESTRE ZAT, POTTER, ELKIN, and MOSCHZISKER, JJ.

upon his part that it would be used against him at the trial. The defendant can read and write; and it appears that he signed the statement knowing its contents, and knowing that it set forth that it was made of his own free will and accord. In the statement he admitted that he shot the boy, but claimed that it was accidental. In view of these facts, and in the absence of any denial on the part of the defendant that the statement was made voluntarily, we think it was admissible against him.

[2] The second assignment relates to the admission in evidence upon the trial, as a dying declaration, of a statement alleged to have been made in the hospital by the boy, Thomas King, who was shot, and who died as a result thereof. We think the requisites for the admission of the declaration existed in the present case. The testimony shows that after the boy was shot and was taken to the hospital he was advised by the physician in charge that his condition was serious. That it was doubtful if they could pull him through. It appeared that the boy was a Catholic, and that a priest was sent for, who administered to him the last rites of the church, which are only administered when

the boy was operated upon. The next morning the police came to the hospital, and the physician said to the boy, who had passed a bad night:

the danger of death is imminent. After this

much longer. We want you to tell us the "Tommy, I don't think you are going to live truth; tell us all you know, so we can find out who did this to you, and have them punished in the proper way."

The boy nodded his head and told his story. It also appeared that shortly after the operation the boy twice asked his father if, in case of his death, the father would

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

ER-NEGLIGENCE.

While trainmen should not intentionally or wantonly injure a trespasser, they need not hunt for concealed trespassers before starting a train.

take him to the country and bury him. The [3. RAILROADS (§ 281*)-INJURY TO TRESPASSfather said he would. In the face of this testimony we do not see that it can be reasonably doubted that the boy told his story under the impression that his death was near at hand. As a matter of fact, he died

within two hours thereafter. We cannot therefore say there was error in admitting the statement.

Cent. Dig. §§ 902-909; Dec. Dig. § 281.*]
[Ed. Note.-For other cases, see Railroads,

4. APPEAL AND ERROR (§ 882*)-GIVING FULL
CREDIT TO WITNESS-RIGHT TO COMPLAIN.
Plaintiffs in a negligence case could not
complain on appeal that the jury gave full cred-

[3] Nor do we see any merit in the assignment of error which suggests that the in-it to their own witness. gredients necessary to constitute murder in the first degree were not shown. It appeared that the boy was first assaulted, and then was brutally shot in a vital part of the body; the pistol being held so close as to singe and

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § 882.*]

blacken the flesh. From the facts attending the shooting, which were shown, the jury could reasonably infer the existence of an intention to kill. Taking into account the part of the body in which the boy was shot, it is to be presumed that whoever fired the shot knew that it was likely to be fatal. No extenuating circumstances whatever were shown. We regard the evidence as sufficient to warrant the inference of a deliberate and willful intent to take life. Our examination of the record has satisfied us that the defendant received a fair and impartial trial, and we have no reason to doubt the justice of his conviction. Neither in the charge to the jury nor in the admission of evidence do we find anything of which the defendant can justly complain.

The assignments of error are overruled, and the judgment is affirmed, and it is ordered that the record be remitted to the court below, for the purpose of execution.

(245 Pa. 184)

Appeal from Court of Common Pleas, Philadelphia County.

Trespass by Charles Schleich and another against the Baltimore & Ohio Railroad Company for damages for death. From a judgment refusing to take off nonsuit, plaintiffs appeal. Affirmed.

Upon a motion to take off the nonsuit, Audenried, J., filed the following opinion: On the afternoon of March 8, 1912, the plaintiffs' son, Raymond, a boy obout nine years old, met another boy of his own age at Sixteenth and Porter streets, in this city, and set out with him for the railroad tracks laid on a strip of ground belonging to the defendant, and rungon avenue; their purpose being to steal coal ning east and west along the south side of Orefrom the coal cars there. The grade of Oregon avenue at this point is six or seven feet above that of the railroad.

The boys crossed that street and descended to the defendant's tracks by a path that runs south from a point opposite the mouth of Bancroft street, a small thoroughfare which leads north and south. They found standing on the northernmost track a west-bound train consisting of 45 or 50 coal cars. Its rear car was then opposite Sixteenth street, while its locomotive was about three blocks to the west of that point.

This train had become stalled for want of steam. Its crew consisted of an engineer, a

SCHLEICH et al. v. BALTIMORE & O. R. fireman, a brakeman, a conductor, and a flag

CO.

(Supreme Court of Pennsylvania. April 27,

1914.)

1. RAILROADS (§ 281*)-INJURY TO TRESPASSER-NEGLIGENCE-LIABILITY.

The fact that a flagman is negligent in starting a train without making sure that boys who have been playing about in plain view are not still on the cars will not render the railroad company liable for injuries to a boy who has hidden himself in a car, and was not one of those playing about the train.

man. When the two boys arrived on the scene, all of the crew except the flagman were on or about the engine or its tender. The flagman had been stationed one block to the east of the rear end of the train. The train had lain at this point for 20 minutes, and the engineer, having at last succeeded in getting up enough steam to start with, had given the signal recalling the, flagman.

Five minutes elapsed before the latter regained the train. During that time Raymond succeeded in climbing upon a car which stood fourth or fifth from the rear end of the train, and got down inside of it. Here he was completely hidden. Nobody could see him without mounting the car and peering over its side, or getting up on top of the adjoining cars and looking down. No one saw him board the train

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 902-909; Dec. Dig. § 281.*] 2. RAILROADS (§ 281*)—INJURY TO TRESPASS-except his companion, and the latter seems to 2. RAILROADS (§ 281*)-INJURY TO TRESPASSER-NEGLIGENCE.

Where a boy hid himself in a car, and was injured from the starting of the train at the signal of a flagman who did not know of the boy's presence, the fact that the boy was of tender years did not render negligent the flag man's failure to discover him; the standard of duty in case of concealed trespassers being the same whether the person injured be an adult or a child.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ -902-909; Dec. Dig. § 281.*]

be the only person who knew that Raymond was anywhere near it.

boarded it, the flagman reached the rear car Within a minute or two after the boy had and from its platform gave the engineer the signal to start. The train immediately began to move. As the flagman signaled the engineer he had looked along first one side of the train and then the other, but had observed none near it who could be hurt by its motion. A number of boys had been playing on the cars before this; but they had been called away by a

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

woman at the window of a neighboring house be- | dence showed that the man by whose negligence fore the train started, and they did not approach it again until it got under way.

The plaintiffs' son was not with those boys. The first person to see him after he passed from the sight of his comrade into the coal car was the flagman. When the train had moved about five car lengths the latter, who was on the back platform of the last car, noticed him sitting on the north side of the ditch between the railroad tracks and the Oregon avenue_embankment. His attention had been arrested by the child's call; but until the latter called a second time the man thought that he was playing, and did not observe that he had been hurt. The rear end of the train was then a car's length to the west of where the boy was sitting. As soon as he realized that something was wrong the brakeman jumped from the car and, finding that the child's leg had been cut almost off, carried him up the bank to Oregon avenue. Subsequently the boy was carried by an ambulance to the hospital. There he died the next day. How he came to be injured, nobody knows. Presumably the wheels of the train passed over his leg; but no one saw this

happen.

The plaintiffs' evidence at the trial disclosed the facts above outlined. The court on motion

of the defendant entered a nonsuit, which we are now asked to take off.

[1] The plaintiffs contend that the jury should have been allowed to say whether or not the flagman was negligent in failing to observe the presence of their son on the train before starting it, and in starting the train without making sure that there was nobody on it who wanted to get off. This proposition is based on the fact that a dozen or more boys had been playing about the train in plain view of everybody, and the assumption that it might have been expected that some of them were still on the cars when the flagman was called in.

The answer to this argument is that all the

boys whom the flagman saw or might have seen without extraordinary effort had actually left the train before he signaled the engineer to start it, and none of them were injured. Even if it could fairly be said that with respect to these boys he was guilty of negligence, it does not follow that such negligence made him responsible for the death of the boy who was hurt. To fix responsibility on the flagman for the death of the latter, it must be shown that the death resulted from negligence as to him.

[2, 3] As to the Schleich boy, however, there was no negligence on the part of the flagman. He was hidden in one of the cars. There he had no right to be. The car was private property. It was standing on private land. Neither the flagman nor the other men on the train were bound to hunt for concealed trespassers. It was their duty, it is true, not to injure him intentionally or wantonly. Had the flagman seen him in the act of climbing down from the car, he would have been negligent if he signaled for the engineer to start the train before the boy reached a place of safety. Even trespassers are entitled to humane consideration. But the flagman did not see the boy at all, and he was no more bound to take notice of his presence on the train, because the trespasser happened to be of tender years, than he would have been had the latter been a man. The standard of duty in a case like this is the same whether the person injured is an adult or a child. Thompson v. Railroad Co., 218 Pa. 444, 67 Atl. 768, 19 L. R. A. (N. S.) 1162, 120 Am. St. Rep. 897, 11 Ann. Cas. 894.

The correctness of this view was recognized in Walsh v. Pittsburgh Rys. Co., 221 Pa. 463, 70 Atl. 826, 32 L. R. A. (N. S.) 559, the case on which counsel for the plaintiffs principally relies. The sending of that case to the jury was held to be warranted only because the evi

the plaintiff was injured had the fullest opportunity to see her, to observe where she was, and to realize the consequence that would probably result from his act. The presence of this person could not be secured by either party at the trial, and the jury was left to inference as to his actual knowledge of the circumstances under which he committed the act that did the injury.

[4] In the case at bar the man whose alleged negligence is pointed to as the cause of the. accident appeared on the witness stand at the call of the plaintiffs and swore that he did not see their son on the train. If that evidence be accepted as true, and the plaintiffs who put him on the stand cannot complain if full credit be accorded to their own witness, no room was left for conjecture on this subject.

The court dismissed the motion to take off the nonsuit.

Argued before FELL, C. J., and BROWN, ELKIN, STEWART, and MOSCHZISKER,

JJ.

Henry B. Hodge, T. Truxton Hare, and Paul Reilly, all of Philadelphia, for appellants. W. B. Linn and H. B. Gill, both of Philadelphia, for appellee.

PER CURIAM. Nothing can be added to the clear and concise statement of the facts and the law applicable thereto by Judge Audenried, and on his opinion we affirm the judgment appealed from.

(245 Pa. 107)

Appeal of CUMBERLAND VALLEY R. CO. (Supreme Court of Pennsylvania. April 20, 1914.)

1. RAILROADS (§ 99*)-Grade CROSSINGS-PETITION FOR LEAVE TO ESTABLISH-BURDEN OF PROOF.

In view of the fact that Act June 7, 1901 (P. L. 531), forbidding public authorities, except in cities of the first and second classes, to construct grade highway crossings without permission of court, is not an enabling act to facilitate the building of highways over railroads at grade, but is prohibitory, a heavy burden of proof to establish the necessity rests on public authorities petitioning for leave to establish a grade crossing.

Cent. Dig. §§ 293-295, 297-304; Dec. Dig. § [Ed. Note. For other cases, see Railroads, 99.*]

2. RAILROADS (8 99*) - GRADE CROSSINGSPETITION FOR LEAVE TO ESTABLISH.

Where, on a petition by township supervisors for leave to establish a grade crossing, the court found that between 50 and 60 trains daily passed over the proposed crossing, some at a speed of from 40 to 45 miles an hour and others from 65 to 70 miles an hour, that the railroad traffic was increasing and the view of the track obstructed by growing corn at certain seasons, though the smoke from the engines could be seen above the corn, and that' the cost of constructing an overhead crossing would be $20,000, half of which would be borne by the railroad company, and there was no finding as to the probable amount of travel on the highway, but the petition for opening same had been signed by 150 residents of the township, it was error to grant the petition in consequence of a conclusion of law that the highway traffic would be small, and that the cost of

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

constructing an overhead crossing would be ex- act of 1901, asking permission to construct cessive. the road at grade over the tracks of the ap[Ed. Note. For other cases, see Railroads, pellant. Between 50 and 60 trains pass daily Cent. Dig. §§ 293-295, 297-304; Dec. Dig.pellant. 99.*] at the point where the proposed public road crosses the tracks of the railroad company. Appeal from Court of Common Pleas, Most of these are fast freight and passenger Franklin County. trains, the former running at a speed of Petition of the Board of Township Super- from 40 to 45 miles an hour, and the latter at visors of Antrim Township, Franklin Coun- a speed of from 65 to 70 miles an hour. The ty, for permission to establish a grade cross-traffic of the railroad company is rapidly ining in Antrim Township over the Cumber- creasing. The land on each side of its tracks land Valley Railroad. From a decree grant- where the new public road will cross them is ing the petition, the Cumberland Valley Rail- cultivated by farmers, and a finding of the road Company appeals. Reversed. court below is that, when corn grows high in Argued before FELL, C. J., and BROWN, the fields at the point of the proposed grade ELKIN, STEWART, and MOSCHZIS- crossing, the roadbed of the company cannot be seen in approaching the tracks, though smoke from the engines can be seen above the corn. In this latter part of the finding the court below seems to have forgotten that smoke is not visible in darkness or in fog. Though the learned judge failed to find as a fact that the proposed grade crossing will be dangerous, one of his legal conclusions, inconsistent with the facts which he found, is that the crossing will not be a dangerous one. We are unable to understand how such

KER, JJ.

Walter 'K. Sharpe and O. C. Bowers, both of Chambersburg, for appellant. A. J. W. Hutton and W. J. Patton, both of Chambersburg, for appellee.

BROWN, J. [1] The settled policy of the state-no longer merely judicial-is against grade crossings over railroad tracks. By the act of June 7, 1901 (P. L. 531), public authorities, except in cities of the first and second classes, are forbidden to construct a public highway at grade over the tracks of a railroad company, unless permission to do so be obtained from the court of common pleas of the district in which the crossing is situated; and such permission must be obtained in the manner provided by the fourth section of the act. It is not an enabling act to facilitate grade crossings of railroads by highways; on the contrary, it is a prohibitory one, and, when public authorities petition for a grade crossing under the provisions of its fourth section, they come into court with a heavy burden of proof resting upon them. Mifflinville Bridge, 206 Pa. 420, 55 Atl. 1122.

[2] This appeal is from permission granted by the court below to the supervisors of Antrim township, Franklin county, to construct a public highway at grade over the doubletracks of the Cumberland Valley Railroad Company. In view of the facts found by the court and of an unchallenged averment in the sixth paragraph of the answer of the appellant to the petition of the appellees for permission to construct the crossing, the order authorizing it ought not to have been made. In 1912 a petition, signed by more than 150 residents of Antrim township, was presented to the court of quarter sessions of the county, asking for the appointment of viewers to view and lay out a public road to run from the Hagerstown road to the Williamsport turnpike, two public thoroughfares in the township. The viewers reported in favor of the proposed road, and, after their report had been absolutely confirmed by the court, and an order made for the opening of the road, the supervisors of the township presented their petition, under the provisions of the

a conclusion could have been reached in view of the facts to which we have referred. Our conclusion, from a review of what has been brought up on the record, is that the proposed grade crossing will be dangerous, and that the court below erred in concluding

otherwise.

The act of 1901 provides that a grade crossing may be constructed if the court having jurisdiction of the matter shall be satisfied that such a construction is reasonably required to avoid excessive expense, in view of the small amount of traffic on the highway. Among the court's findings there is none that the amount of traffic on the highway will be small. True, there is a finding that it is likely to be used only for neighborhood travel, but how extensive that may be does not appear. It does appear, however, that more than 150 residents of Antrim township petitioned for the road, which connects two public highways running parallel to each other, east and west of the railroad, and it may be in view of this that the court below could not have found as a fact that the "amount of trafne" over the road would be small. One of its legal conclusions was that, as the amount of travel on the highway was likely to be small, the expense which would be incurred in constructing an overhead structure would be excessive and almost prohibitory. As just stated, there was no finding as to the probable amount of travel on the highway. It may be large, even if it be likely that the highway will be used only for the neighborhood travel; for many people may live there. More than 150 of them set forth in their petition for the road that it was necessary for the accommodation of the

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