on that street, and it became harder and harder to keep the pavement up. The borough determined to put down a block stone pavement. That, we think, they had a perfect right to do. It was within the discretion of the borough to do so, and I think that neither the court nor jury would have any right to say that it was not a proper exercise of their discretion to determine to put down a block stone pavement on that important street. street. It became necessary, according to the evidence,-and it was uncontradicted,-that the street where the car tracks were laid should be changed in its level or grade, the block stone pavement being built much flatter than a good macadamized road would be. The street-car line occupied the center of the street. They were notified to make their tracks correspond to this necessity of a change of grade or improvement,-it is immaterial which you call it. I am unable to see any difference between the two, whether you call it an improvement or change of grade. It became the duty of the railway company, when the borough authorities determined to make a change in the grade, to make its tracks correspond. Now, the evidence of the defendants themselves-and there is no contradiction as to that-is that they undertook to do that merely by sinking their rails some six or eight inches, leaving the balance between their rails in the same position. Well, I will say to you that they did not conform to and comply with the conditions of their contract that, when 'a change of grade or improvement was to be made, the railway should be changed to conform to said grade or improvement.' The borough authorities gave notice to the defendant that they were about to pave this street with block stone, and required them to put their tracks in repair, to correspond with said proposed improvement. The time given-seven days-was short. So far as the testimony shows, the company did not make any objection to that. They did not ask for any more time. They didn't undertake to do it, and then the city or the borough authorities did it, and claimed to collect the cost of lowering the street at this place, and making the tracks correspond with the new grade or improvement, and for the repair of the road. They asked the company to pay for it. If it was a reasonable repair of the road between the tracks, and for a foot on each side, that it should be paved with Belgian block stone, then it is conceded that the amount claimed by the borough is right, namely, the sum of $9,471.32. The defendant claims, though, that it was not bound to pay any part of this expense. We think they were clearly bound, having neglected to make their track correspond with the improvement or change of grade, (simply having lowered the rail, without anything more,) to pay for the expense of lowering their whole track. We are not prepared to say-on the contrary, we instruct

you that it does not follow-that they were bound to pave with Belgian block stone. We leave that to you as a question of fact to determine. The borough councils had a right to pave with Belgian block, or asphalt, or anything else, the portion of the street on each side of their track, going within a foot of it, and require that the railway company keep its share of the street in good repair, in reasonable correspondence with the balance of the street, having proper regard to the travel on the street. If they had reduced their track to the proper grade, and had it in good repair for travel, then they are not bound to pay any part of the expense. If they had neglected to do this, and refused to do it, then they are liable for the cost of reasonably reducing this track to the proper grade, and for the reasonable repair to keep it in the condition that the company had agreed to keep it in; namely, 'to keep in good repair that portion of the street between the tracks, and a space of one foot on each side thereof.' Now, there is testimony-and it is largely by witnesses called for the defense-in regard to the manner in which this track was kept in repair for public travel. Mr. Taylor, the borough engineer, Mr. Ecoff, Mr. Campbell, and others, say that it was bad; that the track stood up in places from the grade; that it was dangerous, and had been so, and I recall no testimony that contradicts that. Mr. Taylor, the engineer, says that experience has shown you cannot keep a street-car track or road in good repair simply by macadamizing it, unless you put block stone or something of that kind on each side of the rail. For a short distance the company had done this. He says that is necessary to put a track in repair, or to keep it in repair, and gives you the reasons. He also told you, even if you put 9 inches of broken stone on each side of the rail, and then fill the balance with broken stone, what is the difficulty of keeping that in good order. Now, if this track was out of repair, and it was necessary to repair it, and the company, on notice, neglected to repair it, then the borough was entitled to do so at the cost of the company, and to do it in a reasonable manner. If it were necessary to do it by putting in block stone on each side of each of the rails, then that cost would be the necessary and reasonable expense, and then, if it were necessary to have something filled in, in the balance of the ground between the tracks, also the cost of that. If you find that the reasonable way of repairing, and the cheap way in the end for the railway company, was to pave it with the block stone clear through, the cost of that would be the reasonable and proper expense. Now, those are questions of fact for you to determine, and, as you find the facts, you will find the verdict."

The offer of evidence refused was as fol lows: "Defendant's counsel proposed to prove by the witness that at the time the

crdinance was passed, on September 4, 1890, the contract had been let for the improve ment of Fifth avenue from what is known as the 'Iron Bridge' to the city line, and also for the improvement of Third avenue from Market street to the Youghiogheny bridge; this for the purpose of showing that the contract was let for these streets at the time of the passage of the ordinance of September 4, 1890, and the McKeesport Passenger Railway Company had the right to locate its tracks on those streets, and afterwards did locate its tracks thereon, without paying any portion of the improvement, for the purpose of showing the intention of counciis as late as September 4, 1890; that the McKeesport Passenger Railway Company should not be liable for the improvements of any streets under their ordinances except those that would be improved upon contracts that were entered into subsequent to the passage of that ordinance."

The ordinance in question granted to defendant the right of way on Third avenue from Market street to Walnut street, a distance of one square, and on Evans avenue from Fifth avenue to Irvin avenue, a distance of about 4,500 feet, and ratifying, re-enacting, and confirming the company's rights on the streets mentioned in the ordinance of September 22, 1886; also the right to change from a horse railway to an electric railway, and the necessary rights to effect such a change. It also provided that defendant should construct a double-track railway on Fifth avenue from Market street to Evans avenue as soon as the improvement on Fifth avenue was completed. "On all streets hereafter contracted to be improved within the borough limits, said company shall pay an assessment equal to the cost of the improvement between its tracks and lines lines of tracks, and on all streets traversed shall keep the space between its tracks and lines of track in complete repair." This ordinance was finally passed by council, approved by the burgess, and accepted by the company on the 4th day of September, 1890.

E. P. Douglass, for appellant. W. B. Rodgers and R. C. Rankin, for appellee.

This case involved quesPER CURIAM. tions of fact, which were clearly for the consideration of the jury, and hence defendant company's request for binding instructions in its favor was rightly refused. The offer of evidence recited in the second specification was rightly excluded. The subjects of complaint in the third, fourth, fifth, and sixth specifications are portions of the learned judge's charge recited therein respectively. There appears to be no error in either of these of which the defendant company has any just reason to complain. The contract obligation into which it entered by accepting the ordinance of the borough, was right

ly construed by the court. Neither of the specifications of error is sustained. Judg ment affirmed.

WAGNER et ux. v. PITTSBURGH & W. E. PASS. RY. CO.

(Supreme Court of Pennsylvania. Nov. 13, 1893.)

NEGLIGENCE OF STREET-RAILWAY COMPANY-UNGUARDED EXCAVATION.

Plaintiff was injured by the wheels of her wagon getting into an excavation made by the removal of cobble stones on a turnpike road between the rails of defendant street-railway company. The excavation was near a bridge which the turnpike company was raising, and at the time of the accident was unguarded and unlighted. There was evidence that the excavation was made while the tracks were being replaced at the turnpike company's expense to conform to the bridge, and that this work was being done under the directions of defendant's superintendent, and by men in defendant's em ploy; and it appeared that the public was accustomed to use defendant's tracks for driving. Held, that the question of defendant's negligence was properly left to the jury.

Appeal from court of common pleas, Allegheny county; S. A. McClung, Judge. Action by Matthew Wagner and Mary Wagner, his wife, against the Pittsburgh & West End Passenger Railway Company for injuries to said Mary Wagner. From a judgment for plaintiffs, defendant appeals. Affirmed.

Defendant company's tracks were on a toll road owned and maintained by the Chartiers & Robinson Township Turnpike Company. At, and for some time previous to, the accident, the turnpike company was engaged in the work of rebuilding and raising its bridge over Corks run on the line of the toll road, and this work rendered it necessary to remove the cobble stones and lift the tracks of the street-railway company for a short distance on either side of the bridge, to meet the change in the elevation of the bridge. About half past 2 o'clock in the morning of July 21, 1891, the plaintiff, in company with her son, left their home in Chartiers, in a two-horse spring wagon, to come to Pittsburgh. They drove along the river road, and had reached a point just at the upper end of Corks run bridge, where the work was still in progress, when the front wheels of their wagon dropped down between the tracks into the excavation made by the removal of the cobble stones, and Mrs. Wagner, the plaintiff, was thrown from her seat in the wagon to the ground, and sustained the injuries complained of.

Geo. C. Wilson, for appellant. James K. Wallace and J. R. Braddock, for appellees.

PER CURIAM. It is no doubt true that it was competent for defendant company to show that the injury complained of was due to the negligence of others; but, unfortunately for it, there was evidence that the

repairs out of which the injury grew were under the immediate charge of its officers, while the railway was in actual operation by the company. The public had a right, and, it appears, was accustomed, to use the tracks in common with defendant; and, if the track was put in such a condition as to render it dangerous to public travel, it was the duty of those having charge to give adequate warning. Others may have been culpably negligent, but there was certainly evidence which justified submission of the question of defendant company's negligence to the jury. Neither of the specifications of error is sustained. Judgment affirmed.

GRAFF et al. v. CALLAHAN. (Supreme Court of Pennsylvania. Nov. 13, 1893.)

LIABILITY FOR NECESSARIES FURNISHED FAMILY. The head of a family is not relieved from paying a balance due for merchandise ordered by different members of the family, and necessary for its maintenance and support, by the fact that he gave the storekeeper notice not to give credit to any member of the family, where he subsequently waived such notice by permitting them to go to the store and get goods on credit, and to take produce from off his farm to make part payments.

Appeal from court of common pleas, Armstrong county; Calvin Rayburn, Judge.

Assumpsit by Graff & Firth, for use of Peter Graff & Co., against Michael Callahan. From a judgment in plaintiffs' favor, defendant appeals. Affirmed.

The court charged the jury as follows: "This is an action brought by Graff & Firth, now for use of Peter Graff & Co., against Michael Callahan, to recover a balance which the plaintiffs allege is due from the defendant, Michael Callahan, to them on a book account. The plaintiffs offer in evidence before you their book account beginning with July 13, 1875, showing the items of credit, -that is, showing that this firm alleges they sold to Michael Callahan, or to his family, and also showing what credits Michael Callahan is entitled to. Now, under the rules of court, the book account having been filed with the declaration and made part of it, and an affidavit having been made to it, the plaintiff would, in offering that copy of the book account as filed before you, make out what is known in law as a 'prima facie case;" that is, if there was nothing said against that claim as it stood, that the plaintiff would be entitled to recover as claimed in that book account. The defendant comes upon the witness stand, and says in your hearing that he is not responsible for the payment of this claim, for the reason that he notified the firm of Graff & Firth that he would not be responsible for credits given to members of his family. It appears that there had been a settlement about July, v.27A.no.14-64

1875, between the firm and Mr. Callahan. That this settlement was made with Mr. E. D. Graff. That there was given by Mr. Callahan to Mr. Graff a note which Mr. Graff states they took, not as credit at the time, but for the purpose of collection. That the note went to protest, and they had to bring suit upon it to recover the amount; and that in their settlement with Mr. Callahan they deducted from the amount of this note the expenses which Graff & Firth were compelled to pay for the collection of it. That seems to have enraged Mr. Callahan somewhat, and that he gave notice to their Mr. E. D. Graff that he would not permit his family to get credit at the store any more. There was just a balance of fourteen dollars and some cents coming back to Mr. Callahan, and he thought it ought to be more; and he, Mr. Callahan, states that he gave this notice to Mr. E. D. Graff in the presence of Mr. Claypoole. We will say to you that if Mr. Callahan gave notice to this firm not to trust the members of his family, and that the firm afterwards did trust them without Mr. Callahan's knowledge, they would not be entitled to recover for such credits given. Mr. Graff testifies before you that he was not a member of the firm at that time at all; he was only bookkeeper and clerk; and that when he made the settlement with Mr. Callahan that the conversation took place in the office, and that before Mr. Callahan went away he asked him whether or not, after be had cooled down somewhat, he would give credit to his family, and that Mr. Callahan told him that he could, and that Mr. Callahan afterwards came and was asking for the fourteen dollars and some cents, the balance due at that settlement, and Mr. Graff informed him at that time that it had been exhausted or drawn out by members of his family getting goods at the store. There is one thing you will notice in this case: There is no dispute but what these goods were furnished; there is not any dispute on the part of the defense but what these different persons got the goods as alleged by the plaintiffs in this case. Now, the only way that the defendant can keep from being responsible for the payment of this amount will be by his defense that he gave notice, and that the firm went on and gave the credit without authority from him. Now, in concluding whether or not that notice is such as the defendant says it is, you must take into consideration all the circumstances surrounding this case,-how it was the goods were furnished to the members of the family of Michael Callahan. There were John, and Kate, and Mary, Biddy, Mike, and William, and that they lived with Michael Callahan at the time these goods were gotten. And you will notice by the book account the items of credit; that the credits are by eggs, butter, buckwheat, oats, corn, etc. Now, we will say to you, even if Michael Callahan did

give to the plaintiffs in this case a notice not to trust his family, that if afterwards he permitted his family to go there and get credit, and take produce from off the farm and pay for it, and that these goods went into his family with his knowledge, he would be responsible for the payment of it. He is the head of the family, and he is bound to provide for that family. There has been considerable evidence given as to the different persons who got these items, and what the items were,-what they consisted of. You will recollect that it was sugar and meat, coffee, and such things as would go to mair tain and support a family; that they would go into the family. If they did not go into the household of Michael Callahan, if he did not get them, why, he would not be responsible for them; but if they went into his family, and with his knowledge, for the support and maintenance of that family, he would be responsible for them. There has been some evidence in reference to wool that was brought there. There is some dispute as to that. Michael Callahan testifies that this wool came from sheep that belonged to the boys. One or two of the clerks of the firm of Graff & Firth, or Peter Graff & Co., testify that at one time Michael Callahan, Jr., and Michael Callahan, his father here, came there with a load of wool,-that was in August, 1882, I believe,-and that they purchased some items at that time from the store, and the balance of that cargo of wool was credited on the account at the instance and instruction of either Michael, Jr., or Michael, Sr., I don't remember which; you will remember that testimony. Now. Michael Callahan comes upon the witness stand and testifies that his son Michael was not at home at that time; that he was in Colorado; that he left about the 1st of May, 1882. John Callahan testifies the same thing. Frank Graff, the clerk, who seems to have done the dealing in that transaction, says Michael was there. Hugh Sheridan was called, and says Michael Callahan was in the country at that time, because he remembers seeing him pass his place in September, 1882. Mr. Sheridan was sick and saw him; and the reason he remembers of it was because the other boys came in and inquired how he was, and he remembers it distinctly on that account. Now, you have two witnesses on the one side, and two on the other side; two to each story; two that he was at home, and two that he was not. Now, it will be for you, gentlemen, under all the circumstances, to say which of these parties is correct in that. And you will take into consideration, in determining this case, whether or not the defendant is responsible for the payment of these goods. All the circumstances surrounding it show that the persons who got these goods were members of Michael Callahan's family at that time, and that the goods gotten were of a nature that would be required

in a family; that the credits allowed were just such things as would come from a farm, or a family who are dealing in a country store."

The assignments of error are as follows:

"First Specification. The court erred in not sustaining the objection to the following offer of evidence: 'Mr. Leason: We offer copy of account with the affidavit thereto attached. Mr. Patton: We object to it because the affidavit to the account does not purport to be made by the plaintiff in the case, and in fact has not been made by any of the plaintiffs in the case, but by E. D. Graff; and the affidavit does not show on its face any authority of E. D. Graff to make the affidavit, the rule of court requiring the affidavit to be made by the plaintiff. The Court: The rule of court being rule 40, § 5, we will overrule the objection, and give you exception and sealed bill. Calvin Rayburn. P. J. [Seal.]' The affidavit to said account being as follows: 'Armstrong county-ss.: Before me personally came Ed. D. Graff, who, being duly sworn according to law, says the foregoing account is just, true, and correct; that it is correctly copied and taken from the plaintiffs' books of original entry; that the charges therein were made at or about the times of their respective dates; that the goods, etc., were sold and delivered, money furnished, at or about the times the charges were made; the charges are correct, and the account just. The defendant is not entitled to any other or greater credits than that above allowed, as he verily believes. E. D. Graff. Sworn and subscribed August 20th, 1888. Sam'l N. Lee, J. P. [Seal.]' Rule of court No. 40, § 5, being as follows: 'Sec. 5. When the the action is brought in whole or in part on book account, the plaintiff shall not be permitted to give evidence of his book accounts, unless he shall file with his declaration a copy of his book entries, together with a statement of all credits to which he knows the defendant is entitled, (whether such credits appear on the plaintiff's books or not,) verified by an affidavit setting forth (1) that the copy of the account filed is correctly taken from the plaintiff's book or books of the original entry; (2) that such charges were made at or about the times of their respective dates; (3) that the goods were sold and delivered, or the work done, at or about the time the charges were made; (4) that the charges are correct, and the account just; (5) that the defendant is not entitled to any other or greater credits than those stated on the copy of the account filed.'

"Second Specification. The court erred in its general charge, as follows: 'Now, under the rules of court, the book account having been filed with the declaration and made part of it, and an affidavit having been made to it, the plaintiff would, in offering that copy of the book account as filed, before. you, make out what is known in law as a

"prima facie case," if there was nothing said against that claim as it stood, that the plaintiff would be entitled to recover as claimed in that book account. Mr. Patton: We take exception to the general charge, and to the affirmance of plaintiff's points, and the refusal of defendant's points. The Court: Exception granted, and bill sealed. Calvin Rayburn, P. J. [Seal.]'

"Third Specification. The court erred in its answer to the defendant's first point, which point and answer are as follows: (1) That the affidavit to the plaintiff's claim in this case having been sworn to by E. D. Graff, who was not a member of the firm of Graff & Firth, and no reason being given in said affidavit why the same was made by a stranger to the record, it was not sufficient to make out a prima facie case for the plaintiff. That point is refused. Mr. Patton: We take exception to the general charge, and to the affirmance of plaintiff's points and the refusal of defendant's points. The Court: Exception granted, and bill sealed. Calvin Rayburn, P. J. [Seal.]'

"Fourth Specification. The court erred in admitting the testimony of Frank Graff, as follows: 'Frank Graff, sworn; examined by M. F. Leason: Question. Do you remember of a transaction concerning wool in 1882, August 2? Mr. Patton: You are a son of Peter Graff's? Answer. Yes, sir. Q. And are interested in his estate? A. Yes, sir. Q. When did your father die? A. He died on April 9th, 1890. Mr. Patton: We object to the witness testifying to anything that occurred in the lifetime of Peter Graff, he being interested. Mr. Leason: We propose to ask the witness concerning the item of August 2d, 1882, 181 pounds of wool, $59.73,what he knows about it. Mr. Patton: We object to the witness testifying to anything that occurred in the lifetime of Peter Graff, except such conversation or matters in which Michael Callahan was interrogated about on his examination; Peter Graff being dead, and the witness being his son and interested in his estate, and therefore incompetent. The Court: Objection overruled, and exception granted to the defendant, and bill sealed. Calvin Rayburn, P. J. [Seal.] A. Yes, sir. Mr. Leason: Relate what you know about it. A. I know that Mr. Callahan, there, and young Mike, brought some wool up to the factory, and then came down to the store, had it charged to Mr. Callahan, and he told the bookkeeper-I don't remember whether it was my brother Ed. then-to credit the balance to his account. Q. Mr. Graff, there is an item of credit April 22d, '87, of 23 and 7-60 bushels of potatoes. Who gave you the price for those potatoes? A. William Callahan. Q. And they were charged at that price,-credited at that price? A. Credited up at that price. Q. What was it? A. 35c. per bushel. Q. Do you remember who was with him, if anybody? A. Mr. Callahan was with him one day. Q. Michael

Callahan? A. Yes, sir. Q. When he had potatoes? A. Yes, sir; when he settled up the potato deal. Q. Was anything said about what would be done with the money in Mr. Callahan's presence? A. I don't recollect that, but my impression was that it was to be credited up. Q. Was the money paid to Mr. Callahan? A. There was no money paid; it was to be credited on his account. Q. Did he know that at the time? Mr. Patton: We object to that. The Court: Proceed. A. He was along; I suppose he knew. William seemed to be doing the ordering, though; gave me the price, etc.; said to credit it up to his father's account. Q. His father was there? A. Yes, sir. Q. And present? A. If I recollect, his father was sitting in the wagon, and this was in the store.'

"Fifth Specification. The court erred in its general charge, as follows: 'Now, we will say to you, even if Michael Callahan did give to the plaintiff in this case a notice not to trust his family, that if afterwards he permitted his family to go there and get credit, and take produce from off the farm, and pay for it, and that these goods went into his family with his knowledge, he would be responsible for the payment of it. He is the head of the family, and he is bound to provide for that family. Mr. Patton: We take exception to the general charge, and to the affirmance of plaintiff's points and the refusal of defendant's points. The Court: Exception granted, and bill sealed. Calvin Rayburn, P. J. [Seal.]'

"Sixth Specification. The court erred in its general charge, as follows: 'And you will take into consideration, in determining this case, whether or not the defendant is responsible for the payment of these goods. All the circumstances surrounding it show that the persons who got these goods were members of Michael Callahan's family at that time, and that the goods gotten were of a nature that would be required in a family; that the credits allowed were just such things as would come from a farm, or a family who are dealing in a country store. Mr. Patton: We take exception to the general charge, and to the affirmance of plaintiff's points, and the refusal of defendant's points. The Court: Exception granted, and bill sealed. Calvin Rayburn, P. J. [Seal.]'

"Seventh Specification. The court erred in its answer to plaintiff's first point, which point and answer are as follows: (1) If the jury believe that Michael Callahan allowed credits on the account himself far in excess of the amount of the goods purchased personally, it is evidence from which the jury may find that the family of the defendant purchased goods at the store of the plaintiff and from the plaintiff with his, the defendant's, knowledge and consent. That point we affirm. Mr. Patton: We take exception to the general charge, and to the affirmance of plaintiff's points and the refusal of defendant's points. The Court: Exception granted,