(245 Pa. 479) It is conceded for the lessees that the failure [ court, to say what damages properly resulted to keep a night guard on watch did not cause from defendant's breach of its contract. the fire, but it enabled the incendiary to consummate his design of setting fire to the shop. The judgment is reversed and a venire de While, therefore, it is clear that the loss was novo awarded. the direct and immediate consequence of the fire, it is equally clear that it was not the direct and immediate consequence of a failure to keep up a night watch. Such a loss cannot reasonably be assumed to have entered into the contemplation of the parties. The contract was that a night guard should be employed; the breach was in not having such a guard; the 1. MINES AND MINERALS ($ 70*)—MINING damage looked to in making the contract was the expense of such guard and not the probable or possible or remote damage that might occur. SHIFFER et al. v. HUDSON COAL CO. (Supreme Court of Pennsylvania. May 22, 1914.) LEASE - ACTION FOR ROYALTY- QUESTION FOR JURY. under a mining lease binding the lessee to pay Where, in an action for the balance due a certain rental in monthly installments until So here the failure of the electric appara- the lessee believed that the amount paid for tus to give the appropriate signal may have coal not mined equaled the royalty value of the unmined coal yet on the premises and caenabled the invader of the house to consum-pable of being worked, the evidence left doubtmate his design, but it did not cause the bur- ful the question of the bona fides of the lesglary. see's expressed opinion that it had paid such amount, such question was for the jury. Minerals, Cent. Dig. §§ 192-197; Dec. Dig. [Ed. Note.-For other cases, see Mines and § 70.*] The result of the court's submission of the question to the jury was a recovery by plaintiff for an act of negligence which at best was a remote cause of the loss. Admitting the facts to be as claimed by the plaintiff, the learned trial judge should have held that they did not show defendant's negligence to have been the proximate cause of plaintiff's loss, and he should have limited the damages recoverable to those sustained by reason of the breach of contract. [5] The appellee mistakenly assumes in the brief submitted that this point was otherwise decided in the former appeal reported in 240 Pa. 571, 88 Atl. 6, which was from a judgment sustaining a demurrer to plaintiff's declaration. The learned trial judge in sustaining the demurrer had filed no opinion, and we were left to conjecture his reasons. The contention of appellee on argument was that because the declaration averred a contract and a breach of duty by defendant thereunder, notwithstanding it further averred a tort through negligence, plaintiff's exclusive remedy was by action in assumpsit. We declined to accept this view, holding that the declaration was sufficient to call for a plea, and we accordingly reversed, with leave to plead. Whether the tort alleged was in itself actionable or otherwise was not the subject of contention, nor was a decision of the question called for. Notwithstanding its insufficiency, a right would still remain in the plaintiff, under the declaration in the case, to recover on account of the admitted breach of the contract. "The weight of authority, says Bell, J., in Livingston v. Cox, 6 Pa. 360, has put it' beyond question that, though the action may be in form as for a tort, yet if the subject of it be based on contract, the suit will be attended by all the incidents of an action ex contractu." [6] For the reasons given we sustain the second assignment of error, without, however, limiting the plaintiff's right of compensation to the amount paid by him for the wiring of his house as there stated. It will be for the jury, under proper instructions from the 2. MINES AND MINERALS (§ 70*)-MINING LEASE-CONSTRUCTION. The right given the lessee to suspend payment of the rental under a mining lease proion of its proper officers, have paid for as much viding that if the lessee should, in the opincoal as still remained in the premises unmined and capable of being worked, it should give notice thereof, and thereupon, subject to certain conditions, be relieved from payment of further rental, was dependent upon the exercise of due diligence by the lessee. [Ed. Note.-For other cases, see Mines and Minerals, Cent. Dig. §§ 192-197; Dec. Dig. § 70.*] 3. ESTOPPEL (§ 90*)-MINING LEASE-RECOV ERY OF ROYALTY. That the lessors failed to object to the suspension of payment of rental under a mining lease, pursuant to a provision authorizing of the opinion that the rental paid on unmined such suspension whenever the lessee should be coal equaled the coal yet unmined, did not estop representatives of the lessors, after the death of the lessors, from recovering the unpaid rental, on the ground that the lessee's expressed opinion was not bona fide and that lessee did not exercise due diligence in the matter, where it did not appear that it had relied on the conduct of the lessors. [Ed. Note.-For other cases, Cent. Dig. §§ 242-244, 248-256; Dec. Dig. § see Estoppel, 90.*] 4. MINES AND MINERALS (§ 70*)-MINING LEASE CONSTRUCTION. *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes the estate of Thomas Stem, deceased, and others, against the Hudson Coal Company, for rents and royalties due under a coal lease. From judgment for plaintiffs, defendant appeals. Affirmed. The facts appear in the following opinion of Fuller, P. J., sur defendant's motion for a new trial: in monthly installments of $400 each, the payment of which rentals shall entitle the second demised premises 1,250 tons of coal of larger party (lessee) to mine and remove from the sizes than pea coal in each month of each and every year during the continuance of this lease." And then it allows the lessee to make up in any subsequent year the deficit between the payment of minimum rental and actual mining in any year, without interruption of minimum, by the provision "that if in any one This action of assumpsit was brought June year such rentals be paid and the total quan9, 1908, by the legal representatives of the tity of such coal mined in that year shall be original lessors in a certain lease of coal, less than the total quantity which such payagainst the assignee of the original lessee, to ment of rentals should entitle the second parrecover certain coal rents and royalties which ty (lessee) to mine as aforesaid, the deficit may accrued after the assignment. The lease was be mined and removed in any subsequent year made in 1894 by Lacoe, Shiffer, Ford, and during the continuance of this lease, without Stem, to the Langcliffe Coal Company, Lim- further payment, but this provision shall in no ited, of all the coal under certain land in Lack-wise affect or interrupt the monthly payments awanna county, "to have and to hold until all of fixed rental as above agreed upon.' But the merchantable coal available by careful min- nowhere does the contract disclose any intening should be mined out." The lessee agreed to tion to absolve the lessee from payment of the pay during the continuance of the lease the minimum rental, except in the twelfth coveannual rental of $4,800, in monthly install- nant, viz.: "If at any time or times, the secments of $400, for which payment it was en- ond party shall in the opinion of its proper. titled to mine each month 1,250 tons of coal officers, have paid for as much coal which they above the size of pea. In addition to this have not mined as still remains in the premminimum rental, the lessee also agreed to pay ises unmined and capable of being worked unat the same time for all coal above the size der this agreement, they shall give notice thereof pea actually mined in excess of 1,250 tons, of to the first parties, and thereupon each parat a royalty of 32 cents per ton, for all pea ty shall choose a competent and disinterested coal actually mined, at a royalty of 20 cents mining engineer, who shall select a third comper ton, and for all buckwheat coal actually petent and disinterested mining engineer, and mined, at a royalty of 10 cents per ton; the the three so chosen shall make all necessary different sizes being determined by the mesh examination of the premises and receive such through which the coal was screened. Be- other proper evidence and tests as shall be tween 1894 and 1897 the lessee paid mini- sufficient to determine the amount of coal unmum rental amounting to $13,600, and mined mined therein, taking into account such coal coal of all sizes amounting to $4,600, thus leav- as is required to be mined under the provisions ing a deficit of $9,000. Then it ceased to make of this agreement; and the second party further payment, claiming that it had paid agrees, at its own expense, to furnish such for all of the merchantable coal on the premises evidence and make such actual tests as will available by careful mining, although it con- be sufficient for that purpose. And if on such tinued its mining operations until 1901, when examination, proof and tests, it shall be shown the deficit had been reduced to $7,000. In 1901 and proved by the second party that it has it assigned the lease to the defendant, who paid rentals as aforesaid upon all the coal in went into possession and has been mining said premises minable as aforesaid, the seccoal under the lease from that time until the ond party shall thereupon not be required to present. make any further payments of rent or royalties until it shall have mined out the quantity upon which rentals have been so paid, and thereafter it shall only be liable to pay rentals or royalties upon coal mined in excess of the amount on which rentals or royalties have been so paid, using due diligence to complete the mining of the same. Provided, however, that whenever the party of the second part, by virtue of this clause and the proceedings above indicated, shall have ceased paying the fixed monthly rentals aforesaid for a period of ten years, the parties of the first part may at their option terminate this lease and proceed to recover possession of the demised premises as in case of forfeiture for nonpayment of rentals when due." Lacoe died in 1899; Shiffer and Ford in 1901. By 1905 the actual mining covered the deficit, and thereafter the defendant tendered payment for coal actually mined, aggregating, to January 1, 1912, $8,888.13, and during the year from June, 1907, to June, 1908, also tendered payment of the minimum rental; but all tenders were refused, as the plaintiffs stood upon the contention that they were entitled to full payment of the minimum rental during the entire period. In fact, from 1894, when the lease was made, until the time of the trial, in March, 1912, no payment was ever made for the smallest sizes of coal, but the mining thereof was credited upon the actual payment of minimum rental, and no payment was made of the minimum rental, except the sum of $13,600, paid by the original lessee between 1894 and 1897, nor was any tender of payment made, except by the defendant, as just stated, in 1905, down to 1908, when this action was instituted for the arrearages on both accounts, accruing since 1901. During the entire period, possession and mining under the lease have been continuous, and at the time of the trial upwards of 12,000 tons of merchantable coal still remained available, thus establishing the continuance of the lease and imposing liability for the amount of the verdict, unless such a result be obviated by the defense which has been set up. The lease stipulates: "The second party (lessee) will pay or cause to be paid to the first parties (lessors) from the first day of October, A. D. 1894, the annual rental of $4,800 during the continuance of this lease, payable The defendant undertook to bring itself within the benefit of this twelfth covenant, not through the medium of disinterested mining engineers at all, but through the opinion of the original lessee formed in 1897 and communicated to the original lessors then living, since deceased, who so far as the evidence shows made no objection. It will be observed that the covenant does not expressly constitute the engineers a board of arbitration, nor provide for an award, and we held the opinion upon the trial that the right to suspend was only dependent upon the formation by lessee of an honest, intelligent opinion, communicated to the lessors and fortified by examination. Accordingly, we charged the jury thus: "The lessees' right to claim the benefit of this covenant No. 12 and suspend the minimum payments of rental is_conditioned and depends upon these things: First, the proper officers of the lessee should have come to the honest and intelligent opinion that all the coal in the ground had been paid for; second, they should then have given notice to that effect to the lessors and selected a competent and disinterested mining engineer for the investigation; then, if the lessors did their part as agreed and made a like selection, all the machinery would be set in motion to decide the matter properly, but, if the lessors failed to do their part and make a selection so that no further steps along that line could be taken as agreed, the lessees should still make such investigation, if not already made, as would reasonably justify the formation of an opinion in respect to the quantity of coal left unmined. It is very plain, I think, that the lessee could not of its own sweet will arbitrarily decide to suspend payment on pretext of an opinion, unsupported by reasonable investigation or knowledge of the conditions. It should be an honest and intelligent opinion, formed in good faith, on adequate knowledge." Then, after an exhaustive review of the testimony, we submitted the case with this final instruction: "If you find as a fact that the original lessee in good faith, with honest intention and intelligent knowledge, after notice to the lessors in conformity with covenant No. 12, suspended payment of the minimum rental, the verdict in this case should be in favor of the plaintiffs for only $9,469.55; if you fail to find such a fact (and the burden to establish the fact is upon the defendant), your verdict in that event should be in favor of the plaintiffs for the full amount, $48,180." These figures were concededly correct, according to the alternative adopted. The evidence on the subject is fully recited in our charge, to which we refer. It consisted chiefly of contemporaneous testimony given by the engineer and the treasurer, who were also stockholders, of the original lessee, and who only acquired competency to testify against the representatives of the deceased lessors by parting with their stock. Fortified though it was, we could not have withdrawn from the jury the credibility of these witnesses, particularly in light of the fact, established by later develop ment of the property, that they were in error to the extent of 50,000 tons, more than twice the quantity mined at the time of suspension. The failure of the lessors, Shiffer, Lacoe, and Ford, old men, to combat the claim of deficiency during the few remaining years of their lives, was not a fact of controlling significance, and, while a jury would have been fully warranted in taking defendant's view of the question, we are unable to say that they were not warranted in taking the opposite view. Furthermore, conceding that the suspension of minimum payments in 1897 was proper under the circumstances, the period of suspension, nevertheless, was limited, in the language of the twelfth covenant, by the "use of due diligence to complete the mining." This phase of the matter seems to have been overlooked at the trial, but clearly it should be considered. The fact of deficiency could not be conclusively determined by the judgment of the lessee, even though honest, intelligent, and fortified by the finding of engineers in the manner stipulated, for such a conclusion might be refuted, as it was refuted, by actual development of the property. The privilege of suspension is coupled with the obligation to catch up and finish as fast as possible in the exercise of due diligence, and not to stop or to loiter at pleasure. In this case, in the absence of the countervailing proof, which it was incumbent upon the defendant to produce, due diligence is prima facie determined by the minimum annual payment of $4,800 for 15,000 tons above the size of pea, at 32 cents per ton, which tonnage added to the incidental production of smaller sizes, as shown by the mining under this lease, amounts to nearly 20,000 tons per year. The minimum, in other words, expressed the under standing of the parties as to what would constitute a fair year's mining. During the period from 1894 to 1897, however, the mining only averaged 8,000 tons, from 1897 to 1901 only 2,000 tons, from 1901 to 1905 only 9,000 tons, from 1905 to 1908 only 3,000 tons, from 1908 to 1912 only 5,000 tons, and over the entire period of the lease, from 1894 to the time of trial in 1912, eighteen years, a maximum mining is shown of only 90,000 tons, a general average of 5,000 tons, without disclosure of adequate cause for such an extraordinary deficit below the minimum. This surely_demonstrates a lack of due diligence after 1897 to complete the mining, and, regardless of the attitude manifested towards the original lessee by the original lessors prior to their deaths, fully justified their representatives in terminating the suspension, by notice, in 1902, to this defendant, would perhaps have justified binding instructions in favor of the plaintiffs, and furnishes persuasive reason against disturbing the verdict. [1-4] The defense in this case, as urged upon the trial and expressed in the reasons for a new trial, is principally predicated upon the contentions: (1) That the weight of credible evidence established the affirmative of the question submitted to the jury, on which their verdict by instruction of the court was made to hinge, viz., the bona fides of lessee's opinion in 1897; (2) that the attitude of the original lessors demonstrated their acquiescence in said opinion and now estops their representatives on the theory of defendant's reliance thereon in taking and working the property; (3) that a reasonable interpretation of the lease limits total payment to the royalty value of the original minable coal, which value is far less than the amount of the verdict, $48,180, added to the prior payment of $13,000, an inequitable result. The first contention is overruled because the preponderance was not so plain as to exclude the province of the jury, and also because the right of suspension was subject to the exercise of due diligence. The second contention is overruled because we fail to find any room for the operation of estoppel in favor of the defendant against the plaintiffs. No claim is made for the minimums which accrued from 1897 to 1901, anterior to defendant's acquisition of the lease. No proof was given or offered to show reliance by the defendant upon the conduct of the original lessors in failing to make objection, although an offer was made to show defendant's knowledge of such conduct. The representatives of the lessors did give notice of objection, which, coupled with the broken condition to exercise due diligence, revived the original obligation to pay minimum, if, indeed, the obligation was ever really interrupted. The third contention could not be sustained without making a new contract for the parties and doing violence to the decisions which hold that the contract governs, regardless of deficiency between amount paid and quantity minable. It is a plain case of stare decisis. Lehigh & Wilkes-Barre Coal Co. v. Wright, 177 Pa. 387, 35 Atl. 919; Lehigh Valley Coal Co. v. Everhart, 206 Pa. 118, 55 Atl. 864. The purpose of a minimum is to expedite removal of the coal and return of the property when removal is complete. It is not inequitable for lessors to claim literal enforcement of a stipulation which entails no injury upon a lessee using due diligence as defined in the contract. By the contract in this case, the lessee agreed to pay certain minimum rentals and royalties "during the continuance of the lease"; the lease continues "until all the merchantable coal available by careful mining shall be mined out"; upwards of 12,000 tons of such coal.have not yet been mined out; therefore the obligation to pay still continues unless obviated by covenant twelve; and for reasons already stated that covenant cannot obviate under the circumstances. The main distinction sought to be drawn Under the express provisions of the act of March 24, 1905 (P. L. 47), subordinate assessors are required to make assessments and valuations and the powers of the board of assessors are limited to an examination and revision of the valuations returned by the subordinate assessors for increasing or decreasing the same, and cannot go beyond this, except to add taxable property omitted by the as between this lease and those construed in the 14. TAXATION (§ 319*)-VALUATION-BOARD OF cases above cited, viz., the presence here of a ASSESSORS-POWERS. provision absent there, known as a "stop clause," enabling lessee on certain conditions to obtain relief, does not lead to any different result if the contractual conditions are not fulfilled, and so this case, like the others in the last analysis, must stand upon the contract. The suggestion of hardship in being compelled to pay for more coal than can be mined has been urged and ignored in all the cases, and in the present case the net hardship simply consists in paying, exclusive of interest, about $50,000 for about 100,000 tons of coal, making an average royalty of about 50 cents per ton, which is not inordinate in light of reputed profits derived from the business. Upon a dispassionate view of the whole case, while it presents difficulties and perhaps in volves material errors, we have concluded that the verdict should not be disturbed, and accordingly the motion for a new trial is denied. Verdict for plaintiff for $48,180 and judgment thereon. 'Defendant appealed. Argued before BROWN, MESTREZAT, POTTER, STEWART, and MOSCHZISKER, JJ. James H. Torrey, of Scranton, John T. Lenahan and Andrew H. McClintock, both of Wilkes-Barre, and Walter C. Noyes, of New York City, for appellant. F. W. Wheaton and P. F. O'Neill, both of Wilkes-Barre, for appellees. PER CURIAM. The facts in this case appear in the opinion of the court denying the motion for a new trial, and, for the reasons therein stated, the case was for the jury. We discover nothing in the assignments of error calling for its submission to another jury, and the judgment is therefore affirmed. (245 Pa. 515) Cent. Dig. §§ 514, 527-529, 532-534; Dec. [Ed. Note. For other cases, see Taxation, Dig. § 319.*I Appeal from Court of Common Pleas, Luzerne County. Injunction by the Delaware, Lackawanna & Western Railroad Company against the County Commissioners of Luzerne County and others. From decree refusing an injunction, plaintiff appeals. Affirmed. From the record it appeared that the plaintiff, the owner of certain tracts of coal land in the township of Plymouth, Luzerne county, filed a bill in equity complaining that the assessment and valuation upon its coal lands in said township was an unlawful, illegal, and void assessment, and by reason of such illegality the taxing authorities and the tax collector ought not to be permitted to collect any taxes thereon for the reason that the subordinate assessor had no part whatsoever in making the assessment, and that the valuation per acre was not determined by a consideration of what the coal lands would separately and bona fide sell for, as required by law, but arrived at on a basis and blanket rate per foot acre, regardless of conditions which would render the coal available or nonavailable, and praying that an injunction be awarded, restraining the tax collector from collecting a tax based upon such illegal and void assessment, and that the 1. TAXATION (§ 608*)-COLLECTION-INJUNC-assessment be declared illegal and void and TION. Equity will enjoin the collection of a tax only where there is either want of power to tax er disregard of imperative constitutional requirements. stricken from the assessment book. Other facts appear in the opinion of the Supreme Court. The court on final hearing dismissed the bill. Argued before FELL, C. J., and MESTREZAT, ELKIN, STEWART, and MOSCHZIS [Ed. Note.-For other cases, see Taxation, Cent. Dig. §§ 1230-1241; Dec. Dig. § 608.*] 2. TAXATION (8 608*)-COLLECTION-INJUNC-KER, JJ. TION-EXISTENCE OF OTHER REMEDY. A bill in equity to restrain the collection of a tax because of invalidity of the assessment was properly dismissed, where it appeared that the taxing authority had power to make the assessment and levy the tax, and that all the irregularities complained of could be corrected on appeal. [Ed. Note. For other cases, see Taxation. Cent. Dig. §§ 1230-1241; Dec. Dig. § 608.*] 3. TAXATION (§ 348*)-VALUATION-REALTY. The law requiring that the valuation of realty for taxation shall be based on the actual value limited and defined by the market value, is binding, not only on the taxing authorities, but on the courts, regardless of the apparent desirability of some other method of valuation. [Ed. Note.-For other cases, see Taxation, Cent. Dig. $$ 584-589: Dec. Dig. § 348.*] Benjamin R. Jones, Andrew H. McClintock, and F. W. Wheaton, all of Wilkes-Barre, and D. R. Reese, of Scranton, for appellant. William S. McLean, Jr., of Wilkes-Barre, M. J. Mulhall, of Pittston, John T. Lenahan and William S. McLean, Sr., both of WilkesBarre, for appellees. ELKIN, J. This bill was filed for the purpose of having the assessment upon which the special tax was levied declared illegal and void, and to restrain the defendants from proceeding in any manner to collect the tax in question. [1] Equity has power in a proper case to restrain the collection of a tax, but it is a *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes power that should be cautiously exercised, | er method of ascertaining the taxable value because as a general rule there is an ade- Scientific formulas, arithmetical deductions, quate remedy at law. Equity will only inter- and mental contemplations, have small value vene in such a case where there is either in making assessments under our practical want of power to tax or a disregard of im- system of taxation. The market value of perative constitutional requirements. Bang- the separate tracts at public sale, after due er's Appeal, 109 Pa. 79; Gas Co. v. Elk notice, is the legal basis recognized by our County, 168 Pa. 401, 31 Atl. 1077. statutes of determining the assessable value of real estate, and until the Legislature changes this method, it is binding, not only upon the taxing authorities but upon the courts as well. [2] In the present case the taxing authorities had power to make the assessment and levy the special tax, and the irregularities complained of can all be corrected on appeal as provided by law, without the intervention of a court of equity. Under all the facts this court does not feel warranted in reversing the decree entered by the learned court below and declaring the assessment illegal and absolutely void. We base our conclusion on the ground that appellant has an adequate remedy at law and that this remedy should be pursued. This decision must not be understood as an adjudication of the validity of the assessment, nor as an expression of approval of the method adopted by the board for the assessment and revision of taxes under the act of 1905 (Act March 24, 1905 [P. L. 47]). What we do decide is that every question presented for our consideration in the case at bar can be raised on appeal from the revised assessment under the law. There being an adequate remedy at law, a court of equity should be very slow to extend its restraining arm when by so doing the entire assessment would be stricken down. We assume that appeals are pending, and that the learned court below will have the opportunity of passing upon the merits of the questions raised here when the facts are presented on the law side of the court. In this connection it may be proper to remark that all parties concerned should approach the solution of the questions involved in a spirit of equity and fairness, keeping in mind the rules applicable to such controversies as laid down in several recent cases. The law is as well settled as it can be, and nothing of value can be added to what has already been said as to the legal and proper method of making as sessments. [3] The law requires that the valuation of real estate for the purpose of taxation shall be determined upon the basis of market value, or rather actual value, limited and defined by market value. What the law requires cannot be disregarded, no matter how desirable some method not authorized might prove to be. Pennsylvania Stave Company's Appeal, 236 Pa. 97, 84 Atl. 761. The proper method of making such assessments was very fully discussed in Lehigh & WilkesBarre Coal Company's Assessment, 225 Pa. 272, 74 Atl. 65, Philadelphia & Reading Coal & Iron Co. v. County Commissioners, 229 Pa. 460, 79 Atl. 109, and in several other recent cases. With these cases as a guide there should be no difficulty in adopting the prop [4] Nothing contained in the act of 1905, applicable to Luzerne county, changes the basis of determining assessable value. Under this act the subordinate assessors make the assessments and valuations, and it is made the duty of the board of assessment to "examine and revise the said valuation increasing and decreasing the same as in their judgment may seem to be proper or adding thereto such property or subjects of taxation as may have been omitted." It will thus be seen that by the express terms of the act the duties of this board are limited to an examination and revision of the valuations returned by the subordinate assessors, increasing or decreasing the same as in their judgment may seem proper. Beyond this the board of assessment cannot go, except to add taxable property that may have been omitted by the subordinate assessors. The act is too plain to be misunderstood, and there should be no difficulty in determining what the board may and may not do. It should be the effort of all parties concerned to fix the valuations upon a legal basis, and when this is done, there will be no occasion for further litigation. Decree affirmed at cost of appellant. (245 Pa. 496) CHARLES v. LEHIGH VALLEY R. CO. (Supreme Court of Pennsylvania. May 22, 1914.) JUDGMENT (8 199*)-CROSSING ACCIDENT JUDGMENT NON OBSTANTE VEREDICTO-EVIDENCE. tiff's husband from being struck by a locomotive Where, in an action for the death of plainat a crossing, there was nothing to indicate defendant's negligence other than the mere negative testimony of two witnesses that they of law that deceased stopped, looked, and lisheard no warning, and the bare presumption tened, and five disinterested eyewitnesses testified that ample warning was given, and that had not deceased negligently failed to stop, look, and listen he would have been aware of the approach of the locomotive, the court properly entered judgment for the defendant non obstante veredicto. [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 219-274; Dec. Dig. § 199.*1 Appeal from Court of Common Pleas, Luzerne County. Trespass by Angeline Charles against the Lehigh Valley Railroad Company, for death of plaintiff's husband. From judgment for defendant n. o. v., plaintiff appeals. Affirmed. *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |