The learned judge then proceeds to the consideration of the case upon the two distinct and only matters alleged as constituting negligence on part of the company: First, that the train at the crossing of Berwick street was moving at a higher rate of speed than was reasonably consistent with the public safety; and, second, that no warning was given of the train’s approach. Referring to the rate, he instructs the jury that there is no fixed rule; that the speed of a train may vary according to the 10cality,—what would be safe at one point would be imprudent at another; and, in substance, that the jury must consider whether the rate was reasonable under the circumstances. After a reference to the testimony of the witnesses, and to their respective opportunities to know, he submitted in the plainest manner the question “whether upon the night of the accident a proper notice of the approach of the train was given.” The whole theory and tenor of the charge, outside of the paragraph assigned for error, is that the company was bound to the exercise of “ordinary care and prudence” only; and the learned judge, in the expressions “every care” and “any act,” used in the paragraphs referred to, manifestly meant “every care” and “any act” which, under the circumstances, ordinary prudence would have suggested, and we think the jury must certainly have so understood him; especially as the only alleged acts of negligence were in other parts of the charge separately discussed, and correctly presented for their consideration. The language, owing tothe ellipsis, is perhaps unfortunate; but,_taken with the remaining portion of the charge, it is susceptible of no other meaning than we have given it, and the jury could not have been misled by it.

The case was one, we think, for the determination of the jury under all the evidence. We find nothing on the record which we think should work a reversal of the judgment. The judgment is therefore affirmed.

MURRAY 12. MCCARTHY and others.1
(Supreme Court of Pennsylvania. October 4, 1886.)

MORTGAGE—DEFEASANCE—ABSOLUTE SALE—EVIDENCE.

A., by deed, conveyed a certain farm to B., who on the same day executed a defeasance to the effect that if, within three years, he (A.) should repay B. all due to him, the farm would be reconveyed to him. The farm subse uently being sold at sheriff’s sale under judgments against A., and purchase by 0., the latter brought ejectment against B. On the trial the court permitted B. to introduce evidence showing that the deed from A. to B. was an absolute sale. and that the defeasance was an after-consideration, and was not part of the transaction, but a mere agreement that was never complied with. Held, that there was no error in the admission of this evidence.”

Error to common pleas, Huntingdon county.
Ejectment by John 0. Murray against A. R. McCarthy and Daniel

Piper, for 73 acres of land in Shirley township, Huntingdon county. Both parties claim under William Young, who was the admitted and. undisputed owner of the premises on February 2, 1880. On that day he executed a deed absolute on its face, conveying the premises in fee to A. R. McCarthy, the consideration therein expressed being $700. This was recorded on January 24, 1881. On the same day was executed the following agreement or defeasance by A. R. McCarthy:

“To whom it may concern .' Whereas, William Young, of Shirley township, Huntingdon county, Pa., has this day deeded his farm in said township (70 acres more or less) to me in consideration of about $700 of claims that I hold against him and it, I hereby agree that if in three years he has paid me back all claims, interest, and expenses thereon, I will deed back the property to him; or if by that time he has paid within $100 of the claims, interest, and . expenses 1 may have incurred, I will give- him another year to pay the bal

ance; and this chance to be open for the time specified both to him and his children. A. R. MCCARTHY.” [Seal.]

This was never recorded. On the same day a lease of the premises for one year from April 1 , 1881, to William Young and Madison Young, his son, was executed by the parties. On April 19, 1882, the premises were sold by the sherifi‘ on a judgment against William Young, and were purchased by John 0. Murray, who brought this ejectment, claiming that the deed and defeasance constituted but a mortgage, and was consequently discharged by the sheriff ’s sale. Under exception of plaintiff’s counsel, the court permitted defendants to introduce evidence to show that the deed by Young to McCarthy was an absolute sale of the premises, and that the defeasance Was an after-consideration, and was not part of the transaction, but a mere agreement that was never complied with. Verdict and judgment for defendant, whereupon plaintiff took this writ. The admission of this evidence, and the refusal of the court to charge the jury that the verdict should be for the plaintifi‘, because the deed and defeasance bear the same date and were executed contemporaneously, and that there is no evidence to vary the legal effect of the papers as an unrecorded mortgage, are the errors complained of.

Petrikin dc McNeil, for plaintiff in error.

N o evidence should have been received to vary the legal effect of the two papers as constituting an unrecorded mortgage. Col'well v. Woods, 3 Watts, 188; Kerr v. Gilmore, 6 Watts, 405; Brown v. Nickle, 6 Pa. St. 390. The jury should have been instructed to find for plaintiff, as this mortgage was discharged by the sheriif’s sale. Friedley v. Hamilton, 17 Serg. 80 R. 70; Jaques v. Weeks, 7 Watts, 261; Reitenbaugh v. Ludwick, 31 Pa. St. 131; Rankin v. Mortimere, 7 Watts, 372; Wilson v. Shoenberger, 31 Pa. St. 295; Umbenhower v. Miller. 101 Pa. St. 71.

Geo. B. Orlady, for defendants in error.

This evidence was relevant to the issue, and properly admitted. 1 Whart. Ev. § 3; 1 Best, Ev. 10; 1 Greenl. Ev. 3; Plumer v. Guthrie, 76 Pa. St. 441; Paige v. Wheeler, 92 Pa. St. 282; Stewart’s Appeal, 98 Pa. St. 377; Burger v. Dankel, 100 Pa. St. 113; Umbenhower v. Miller, 101 Pa. St. 71; Huoncker v. Merkey, 102 Pa. St. 462. The proof necessary to convert a deed into a mortgage must be clear, precise, explicit, unequivocal, and indubitable. Plumer v. Guthrie, 76 Pa. St. 441; Todd v. Campbell, 32 Pa. St._250; Burgerv. Dankle, 100 Pa. St. 113 ; Logue’s Appeal, 104 Pa. St. 136; Hartley’s Appeal. 103 Pa. St. 23; Huoncker v. Merkey, 102 Pa. St. 462; Rowand v. Finney, 96 Pa. St. 196; Htester v. Madeira, 3 Watts 85 S. 388.

PER CURIAM. We see no error in the admission of evidence, nor in refusing to affirm the points submitted by the plaintiff. The jury have found that the execution of the deed and the giving of the mortgage were not one transaction. The execution of the mortgage was an after-thought. It was after the deed had been delivered.

There is no error in the charge of the court. Judgment aflirmed.

IN'roxrcA'rrNe LIQUORS—DRUGGIST—VERDICT or JURY.

A drugIgist was indicted for selling intoxicatindg liquors to be used as a beverage. he verdict of the jury was that “we fin the defendant guilt of selling liquor without license.” Held, that this was no offense for a ruggist, and that defendant should be discharged.

Error to quarter sessions, Clearfield county.

Indictment for selling intoxicating liquors to be used as a beverage, by the commonwealth of Pennsylvania, against Dr. John W. Rhoads. The facts are stated in the opinion of the supreme court.

McEnally d’e McCurdy, for plaintiff in error.

This verdict amounted to an acquittal of defendant of the offenses charged in the indictment. Sharfi‘ v. Com., 2 Bin. 514; Girts v. Com., 22 Pa. St. 351; Heikes v. Com.,26 Pa. St. 514; Com. v. Trimmer, 84 Pa. St. 65; Updegrafi‘ v. Com., 6 Serg. & R. 5; Com. v. Porter, 10 Phila. 217. He should be discharged, as he has been once in jeopardy.

Smith V. Wilson, Dist. Atty., for the Commonwealth.

At all events, if the verdict was improper, a centre facias de nooo should be awarded. Whart. Crim. PI. 85 Pr. § 510; State v. McCauZess, 9 Ired. 375; Whart. §§ 792, 800, 895.

GREEN, J. If the defendant had been indicted generally, and as an ordinary person, for selling liquor without license, the verdict would have sustained the sentence, and there would have been no error in the judgment. But he was not so charged. He was indicted specifically as a druggist for selling liquor without license to be used as a beverage. The verdict found him guilty of selling liquor without license, simply saying nothing about its being used as a beverage. The difficulty in the case is that as a druggist he was not necessarily guilty of any offense in the mere selling of liquor without license. He might sell without license if he sold it in the preparation of medicine, or on the prescription of a physician. Had the jury found a general verdict of guilty, there could have been no exception to it. But for some reason they did not do that, but found only a certain fact; and that fact, against such a. person, is not 'vof itself sufficient to convict of any crime. If the jury wished to find the facts specially, of course, it was their duty to find all the facts which compose the crime charged. It is clear that, under this indictment, the \defendant, being charged with selling liquor as a druggist, must be found ‘130 have sold it not in the preparation of medicines, and without the prescription of a physician, or at least that he sold it to be used as a beverage. Any one or all of these facts would have been presumed to be found had the verdict been, generally, “guilty.” But that not being the case, and only a part of the facts being found which are necessary to make out a crime against a person charged as this defendant was, it follows that the verdict is insufficient to sustain the sentence. Of course, if the indictment had been general, and the defendant pleaded that he sold as a druggist, the burden of proof would have been upon him to show all the facts which gave him exemption. But, as it was, the commonwealth, conceding the defendant to be a druggist, assumed the burden, not only of charging, but of proving, his technical guilt as such. Failing to obtain either a general verdict of guilty, or a special verdict which found all the facts essential to establish the charge, the judgment should have been arrested. As the defendant was certainly in jeopardy under the indictment and the evidence, we do not see how he can be again tried under the same indictment. The judgment of the court below is reversed, the sentence is set aside, . and the defendant discharged without day.

LEHIGH VAL. R. Co. v. GREINER and others.1
(Supreme Court of Pennsylvania. October 4, 1886.)

1. NEGLIGENCE—CONTRTBUTORY—EFFECT 0F.

Where a man negligently and without excuse places himself in a position of known danger, and thereby suffers an injury at the hands of another, either wholly or partially by means of his own act, he cannot recover damages for the injury sustained. The contributory negligence which prevents recovery for an injury, however, must be such as co~operates in causing the injury, and without which the injury would not have happened.

2. SAME—MASTER AND SERVANT—PLATFORM. A., an employe in the shops of a railroad company, was accustomed to ride home from work upon a train composed of a “gondola” car, tender, and enine; his usual seat being upon the back platform. He had been warned requently that that place was dangerous, and requested to take a seat in the car. While sitting in his usual place, the train was run into by another train, and A. sustained injuries from which he died. Held, that his widow and children had no cause of action against the railroad company, because contributory negligence would be presumed from such facts.

Error to common pleas, Luzerne county.

Case by Ernestina Greiner and others against the Lehigh Valley Railroad Company, for damages for the death of plaintiff’s husband, caused by defendant’s negligence. The facts are stated in the opinion of the supreme court. Verdict and judgment for plaintiff for $1,000, whereupon defendant took this writ. '

1Edited by Henry R. Hatfield, Esq., of the Philadelphia bar.

H. W. Palmer and E. P. 60 J. V. Darling, for plaintiff in error.

The case is one of clear and undoubted contributory negligence on the part of Greiner. Railroad Co. v. Jones, 95 U. S. 439; Camden di- A. R. Co. v. Hoosey. 99 Pa. St. 492; Dogyett v. Illinois Cent. R. 00., 34 Iowa, 284; Little Rock (9 Ft. 8. Ry. Co. v. Miles. 13 Amer. & Eng. R. Gas. 10; Pennsylvania R. Co. v. Langdon, 92 Pa. St. 21; Pittsburg d2 0. R. 00. v. McClarg, 56 Pa. St. 298; Kentucky Cent. R. Co. v. Thomas, 79 Ky. 160; Houston di- T. C'. R. R. v. Clemmons, 55 Tex. 88; Peoria d} R. I. R. R. v. Lane, 83 111. 448.

S. J. Strauss and John Lynch, for defendants in error.

The fireman who had charge of the colliding engine was negligent. Lackawanna d3: B. R. Co. v. Chenewith, 52 Pa. St. 382. Greiner, at the time of the accident, was not an employe. Baird v. Pettit, 70 Pa. St. 477. Greiner was not negligent, as defendant, by the exercise of ordinary care, could have prevented the injury. Whart. Neg. § 325; Priest v. Nichols, 116 Mass. 401: Railway 00. v. Bondron. 92 Pa. St. 475; Creed v. Pennsylvania R. Co., 86 Pa. St. 139; Whart. Neg. 131; Weiss v. Pennsylvania R. Co., 79 Pa. St. 387; Pennsylvania R. Co. v. Weber, 76 Pa. St. 157; Sehum v. Pennsylvania R. Co., 16 Wkly. Notes Gas. 305; Germantown R. Co. v. Walling, 97 Pa. St. 55; W. P. P. Ry. Co. v. Gallagher, 16 Wkly. Notes Gas. 413.

CLARK, J. It is a principle of law well settled in this state that where a man negligently and without excuse places himself in a position of known danger, and thereby suffers an injury at the hands of another, either wholly or partially by means of his own act, he cannot recover damages for the injury sustained. The contributory negligence which prevents recovery for an injury, however, must be such as co-operates in causing the injury, and without which the injury would not have happened. Gould v. McKenna, 86 Pa. St. 302. The true test is found in the affirmative of the question, did the plaintiff’s negligence directly contribute, in any degree, to the production of the injury complained of ? If it did, then there can be no recovery; if it did not, it is not to be considered. Creed v. Pennsylvania R. Co., 86 Pa. St. 139; Passenger R. Co. v. Boudrou, 92 Pa. St. 480.

The question of negligence is ordinarily a question of fact, and ought to be submitted, under proper instructions, to the determination of a. jury. Where the facts are disputed, where there is any reasonable doubt as to the inference to be drawn from them, or when the measure of duty is ordinary and reasonable care, and the degree varies according to the circumstances, the question cannot, in the nature of the case, be considered by the court. It must be submitted to the jury. Graml-ich v. Wurst, 86 Pa. St. 78. But where the facts and the inferences therefrom are undisputed, where the precise measure of duty is determinate,—the same under all circumstances,—where a rule of duty in a given exigency may be certified and accurately defined, the question is for the court and not the jury. McGally v. Clarke, 40 Pa. St. 406; Reeves v. Railroad Co., 30 Pa. St. 454; Schnm v. Pennsylvania R. Co., 107 Pa. St. 8. It has been held, in a number of cases, that it is the plain, imperative duty of a traveler, before crossing the track of a railroad, to stop, look, and listen for approaching trains, and his failure so to do in case of injury has been declared not to be evidence of negligence merely, but negligence per se,