of the court below in giving binding instructiens to the jury to find in favor of the defendant was entirely justified. None of the specifications of error are sustained. The judgment entered on the verdict directed by the court below is affirmed.

MITCHELL, J., dissents.

(198 Pa. 16)

GARNER v. CITIZENS NATURAL GAS CO. (Supreme Court of Pennsylvania. Jan. 7,

1901.)

NEGLIGENCE EVIDENCE.

Where an employé of a gas company, desiring to force some water out of its line, in the discharge of his duties enters by mistake the works of another gas company, and opens valves producing an excessive pressure, causing an explosion destroying property of plaintiff, negligence of his employer may be inferred.

Appeal from court of common pleas, Beaver county.

Action by Mary J. Garner against the Citizens' Natural Gas Company. Judgment for plaintiff. Defendant appeals. Affirmed.

One of the assignments of error is as follows: "The court erred in that portion of his charge to the jury which reads as follows: "The plaintiff alleges that she lost her goods and sustained physical injuries by reason of an explosion of natural gas in the house of Patrick McKenna, in which she was domiciled at the time, on the night of September 27, 1897, and that these injuries and the loss of her goods were sustained by reason of an excessive pressure of natural gas in the low-pressure mains of the Bridgewater Gas Company, and that this excessive pressure was due to the act of the defendant's employé in turning on a by-pass of the Bridgewater Gas Company, and that this was done by the employé in the discharge of his duties. If these facts be true, then you have a right to infer negligence on the part of the defendant company; and, no contributory negligence having appeared on the part of the plaintiff, then, under these conditions, the plaintiff has made out a prima facie case that, without answer by the defendant, would entitle her to recover.'"

Harry Calhoon and Edwin S. Craig, for appellant. William B. Cuthbertson and Alfred P. Marshall, for appellee.

PER CURIAM. It must be admitted that Mrs. Garner sustained a substantial loss in the destruction of her property by an explosion of natural gas on the night of September 27, 1897, igniting and burning the house of Patrick McKenna, in the borough of New Brighton, in which she was occupying two rooms. It must also be admitted that the evidence in the case, if credited by the jury, was sufficient to charge the defendant company and its employés with negligence which

was the cause of her injury and loss. It was the province of the jury to determine from the evidence whether the defendant was in any degree responsible for the occurrence and its consequences; and, if it was found by them to be without fault in the premises, that would be an end of the case. It seems, however, that they found the defendant properly chargeable with negligence and the consequences which were the result of it. The evidence showed that the property of Mrs. Garner destroyed by the fire was worth $700, and that the evidence in this particular was not controverted. The testimony showing the effect on the health and strength of Mrs. Garner was for the consideration of the jury, and there was no appearance of exaggeration in it. The amount of the verdict was not unreasonable, and we discover no cause in the matters herein before referred to for disturbing it. To this we may add that we find nothing in the specifications of error which requires a reversal of the judgment. Judgment affirmed.

(198 Pa. 180)

WEST v. EMANUEL, (Supreme Court of Pennsylvania. Jan. 7, 1901.)

DRUGGISTS-SELLING PATENT MEDICINES

NEGLIGENCE.

A druggist is not required to analyze the contents of each bottle or package of a patent or proprietary medicine which he gets from the manufacturer. If he delivers it to a customer calling for it with the label of the proprietary or patentee on it, he is not negligent.

Appeal from court of common pleas, Allegheny county.

Action by Mary E. West against Louis Emanuel for death of plaintiff's daughter, alleged to have been caused by a Kohler Headache Powder, sold to her by defendant. Judgment for defendant. Plaintiff appeals. Affirmed.

O'Brien & Ashley, for appellant. Geo. H. Quaill, for appellee.

PER CURIAM. At the close of the plaintiff's case, and on motion of the defendant, the court entered a compulsory nonsuit, which, on application of the plaintiff, it refused to take off. As the evidence introduced by the plaintiff failed to establish or disclose a cause of action against the de fendant, the nonsuit was properly entered. The Kohler Headache Powders were in demand at least 12 or 15 years ago, and from that time on they were to be found for sale in most, if not all, of the principal drug stores. They were recognized and regarded as an efficient and proper remedy for headaches, and were mainly used to relieve them. They were a patent or proprietary medicine, manufactured by Kohler, and sold by him to the drug stores, which sold them to their customers. In the sales of patent or proprie

tary medicines furnished by the compounder of the ingredients which compose them the druggist is not required to analyze the contents of each bottle or package he receives. If he delivers to the consumer the article called for with the label of the proprietary or patentee upon it, he cannot be justly charged with negligence in so doing. Judgment affirmed.

(198 Pa. 81)

In re SCHUSLER'S ESTATE. (Supreme Court of Pennsylvania. Jan. 7, 1901.)

TESTAMENTARY CAPACITY—EVIDENCE.

An inference of want of testamentary capacity is not justified by evidence that testator drank alcoholic liquors excessively for some years prior to his death, and was intoxicated most of the last year of his life; it appearing that when not intoxicated he had testamentary capacity, and that he was not intoxicated when the will was executed.

Appeal from orphans' court, Allegheny county.

In the matter of the estate of Adam Schusler, deceased. From a decree dismissing the petition of John Schusler and others, praying for leave to appeal from the decision of the register of wills in admitting to probate the will of deceased, and asking that the probate be vacated, and an issue as to testamentary capacity be awarded, petitioners appeal. Affirmed.

The opinion of the orphans' court, per Over, J., is as follows:

"The appellants allege that the decedent did not have testamentary capacity when he executed the paper admitted to probate by the register, and pray for an issue only as to that question. They did not adduce any direct evidence tending to show testamentary incapacity, but did adduce evidence tending to show that the decedent drank alcoholic liquors excessively for some years prior to his death, was intoxicated almost all the time for a year prior thereto, and we are asked to infer from these facts that he did not have testamentary capacity. The evidence, however, of the appellants themselves, supplemented by that of the appellee, shows clearly and satisfactorily that when not intoxicated the decedent had testamentary capacity, and it appears from the testimony of the scrivener and only living subscribing witness to the paper that he was not intoxicated when it was executed. An inference that he did not have testamentary capacity would not, then, be justified under all the evidence, and a verdict against the will could not be sustained. The demand for an issue, therefore, must be refused, and the appeal dismissed, at the cost of appellants."

Geo. C. Wilson, Wm. D. Evans, and M. W. Acheson, Jr., for appellants. W. B. Rodgers, for appellees.

PER CURIAM. The only question to be determined on this appeal is whether the decedent had testamentary capacity when he executed the paper admitted to probate by the register as his will. As we have carefully perused and considered the entire testimony in the case, we have no hesitation in declaring that the appellants have failed to establish a want of testamentary capacity in the execution of the will they have assailed. We therefore sustain the dismissal of their petition at their own costs, and affirm the decision of the register on the concise and brief opinion of Judge Over. The decision of the register is affirmed, and the appeal is dismissed, at the cost of the appellants.

(198 Pa. 250)

In re PITTSBURG WAGON WORKS. (Supreme Court of Pennsylvania. Jan. 7, 1901.)

APPEAL RECOMMITTAL.

It appearing by the paper books of the parties that an attachment execution was offered in evidence before the auditor, though he does not refer to it in his report, so that the conclusion follows that he sustained objection to it for reasons appearing in the evidence received by him, but not printed in the paper book, and it being necessary, for proper disposition of the questions raised, that the proceedings on the attachment be fully found, and the evidence to support the finding be returned by him, the case will be sent back for that purpose.

Appeals from court of common pleas, Allegheny county.

In the matter of the distribution of the proceeds of sale of real estate of the Pittsburg Wagon Works. From a decree overruling exceptions to the report of the auditor, appeals are prosecuted,-one by W. J. Kountz, executor; the other by Frederick Gwinner, trustee. Case recommitted.

J. Charles Dicken and D. F. Patterson, for appellant. W. A. Sipe, for appellee.

MESTREZAT, J. In disposing of these appeals, which are from the same decree, and were argued together, it is necessary to determine the effect of the attachment executions issued on the Phillips judgment to Nos. 222, September term, 1879, and 247, December term, 1898, of the court of common pleas No. 1 of Allegheny county. In the evidence, as certified by the auditor and printed in the appendix to the appellant's paper book in Kountz's appeal, the records and all the necessary papers in the attachment execution at No. 222, September term, 1879, appear to have been offered and received in evidence by the auditor. In the attachment execution proceedings at 247, December term, 1898, the appellant's counsel in the appeal of Gwinner and others offered the writ and all the papers in the case, but the offer was objected to as incompetent and irrelevant. The certified copy of the evidence as given in the appendix to the appellant's paper book in Kountz's ap

peal does not give a copy of the record or of the papers in this latter attachment execution. Nor does it show what ruling, if any, the auditor made on the offer and objection. In the appendix to the paper book of the appellee in Kountz's appeal, under the caption of "Offers before the Auditor," the attachment execution is referred to as having been "executed October 8, 1898," and the appendix to the paper book of appellant in the appeal of Gwinner and others contains a copy of the præcipe for the attachment execution, and of the part of the record showing that an attachment execution was issued and executed. The auditor does not find as a fact that an attachment execution was issued or served at No. 247, December term, 1898, nor does he refer to it in any way in his report. We are, therefore, led to the conclusion that he sustained the objection to the offer and excluded it for reasons appearing in the evidence received by him, but not printed in the paper book. The record discloses no exception to the auditor's action in regard to the matter, unless it be included in the first exception, which alleges that the auditor erred in not finding and reporting all the facts requested by the exceptant's counsel. The counsel in both appeals, however, have argued the question of the validity of the attachment execution. We deem it material and necessary for a proper disposition of the questions raised on this record that the facts in regard to the proceedings on the attachment execution at No. 247, December term, 1898, should be fully found, and that the evidence adduced to support the finding should be returned by the auditor, and printed for consideration by the court. The evidence not being before us, we are unable to determine the correctness of the auditor's action in regard to the attachment. We are, therefore, compelled to send the matter back to him. It will be his duty to ascertain the facts relative to the attachment, and report them, with all the evidence in support thereof, to the court below, with his conclusions of law.

We suggest, as the case goes back to the auditor, that he recast his report generally, and, in addition to his conclusions of law stated in the report he has filed, that he determine the right of the attaching creditor to attach the funds in the hands of the accountant, as trustee, at the dates, respectively, when it is alleged the two attachments were laid; the regularity of the proceedings on the first attachment; what was attached therein; and the right to issue and the necessity for issuing the fi. fa. on the judgment against the garnishee in the attachment execution at No. 222, September term, 1879; whether the title to the interests in the fund of the attaching creditor was secured by the attachment merely, or by it supplemented by the judgment and execution; the effect of the failure of Mrs. Kountz to show that the interests claimed by her were purchased with her own funds; and that he state his reasons

for his conclusion in each instance, supported by any authorities he may deem pertinent. These questions were all raised by counsel, and should have been disposed of by the auditor. We do not intend by these suggestions that the auditor shall take these matters up and dispose of them seriatim, but that he will embody in his report a full finding of the facts in all matters in controversy, with his conclusions of law thereon. The parties can file such exceptions as they may desire, and the matter will be in shape to have the questions raised on the record properly disposed of by the court. It is the duty of the appellant to print all the evidence reported by the auditor and necessary for a determination of the questions arising thereon. The cases are recommitted to the court below, with directions to refer them to the same or another auditor, with instructions, after hearing the parties, if they so desire, to report the facts on all matters at issue, with his conclusions of law thereon, and with the right thereafter to the parties to file such exceptions to said report as they may desire.

(198 Pa. 129) WAECHTER v. SECOND AVE. TRACTION CO.

(Supreme Court of Pennsylvania. Jan. 7, 1901.)

STREET RAILWAYS-COLLISION WITH TEAMNEGLIGENCE-DAMAGES-INSTRUCTIONS.

1. In case of collision between an electric street car and a team coming towards it, the horse, frightened by a locomotive, being partially beyond the driver's control, it is proper to charge that if the motoneer saw that the horse was keeping on the left-hand track, on which was the car, or was swaying back and forth to that track, and that he might happen to be there when he got up to the car, and he saw that the horse was not in control of the driver, it would be negligence to keep on, and run into him.

2. An instruction as to damages for loss of a wife is adequate where stating that the jury can only give plaintiff the money value of her life to him; that it is somewhat difficult to determine that; that they had, however, the circumstances in life of the parties, the age of the wife, and the husband before them; and that it was not a question of sentiment, but of pecuniary compensation.

Appeal from court of common pleas, Allegheny county.

Action by Christ Waechter against the Second Avenue Traction Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The charge of the court, the parts complained of by the second and third assignments of error being inclosed in brackets, is as follows:

"Gentlemen of the Jury: You were sworn as to three cases. You are now considering but one. Two of them were withdrawn from your consideration. The plaintiff in this case brought suit for each separate item of damage which he alleged resulted to him from the occurrence of this accident. He could

not so pursue his action, and he elected to proceed for the damages which he says were caused to him by the death of his wife. That is the only case which you have to consider, and you will dismiss the other matters from your minds.

"It is conceded that this plaintiff's wife was killed on, I believe, the 25th of April, 1897, by a collision between a buggy in which she was riding, which he was driving, and a car of the defendant company on Second avenue, He was coming down Second avenue in his buggy, and the car was going up. He had gotten in some way on the up track, or the track towards the river, and was about turning off it when the collision occurred. He alleges-and it is necessary that he should satisfy you of the truth of that before he can recover-that this accident occurred solely, as between the two parties, because of the negligence of the defendant company.

"I should caution you here that it is not necessary in these cases that you should find that any one is pecuniarily responsible when an accident of this sort occurs. Frequently these accidents occur without negligence upon the part of any one; and in that case, of course, the loss must fall upon the party who suffers it, and the law gives no compensation. Frequently it happens by the negligence of the party who is injured, and in that case, of course, there can be no recovery by him. Frequently it happens by the concurring negligence of the two parties, and in that case there can be no recovery by the plaintiff. The law says that where a party's own negligence contributes to the accident, although there may be negligence upon the part of the other person, there can be no recovery, and that is a rule of law which you are bound to obey as much as any other rule which governs your conduct and action in this case. The only case in which there can be a recovery is where, as between the two parties, the accident was the result solely of the negligence of the defendant.

"Now, what are the facts of this case? The plaintiff says that coming down this road his horse was frightened by the whistle of a locomotive on the right-hand side of Second avenue. We all understand, I think, the situation of affairs. The railroad right of way of the Baltimore & Ohio road is immediately north or on the upper side of Second avenue. The roadbed is raised up some six or eight feet, perhaps, above Second avenue, and held by a retaining wall. The train coming in,-coming up behind this buggy,-the plaintiff says, frightened his horse so as to deprive him of control of it to a certain extent. He says that the horse was not running away, but that he was shying away from the railroad train, and was perhaps plunging and going at some speed; but the particular point of the matter, in his theory of the case, is that, by the nearness of this train, the horse was driven over, in spite of

his efforts, to the wrong track, to the track next the river,-the one on which the car was approaching; and he says that notwithstanding the fact that it was patent, and that the motorman saw, or must have seen, if he was giving any attention to the matter, that he was without fault of his own upon that track, that he permitted his car, without slackening its speed, to run right into him, and that he caught him as he was attempting to get the horse under control,was pulling him away from that track; that he caught the buggy, and killed his wife. That is the theory of the plaintiff in his case.

"The theory of the defendant is quite a different one. The motorman says that he was coming up there, and that he was coming at a very slow rate of speed,-although, perhaps, the rate of speed, of itself, is not a controlling feature of this case, in any aspect of it; that he was coming up at a slow rate of speed; that the horse was frightened at this locomotive, but was on the proper track, and was on the track which would have cleared his car, and which did not require him to stop; but that when very near to his car the horse then shied, swayed across onto the other track, and ran into his car, and that thus the accident occurred. Now, as a matter of course, in this latter event there would be no responsibility upon the part of the defendant company, because, if you take the testimony of the motorman literally as to the speed of the car, then the force which caused this injury, when they did come together, was the force supplied by the speed of the horse, and not by the speed of the car. It was the horse and buggy running into the car, and not the car running into the horse and buggy.

"But even if the car was going more rapidly, if the horse was passing down upon the proper track, and there was nothing to indicate that he was likely to get over upon the other track, the motorman was not called upon to slacken his speed; and if, in spite of appearances, he suddenly swayed over on this track, and thus got into the way, then, while it might not be the fault of the plaintiff, it was not the fault of the defendant company, or their motorman, and was a mere accident, and, of course, there is no responsibility upon the part of the defendant.

"[But if the motorman saw this party coming down that track; if he saw either that the horse was keeping to the left-hand track,

that is, the track towards the river, the track on which he was,-or that the horse was swaying back and forth to that track, and that he might happen to be there at the time that he got up with his car; and if he saw that the horse was not in control of the driver of the buggy, then it would be evidence of negligence; it would be negligence for him to drive his car right on, and run into him, as a matter of course.]

"Both these parties had a right to be upon that street. It is a public street. It is undoubtedly a dangerous street,-a street

where care is required; but that suggestion has a double aspect. Both parties having a right to be there, the party who drives there should take due care. At the same time, the motormen of street cars should recognize the fact that it is a dangerous place, and they should recognize the fact that parties may be placed in positions of unusual danger, and they should take their share of the care to avoid accidents arising out of such danger as this.

"Now, you will, of course, go into this case, perhaps, first to determine whether or not the plaintiff was negligent. Did he use due care? Negligence is the want of that care which the circumstances of the case call for; the want of that care which an ordinarily prudent man would exercise under the circumstances. Did he go there with a horse so wild or so fractious that he should have known that an accident was likely to occur? Did he go there with a horse so much afraid of these public vehicles that it was negligence for him to put that horse upon that street? We cannot say, because a horse has frightened at a car once, that, therefore, that horse must be thrown away, given away, or not used. It is for you to determine, however, whether or not a horse is reasonably safe to drive upon a certain street. If he is not, it is negligence to take him there. The party who takes him there takes the risk of any injury. If the horse was one which should not have been driven there, then, of course, it was negligence upon the part of the plaintiff, and he could not recover. If, however, it was not negligence to take him there, did he handle him with reasonable care,-with such care as a prudent man would handle him? If he did not, he cannot recover. If he did, then you come to the question of the method of the occurrence of the accident. Was it a mere accident? Was it without negligence upon the part of the other party,-upon the part of the defendant? Was it the case of a horse running away, and getting unexpectedly in the way of a street car, and this melancholy accident resulting? If it was, there can be no recovery.

"Or was it a case where the injury resulted from the failure of the defendant company to perform the duty which was imposed upon it under the circumstances of the case? The rule of law is a rule of common sense; and you understand, of course, that in a case of this sort, where both parties are rightly upon a street, and without the fault of the man driving the buggy, his horse, owing to an accident that is not unusual, or to an occurrence that is not unusual, becomes partially beyond his control, and he is not able to keep upon the proper side of the street, and thus gets in the way of a street car, you understand, of course, that proper care requires the other party to do his share towards

avoiding an accident, and, if he sees this long enough beforehand, he should, if that is the proper thing to do, stop his car, or slacken its speed, and do all that reasonably can be done to avoid an accident.

"Applying these common-sense principles to the case, you determine whether or not the defendant company did by its negligence cause the accident which resulted in the death of this man's wife. If you find that it did not, you render a verdict for the defendant.

"[If you find that it did, then you come to the matter of damages, and that is simply a matter of dollars and cents. You can only give to this man the money value of his wife's life to him. Of course, it is some-. what difficult for you to determine what that is. You have, however, the circumstances in life of these parties. You have the age of the parties, perhaps not the age of the husband, but you have the husband before you. You see what sort of a man he is. You have the age of the wife. What is the money value of her life to him? It is not a question of sentiment; it is a question of pecuniary compensation. I can give you very little aid. You must, of course, be cautious and conservative. You must not allow yourself to be carried away by any considerations which are not proper in the case, but, in the exercise of a calm judgment, determine what the damages should be, if you conclude, under the instructions that I have given you, that damages should be awarded in this case.]

"The defendant has asked me to instruct you that, under all the evidence, the verdict must be for the defendant. This I decline to do. I leave the whole matter to you, under the instructions already given you."

Knox & Reed and George E. Shaw, for appellant. Thos. M. & Rody P. Marshall and Geo. H. Stengel, for appellee.

PER CURIAM. Appellant's first and only point presented for the consideration of the court was that, "under the pleadings and the evidence in this case, the verdict must be for the defendant." A denial of the point by the court resulted in assignment of error No. 1, and it was followed by assignments Nos. 2 and 3, which were founded on excerpts from the charge. The substance of the matters complained of in the assignments was that the evidence did not establish negligence on the part of the defendant, and that the charge relating to the measure of damages was inadequate. Notwithstanding the defendant's assignments, we fail to detect any error in the refusal of the court to affirm the only point presented for its consideration, or anything in the excerpts from the charge which can be characterized as errone ous instructions. Judgment affirmed.