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end nearest the crossing, who warned persons | circumstances creating a duty on the part of about to use the crossing when it was proposed to start the car, but at this particular time there was no man at that place, and no warning given, and that the car was suddenly set in motion when the plaintiff was on the crossing, whereby he was struck, knocked down, dragged about 20 feet, and had one foot so injured that it had to be amputated and the other less injured but sufficiently to cause the amputation of one or more toes to be necessary.

The defense was twofold. First, on the fact that the plaintiff was guilty of contributory negligence in attempting to cross the track without the precautions required by law at a place, not the crossing, in front of a moving car; and, secondly, that the defendant owed the plaintiff no duty whatever because there was no relation of master and servant, claiming the plaintiff to be only a licensee of the premises who was seeking work, but had not yet entered into the employment of the defendant. It is in consequence of this latter theory that the motion for judgment non obstante veredicto is now presented, and the defendant relies upon the principle followed in Larmore v. Crownpoint Iron Co., 101 N. Y. 391, 4 N. E. 752, 54 Am. St. Rep. 718, and Shiffer v. Sauer Co., 238 Pa. 550, 86 Atl. 479. In the former case, the plaintiff, seeking employment, went upon the grounds of the defendant and while walking along a pathway was struck by a piece from a machine that had suddenly broken. In the opinion the court stated: "The plaintiff was on the premises at most by the mere implied sufferance or license of the defendant, and not on its invitation, express or implied; nor was he there, in any proper sense, on the business of the company. * He went there on his own business, and in returning he was subserving his own purpose only. The precise question is whether a person who goes upon the land of another without invitation, to secure employment from the owner of the land, is entitled to indemnity from such owner for an injury happening from the operation of a defective machine on the premises, not obviously dangerous, which he passes in the course of his journey, if he can show that the owner might have ascertained the defect by the exercise of reasonable care."

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defendant, to the plaintiff, to keep the machine in repair, and consequently no obligation to remunerate the latter for his injury. The machine was not intrinsically dangerous. plaintiff was a mere licensee. The negligence, if any, was passive, and not active-of omission, and not of commission." A judgment in favor of the plaintiff in the court below was therefore reversed, though not without dissent.

In Schiffer v. Sauer Co., 238 Pa. 550, 86 Atl. 479, the plaintiff who was a carpenter seeking employment, entered into a building in the course of erection while the defendants, one a contractor doing plumbing work, and the other a gas company, were jointly engaged in testing and inspecting the gas pipes, and was injured by an explosion resulting from the omission to plug or cap two openings in the gas main. Judgment was entered by the court in favor of the defendant, because the plaintiff was a mere licensee to whom the defendant owed no duty, except to abstain from inflicting on him an intentional, wanton, or willful injury, and the court quoted at length from the foregoing opinion.

It would seem as if there were a plain distinction to be found between the facts of those cases and the one now before us, a distinction indicated in the Larmore Case when the court refers to the running of a locomotive without warning over a path across the railroad which had been generally used by the public. The path in this colliery was opened by the railroad company to accommodate the needs of its employés, as well as persons with horses and wagons who had business within the limits of the colliery grounds, and persons who in the course of defendant's business might become its employés and were therefore received by its foreman at a place within the grounds which was reached only by passing over the crossing. Surely an employer of labor who operates a railroad such as this one must operate it without negligence toward those who come upon his ground seeking employment at a place appointed by him for the purpose, who, coming as much about his business as about their own, are by him directed over a railroad crossing as the only way of reaching the office or official that must be visited if employment is to be obtained. When such a railroad is operated negligently, it comes within the instance suggested in the Larmore Case, supra, where the negligence is active and not passive, where it is an act of commission and not of omission, or, still speaking in the language of that case, we have an instance where "the duty of keeping the premises in safe condition even as against a mere licensee may also arise where affirmative negligence in the management of the property or business of the owner would be likely to subject persons exercising the privilege theretofore permitted or enjoyed, to great danger."

The court answers the question by saying: "We know of no case which goes to this extent. There is no negligence, in a legal sense, which can give a right of action, unless there is a violation of a legal duty to exercise care. The duty may exist as to some persons, and not as to others, depending upon peculiar relations and circumstances. An employer is required to take reasonable precautions and to exercise reasonable care in providing safe machinery and appliances for the use of his servant. The duty arises out of the relation. * * The owner of land, in general, may use it as he pleases, and leave it in such condition as he pleases. ** So, also, where the owner of land, in the prosecution of his own purpose or business, or of a purpose or business in which there is a common interest, invites another, either expressly or impliedly, to come upon his premises, he cannot with impunity expose him to unreasonable or concealed dangers; as, for example, from an open trap in a passageway. The duty in this case is founded upon the plainest principles of justice. * * The duty of keeping premises in a safe condition, even as against a mere licensee, may also arise where affirmative negligence in the management of the property or business of the owner would be likely to subject persons exercising the privilege, theretofore permitted and enjoyed, to great danger. The case of running a locomotive, without warning, over a path across the railroad, which had been generally used by the public without obiection. furnishes an example. Barry v. N. Y. Central Railroad, 92 N. Y. 289 [44 Am. Rep. 377]. *** In the case before us there were no ER, JJ.

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Much stress was laid at the argument on the fact that the defendant had inclosed the property with a high fence. But this overlooks the other potent fact that the defendant had left gates in the fence and established roads from those gates across a railroad operated within the inclosure. Whether the special conditions existing at this place required the establishment of signals or brakemen to give notice before moving the cars was, in our opinion, clearly a question of fact for the jury, and as such it was submitted both in the body of the charge and in the answer to a particular request by the defendant for instructions. On the whole case we deny the motion.

Verdict for plaintiff for $3,300, and judgment thereon.

Argued before. BROWN, MESTREZAT, POTTER, STEWART and MOSCHZISK

John McGahren, of Wilkes-Barre, Warren, [ John Byrd. From decree for plaintiffs, de Knapp, O'Malley & Hill, of Scranton, and fendant appeals. Reversed. Eugene A. Brennan, of Wilkes-Barre, for appellant. James L. Lenahan and John S. Lopatto, both of Wilkes-Barre, for appellee.

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A provision of a lease that the lessor should furnish without charge "live steam pressure through a 1-inch pipe as constructed from the boiler room at the present time" did not preclude the lessor from removing the existing 12-inch pipe and replacing it by a 1-inch pipe, in the absence of fraud, accident, or mistake in the execution of the lease.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 437-440; Dec. Dig. 8 124.*]

2. LANDLORD AND TENANT (§ 124*)-CON

STRUCTION OF LEASE-EVIDENCE.

Where, in a lessee's action to enjoin the lessor from substituting a 1-inch pipe for an existing 12-inch pipe, it appeared that the lease obligated the lessor, in consideration of stipulated rental, to furnish live steam pressure through a 1-inch pipe for the use of the lessees in their laundry business, but was silent as to the amount of pressure to be maintained, evidence to show how much steam was being furnished when the lease was made, and how much defendant continued to furnish thereafter, was admissible to show the intent of the contracting parties.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 437-440; Dec. Dig. 8 124.*]

See, also, 91 Atl. 848, 850.

Argued before FELL, C. J., and MESTREZAT, POTTER, ELKIN, and STEWART, JJ. Ira J. Williams and Joseph P. Gaffney, both of Philadelphia, for appellant. Joseph R. Embery, of Philadelphia, for appellees.

ELKIN, J. [1] This is the kind of a case in which the interested parties are in much better position to settle their own differences, if they approached the subject in a proper spirit, than the courts can settle those differences for them by undertaking to determine the true meaning of the contract made by the parties but about which they cannot agree. When capable business men reduce their agreements to writing, and then disagree about the meaning of their own written instrument, it is difficult for courts to accurately define and exactly enforce their Covenants according to the true intent of the parties, when the writing leaves the question in doubt. But when the contracting parties will not or cannot agree, and resort to the courts for the enforcement of their legal rights, it becomes the duty of the courts in considering the case to give due weight to the pleadings, the written instrument, and the surrounding circumstances, in determining what those rights are and how they shall be enforced. This is a proceeding in equity, which follows the law, and since the law of a contract is the agreement of the parties, it is essential to first ascertain what those rights are, before equity will provide the remedy to enforce them. The bill filed in this case prayed for an injunction to restrain defendant from cutting off the steam or power, and from interfering with or removing the pipes and connections which furnished steam to the laundry of appellees. The lease in question provides as follows:

"The said lessor shall furnish to the said lessees, without charge, live steam pressure through a one-inch pipe as constructed from the boiler room at the present time."

3. LANDLORD AND TENANT (§ 124*)-LEASEIt is averred, that at the time of the exeAGREEMENT TO FURNISH STEAM-CONSTRUC-cution of the 1911 lease, the pipe which

TION.

Though a lease, obligating the lessor in consideration of, stipulated rental to furnish live steam for the use of the lessees in their laundry business, through a 1-inch pipe, was silent as to the amount of pressure to be maintained, it entitled the lessees to receive a live steam pressure through a 1-inch pipe, in an amount sufficient to meet the reasonable requirements of their business and increases consequent on the installation of additional machinery, as contemplated by the contracting parties.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 437-440; Dec. Dig. 8

124.*]

connected the boiler room to the premises occupied by the lessees, and through which live steam was furnished, was 11⁄2 inches in diameter. It is therefore urged that, inasmuch as the pipe in dispute here at the time of the execution of the 1911 lease was 12 inches in diameter, it must remain unchanged, and cannot be replaced by a 1-inch pipe, although the lease in express terms provides that the live steam shall steam shall be furnished through a 1-inch pipe. The lease is under seal and was signed in the presence of a

Appeal from Court of Common Pleas, Phil- witness. It was attached to and made part adelphia County.

Injunction by Louis C. Bauer and another, trading as the American Laundry, against

of the bill of complaint filed in this case. There is no allegation or proof of fraud, accident, or mistake in the preparation and

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

execution of the lease. The person who prepared the lease testified that the clause requiring live steam to be furnished through a 1-inch pipe was inserted by the direction and with the approval of Byrd, the lessor, and Warnock, one of the lessees, who was present when the terms were agreed upon. Bauer, the other lessee, admits in his testimony that he told Byrd a 1-inch pipe would be sufficient. After the lease was prepared, and prior to its execution, copies were submitted to all of the interested parties, who thus knew or had the opportunity to know, what it contained before signing their names. The lease says that live steam shall be furnished through a 1-inch pipe, and the written instrument is corroborated by the testimony of the parties who signed it and of the stenographer who prepared it. The only answer appellees make as to the execution of the lease is that they were careless in signing. This is not sufficient. Under these circumstances, the express provisions of the lease relating to the 1-inch pipe must be accepted as binding upon the parties, unless our eyes are closed to what was so plainly written, and we declare as a matter of law that although the contract in unambiguous language says one thing, it means something else. We find nothing in this record to warrant such a conclusion. It necessarily follows that the decree, in so far as it requires appellant to furnish live steam through a 12-inch pipe, is erroneous. Under the contract all that can be required of appellant is to furnish steam through a 1-inch pipe.

[2, 3] We fully agree with the learned court below that nothing contained in the leases of 1909 and 1911 definitely fixed the number of pounds pressure which the appellant was required to maintain in furnishing live steam. The lease of 1906 did contain such a provision, but this was omitted in the subsequent leases. What the lease of 1911 did require was that the lessor should furnish live-steam pressure through a 1-inch pipe to the laundry of appellees. It is silent as to the amount of pressure to be maintained. Hence, the contract not having specified any amount of pressure, it was competent to prove' how much steam was being furnished when the lease was made, and how much appellant continued to furnish after it went into force, for the purpose of showing what the intention of the parties was and how they construed their own contract in respect to the furnishing of steam. The lessees were in the laundry business, which was conducted on the leased premises. Appellant, in consideration of the stipulated rental, agreed to furnish live steam for the use of appellees in their business. The parties had in contemplation the conditions as they existed on the premises at the time the lease was made, and also the installation of

such additional machinery as was suggested at that time, as the basis of their contractual relations, and unless they expressly provided otherwise in the lease of 1911, as they did in respect to the diameter of the pipe, the only reasonable inference is that they intended the conditions then existing with such changes and additions as were then agreed upon, to continue during the term of the new lease. Appellees need live steam to conduct their laundry business, and it is made the duty of appellant under the lease to furnish that steam. How much is not definitely fixed, but as we view the situation, appellant is obliged to furnish a sufficient amount of steam to meet the reasonable requirements of appellees in their laundry business, based upon conditions existing or contemplated when the lease of 1911 was made, if the same can be furnished through a 1-inch pipe. Why the parties agreed to take steam through a 1-inch pipe, we do not know, and this record does not inform us, but it is so written in their contract and we cannot disregard it.

We, therefore, are constrained to hold that it was error to decree that the appellees are entitled to receive live steam through a 12-inch pipe connecting the boiler with the machinery on the leased premises. What they are entitled to receive is live steam through a 1-inch pipe, and in an amount sufficient to meet the reasonable requirements of their business, based upon conditions as hereinbefore stated, if that can be done through a 1-inch pipe.

Decree reversed, and bill dismissed at the cost of appellees.

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1. LANDLORD AND TENANT (§ 124*)-LEASECONSTRUCTION - AGREEMENT ΤΟ FURNISH STEAM.

A provision of a lease that the lessor should furnish without charge "live steam pressure through a 1-inch pipe as constructed from the clude the lessor from removing the existing 1boiler room at the present time" did not preinch pipe and replacing it by a 1-inch pipe, in the absence of fraud, accident, or mistake in the execution of the lease.

Tenant, Cent. Dig. §§ 437-440; Dec. Dig. § [Ed. Note.-For other cases, see Landlord and 124.*]

2. APPEAL AND ERROR (§ 1009*)-FINDINGSEQUITY.

A chancellor's findings of fact will not be reversed on appeal except for manifest error. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3970-3978; Dec. Dig. § 1009.*]

3. LANDLORD AND TENANT (§ 124*)-LEASEAGREEMENT TO FURNISH STEAM-CONSTRUC

TION.

Though a lease obligating the lessor, in consideration of stipulated rental, to furnish live steam for the use of the lessees in their laundry

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

this as an established fact. On the question of the obligation to furnish exhaust steam it is conclusive.

business, through a 1-inch pipe, was silent as to the amount of pressure to be maintained, it entitled the lessees to receive a live steam pres sure from a 1-inch pipe in an amount sufficient to meet the reasonable requirements of their It will be necessary to modify the decree in business, and increases consequent on the in- respect to furnishing live steam through a stallation of additional machinery, as contem-12-inch pipe so as to require it to be furnishplated by the contracting parties.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 437-440; Dec. Dig. § 124.**]

Appeal from Court of Common Pleas, Philadelphia County.

Injunction by Louis C. Bauer and another, trading as the American Laundry, against John Byrd. From decree for plaintiffs, defendant appeals. Modified and affirmed.

See, also, 91 Atl. 847, 850.

The facts appear in Bauer v. Byrd (No. 1), 91 Atl. 847 and in the opinion of the Supreme

Court..

ed through a 1-inch pipe, and the record will be remitted for this purpose. Of course, if appellant chooses to continue furnishing live steam through a 12-inch pipe rather than to tear out these pipes and fittings and install new ones, there can be no objection to his doing so, but what we mean to decide is that he can only be compelled to furnish live steam through a 1-inch pipe if he insists upon his rights under the contract.

[3] We repeat, what was said in the other

opinion, that appellant under the terms of the lease is obliged to furnish a sufficient amount of live steam to meet the reasonable requirements of appellees for use in conducting their business on the leased premises, based upon

Argued before FELL, C. J., and MESTREZAT, POTTER, ELKIN, and STEWART, JJ. | Ira J. Williams and Joseph P. Gaffney, conditions existing or contemplated when both of Philadelphia, for appellant. Joseph R. Embery, of Philadelphia, for appellees.

ELKIN, J. [1] What was said in the opinion just handed down in another proceeding between the same parties applies to the present case. It will not be necessary to repeat what was there said, nor will any useful purpose be served by discussing in detail the several assignments of error in the case at bar. That part of the decree in this case which requires appellant to furnish steam through a 12-inch pipe must be modified. In other respects the decree should be affirmed. We agree that appellant should furnish such pressure of live steam through a 1-inch pipe as the capacity of the boilers can reasonably produce, without any unfair obstruction on the part of the defendant. It was error to decree that appellant be required to furnish live steam through a 12inch pipe. The contract provides that the live steam shall be furnished through a 1-inch pipe, and we are not at liberty to disregard what the parties themselves agreed to do.

the lease of 1911 was made, if the same can be furnished through a 1-inch pipe. In this connection it should be observed that, at the time of the execution of the 1911 lease, appellees contemplated adding certain additional machinery and appliances to the equipment of their laundry, and the rental was increased because of the additional cost in furnishing more steam to meet the new conditions, and this must be taken into consideration in determining how much steam appellant is required to furnish. Any reasonable interpretation of the lease of 1911 leads to the conclusion that appellant should furnish as much live steam as he was furnishing when that lease was made, and in addition, should furnish steam sufficient to operate the new machinery and appliances contemplated by the parties, and for which an increased rental was agreed to be paid. The only limitation placed upon this obligation of appellant was that the live steam be furnished through a 1-inch pipe. The final decree should be formulated so as to give force and effect to this view of the contractual obligations of the parties.

Supplemental Opinion.

Since handing down this opinion, application was made for a modification of the decree. The application was heard, but before any decision was arrived at, the parties through their counsel concluded an agreement, stipulating the terms and conditions upon which the steam was to be used and furnished. We entirely approve this method of adjusting differences, and direct a copy of the agreement to be filed with the record in this case. When the record and agreement are remitted to the court below, a final decree can be entered embodying the terms and conditions upon which steam is to be used and furnished in accordance with the provisions of that contract dated May 22, 1914.

[2] As to the exhaust steam, we have concluded, taking into consideration all the facts and circumstances disclosed by the record, the evidence was sufficient to warrant the finding that appellant at the time of making the 1911 lease, entered into a contemporaneous oral agreement to provide appellees with the same quantity of exhaust steam for their laundry business as they had theretofore received under their prior tenancy, and that this contemporaneous oral agreement was an inducement to the execution of the lease of 1911. This was a distinct finding of the learned chancellor before whom the testimony was taken, and such a finding will not be reversed on appeal except for manifest erNo such manifest error appears upon this record, and therefore we must regard *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 91 A.-54

ror.

The decree will be modified as herein in-, furnish with the same connections as existed dicated, and the record is remitted for this at the commencement of this suit, without purpose. Costs to be equally divided between any unfair obstruction; also that appellees the parties. were entitled to exhaust steam. In the case in which that decree was entered, there was a reversal here, and the record was remitted, with directions to modify the decree

(245 Pa. 441)

BAUER et al. v. BYRD. (No. 3.)

(Supreme Court of Pennsylvania. March 2, so as to require appellant to furnish live 1914. Supplemental Opinion May 22,

1914.)

INJUNCTION (§ 219*) – DISOBEDIENCE OF DE

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CREE-CONTEMPT-APPEAL.

A decree, adjudging the defendant in an injunction suit guilty of contempt of court for disobeying decrees restraining him from removing a pipe which supplied a laundry with steam and from shutting off plaintiffs' steam supply, will be reversed where it appears that such decrees are contradictory and erroneous with respect to the size of the pipe through which defendant is required to furnish the steam.

[Ed. Note.-For other cases, see Injunction, Cent. Dig. §§ 439-441; Dec. Dig. § 219.*] Appeal from Court of Common Pleas, Philadelphia County.

Injunction by Louis C. Bauer and another, trading as the American Laundry, for rule to show cause why John Byrd should not be adjudged in contempt of court. From decree for plaintiffs, defendant appeals. Re

versed.

See, also, 91 Atl. 847, 848.

Argued before FELL, C. J., and MESTREZAT, POTTER, ELKIN, and STEWART, JJ. Ira J. Williams and Joseph P. Gaffney, both of Philadelphia, for appellant. Joseph R. Embery, of Philadelphia, for appellees.

steam through a 1-inch pipe, and in accordance with the views expressed in that opinion

relating to the rights of the parties.

In this state of the record appellant should not be adjudged in contempt so as to make this a permanent and binding decree of the court against him. It was the duty of appellant to comply with the decrees of the learned court below in good faith, but when those decrees were conflicting and indefinite in some respects, and erroneous in others, the time has not yet arrived when it can be said that the facts constituting the contempt have been clearly and satisfactorily established as the rule requires. To permanently adjudge one to be in contempt for violating a decree, subsequently determined to be of no binding force, would be an extreme and unjustifiable exercise of judicial power.

Supplemental Opinion.

Since writing and handing down the opinion in this case, the parties by an agreement in writing have stipulated the terms and conditions upon which the steam is to be used and furnished, and the court now expresses its approval of that agreement, which was duly executed May 22, 1914. This agreement in the future will be accepted as defining the legal rights of the parties and will be the guide to all concerned.

Decree reversed and petition dismissed.

Costs to be equally divided between the par

ties.

(245 Pa. 411)

v. GREEK CATHOLIC CHURCH OF ST. MICHAEL THE ARCHANGEL. (Supreme Court of Pennsylvania. May 22, 1914.) CORPORATIONS (§ 49*)-TITLE TO CHARTERFRATERNAL SOCIETY.

ELKIN, J. This is an appeal from a decree adjudging appellant to be in contempt for violating certain decrees of the court below relating to the furnishing of steam to appellees for use in their laundry business. The decree awarding the preliminary injunction restrained defendant from cutting off the exhaust steam or lessening the supply of live steam at a pressure of 60 pounds to the COMMONWEALTH ex rel. TODD, Atty. Gen., leased premises; and also from interfering with the pipes through which the live steam was furnished. After hearing, the final decree required appellant to furnish live steam through a 12-inch pipe in the same manner and to the same extent as it was furnished at the commencement of the suit. It was further ordered that appellant refrain from altering or interfering with the 12-inch pipe. This is one of the decrees, for the violation of which appellant was adjudged to be in contempt. We have just decided in another case that appellant was only required to furnish live steam through a 1-inch pipe under the terms of the contract. Hence the decree the terms of the contract. Hence the decree requiring him to furnish live steam through a 12-inch pipe, being improvidently entered, was reversed.

The other decree adjudged appellees to be entitled to such pressure of steam, for use in their business, through a 12-inch pipe, as the capacity of the boilers may reasonably

An organized "brotherhood" obtained a charter of incorporation designated by a Russian name, which translated was the "Greek Catholic Church Brotherhood of St. Michael the Archangel," but in the English translation, which also appeared in the charter, the word "Brotherhood" was inadvertently omitted. After this charter had been used by the members of the brotherhood for nine years, a church congregation styled the "Greek Catholic Church of St. Michael the Archangel" was formed by such members. Held, that the brotherhood, and not the congregation, was the owner of, and had the sole right to operate under, the charter. [Ed. Note.-For other cases, see Corporations, Cent. Dig. § 137; Dec. Dig. § 49.*]

Quo warranto by the Commonwealth, on the relation of M. Hampton Todd, Attorney General, against the Greek Catholic Church

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

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