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Francis M. McAdams, William H. Wilson, and Joseph P. Rogers, for appellant. Samuel W. Cooper, for appellee.

MOSCHZISKER, J. The plaintiff sued the defendant to recover on three promissory 110tes, all drawn in regular form, and each of them given by the latter for money received from the former. When this case Was here before (223 Pa. 568, 72 Atl. 891, 132 Am. St. Rep. 742) on the question of the sufficiency of the affidavits of defense, we said that it would be “the duty of the trial judge to submit for the consideration of the jury any meritorious defense the defendant may present.” The question as to whether or not the defendant WOuld be able to SuStain his defense by the proper measure of proof was not then before us. Gandy v. Weckerly, 220 Pa. 285, 69 Atl. 858, 18 L. R. A. (N.S.) 434, 123 Am. St. Rep. 691. It was for the trial judge to pass upon the question of the sufficiency of the evidence when the defendant Came to present his defense.

[1] The only real evidence produced by the defendant to overcome the written promisSOry noteS Was his OWn testimony, and We agree With the court below that this was entirely insufficient for the purpose. Phillips v. Meily, 106 Pa. 536; Fuller v. Law, 207 Pa. 101, 56 Atl. 333. While the defendant attempted to escape liability upon the plea that the understanding was that the notes Were mere memoranda betWeen him and the plaintiff of a joint-stock speculation, and that in the event of a failure to come out Whole on the transaction, he was not to be called upon to pay them, yet he nowhere in his testimony states that he ever said to the plaintiff, or that the plaintiff said to him, that the notes were not to be paid according to the terms of the written contracts. It is a very usual thing when one friend lends money to another and requests a note as an acknowledgment to remark as a matter of politeness that the written promise to pay is merely taken as a memorandum of the transaction to cover the contingency of death. The testimony of the defendant concerning the making of the notes in suit would be entirely consistent with such an incident. It may be that Mr. Fitler thought and understood that he would not be called upon to pay if the Stock transactions were not a Success, but the evidence falls far Short of justifying a finding that any such contract existed between the parties. The first, Second, and fifth aSSignments of error are Overruled.

[2] The third and fourth assignments are OVerruled for the reaSOn that the defendant's testimony shows that the stock dealings in question were not Wagering or gambling transactions.

The judgment of the Court below is affirmed.

(232 Pa. 18) STEEI v. LINN. (Supreme Court of Pennsylvania. May 17, 1911.) WILLS ($608*)—CoNSTRUCTION-DRY TRUSTRULE IN S11:LLEY'S ("ASE. Testator gave all his estate to his wife for life, and, on her death, the property to be divided between his four children named, “dureing their Natural lives then said property to be divided eauqly Among their natural Heirs, and I do hereby appoint H. trustee of my Four Children.” Held, that the children took a vested estate in the remainder, and the naming of the trustee created a dry trust executed by Statute, So as to give the children a legal estate, and, the devise over being a legal estate, # two coalesced under the rule in Shelley's aSe.

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Swearingen, P. J., filed the following opinion in the court below:

“Peter Wilbert died testate, June 29, 1880, Seised in fee of certain real estate, described in the case stated, situate in the borough of Carnegie, Allegheny county, Pa. He left a Will dated June 28, 1880, which was duly probated after his death, and the same now remains on file in the register's office of said County Of Allegheny, and is recorded in Will Book, vol. 22, p. 604. In said will the testator provided, inter alia, as follows: “Second. I give and bequeath to (Christina Lightner) nOW my beloved Wife all my real personal and mixed property to have and to hold the same for the balance of her natural life, for her OWn uSe and behoof and at her death then all of said property to be eaQuely divided between my Four Children, Peter, George, Chatharine, Menerva dureing their Natural lives then said property to be divided cauqly Among their natural Heirs, and I do hereby appoint William Hill Esq. the trustee of my Four Children and I do further appoint W. J. Steen and A. J. McQuitty my executors. The said Christina Wilbert, widow of Said testator, died May 20, 1882. William Hill, named as trustee in said will, never accepted said trust nor attempted to perform any duties as trustee.

“By deed of general Warranty, dated December 10, 1886, and duly recorded, the said four children, mentioned in said Will, conveyed said real estate in fee simple to Winifred Thomas; and that title is now Wested in Amelia R. Steel, the plaintiff. By written agreement dated March 9, 1910, the plaintiff and her husband agreed to sell and convey the aforesaid real estate in fee simple unto Peter Linn, the defendant, On Or before March 31, 1910, for the consideration of $8,250, of which $50 was paid in cash upon the

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execution of the agreement, and the remainder was to be paid on or before March 31, 1910. On March 30, 1910, the plaintiff tendered the defendant a proper deed for said real estate, and demanded the balance of the purchase money. The defendant refused to accept the deed and to pay the balance of purchase money, alleging that the plaintiff did not have a good and marketable title to said real estate. This suit was then brought to recover said sum of $8,200. The parties have agreed upon a CaSe Stated, Wherein they have stipulated that, if, in the opinion of the court, the said four children of Peter Wilbert, deceased, took title in fée to Said real estate, judgment shall be entered in favor of the plaintiff for the sum of $8,200; but if, in the Opinion of the Court, the Said four children did not take title in fee, that judgment Shall be entered in favor of the defendant. “TWO questionS Were Submitted for deciSion upon the argument: (1) Did the appointment of William Hill as trustee preVent the application of the rule in Shelley’s Case? (2) Did the said four children of the testator take an estate in fee under the rule in Shelley’s Case, or did they take a life eState only? “(1) We do not regard the naming of William Hill as trustee for the Children Of Peter Wilbert as having any effect upon the conStruction of the devise to them. No object for the Creation of a trust Was Specified in the will, nor were any duties prescribed for the trustee either with respect to the beneficiaries or with respect to the property devised. The trustee never did accept the appointment, and he never performed any duties thereunder. The trust Was a dry or passive trust, pure and simple, and it was executed by Virtue of the statute of uses. Therefore the eState Which the Said children took Was a legal, not an equitable, One, and the devise over, being a legal estate, the two can coalesce, under the rule in Shelley's Case. “(2) What Was the estate Which these children took under the said will? The rule in Shelley's Case is a rule of law, and is not merely a rule of construction of the language of a will. The question always is, Has the testator used language which brings the case Within the Operation of the rule? If he has done S0, his Supposed, or even declared, intentions are of no importance. Hileman V. Bouslaugh, 13 Pa. 344, 53 Am. Dec. 474; Kleppner v. Laverty, 70 Pa. 70; Curry V. Paterson, 183 Pa. 238, 38 Atl. 594. It seems Clear to us that this testator has used language Which brings the interpretation of this will within the rule in Shelley's Case. After the Widow's life estate terminated, the testator divided the remainder equally among his four children for their lives, and then directed that it should be divided equally among their natural heirs. In other words,

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the share of each ancestor should go to his respective heirs equally. This is not a mode of distribution contrary to the inteState laws, but it is in accordance with them. Appeal of Cockins, 111 Pa. 26, 2 Atl. 363. Therefore the rule in Shelley’s Case applies, and the four children Of Peter Wilbert took title to said real estate in fee. Reutter v. McCall, 192 Pa. 77, 43 Atl. 398; McCann V. Barclay, 204 Pa. 214, 53 Atl. 767.

“And now, to wit, December 31, 1910, being of Opinion that the law is With the plaintiff, it is Ordered that judgment be entered in favor of Amelia R. Steel, the plaintiff, against Peter Linn, the defendant, in the sum of $8,200.”

Argued before FELL, C. J., and MESTREZAT, POTTER, STEWART, and MOSCHZISKER, J.J.

John L. Prestley, Harry J. Nesbit, and James E. Little, for appellant. Herbert R. Hahn, Lyon & Hunter, and Harrison Bock, for appellee.

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*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes f| measuring pain. This is true.

5. CARRIERs ($ 303*)—INJURIEs To PAssENGERs—DEGREE OF CARE. A railroad company must stop its trains at stations a reasonable length of time to permit passengers to alight. [Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1216, 1218, 1224–1243; Dec. Dig. $ 303.*] 6. CARRIERs ($ 303*)—INJURIES To PASSENGEIRS—DUTIES OF CARRIER. Where a passenger is seen alighting, or could have been seen alighting, it is the '. o the carrier to allow him time to alight completely before starting the train. [Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1216, 1218, 1224–1243; Dec. Dig. § 303.*]

7. TRIAL (§ 194*)—INSTRUCTIONS - INTERESTS OF WITNESSES. In an action for personal injuries, it is proper for the court to call the attention of the jury to the number of witnesses, testifying to facts showing that plaintiff stepped off a moving train, and should refer to the number of witnesses on each side, their respective interests, opportunities for observation, and other matters affecting the weight of the evidence.

[Ed. Note:—For other cases, see Trial, Dec. Dig. § 194.*]

Appeal from Court of Common Pleas, Lackawanna County.

Action by John Bockelcamp against the Lackawanna & Wyoming Valley Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

At the trial it appeared that plaintiff, a man 52 years old, was injured on August 26, 1906, while alighting from a train at South Scranton station of defendant Company. At the trial the time book of the Delaware, Lackawanna & Western Railway Company, the plaintiff’s employer, Was admitted in evidence under the following objection: “Mr. Torrey: Objected to as not properly proven. Our understanding and information is that the time was differently kept on Sundays from what it was on other days, and We think it important that the perSon who kept the time or the time slips should be produced, and not secondary evidence. “Mr. O'Malley: This is offered for the purpose of corroborating the plaintiff, Bockelcamp, and the witness Berry. “Mr. Torrey: Objected to as incompetent, and not the best evidence. “The Court: Objection overruled. Exception noted for defendant at whose request a bill is Sealed. “Mr. O'Malley: State to the jury how many hours your time book shows were taken in for Mr. Bockelcamp On that date. “A. Seventeen hours on the 26th of August.” The court charged in part as follows: “Inasmuch as it is testified that this is a permanent injury and it is not contradicted, you can also consider, then, what will be the loss of his earning capacity, whether it is totally destroyed or partially

destroyed. You must also consider whether

: Or not he will endure pain and suffering for BOCKELCAMP V. LACKAWANNA & W. V. R. CO.

the remainder of his life by reason of this injury and to what extent, because it does not necessarily follow, even though he may endure pain, that it will be the same degree of pain at all times or continuously. It may appear for a time, and then it may disappear. It is Said that there is no way of Nevertheless the law allows the jury to take that into consideration in rendering compensation to One injured in this manner and under these circumstances. You may consider as a circumstance in the case the number of years that the plaintiff is likely to live in measuring the loss of his earning capacity. UpOn this point evidence has been introduced of what is known as the expectancy of life tables, sometimes called the ‘Carlisle tables,' and under these tables the expectancy of life of a man of the plaintiff’S age Would be 19 years and a half. You are not, of course, to assume that he will live these 19 years. He may live much less, he may live possibly longer, yet you are permitted to use this table in assisting you in arriving at a conclusion in ascertaining the amount Of damage Which he may sustain by the loss of his earning capacity permanently. “It is in evidence in this case that, while the plaintiff earned $75 or $80 a month prior to his injury and that he was employed as a machinist, Since his injury he has entered into employment with the same company, not exactly in the Same capacity, but more in the nature of a foreman or superintendent over others engaged in the same department in which he was previously engaged, and that he received the Same amount of money or something more. The scale of wages in that class of labor having increased, he received the benefit of it ill his monthly Wages. You must consider this circumstance as an element in the case in measuring the loSS Of his earning capacity. His trade or occupation before the injury is the one which should guide you primarily, which would be the occupation he probably Would have COntinued in if he had not met with this injury. He may continue in the same employment he is now in, or he may at any time lose it, and then if he was to seek employment in the Same Occupation which he had heretofore followed, if you believe his story and the Story Of the physicians as to his injury, he would not be as fit to perform the duties of a machinist as he had been before the time Of this injury. It is a very difficult question for jurors to decide, and is in the nature of a guess.” Verdict for plaintiff for $15,000, upon which judgment was entered for $6,000, all above that amount having been remitted,

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MOSCHZISKER, J. John Bockelcamp Was Seriously injured While alighting from a train on the defendant's road. The train in question consisted of two cars, and was Operated by a third-rail electric System. The case was submitted to the jury, and the plaintiff recovered a large verdict, upon Which, after a substantial cut, the court below entered the judgment from which this appeal has been taken. . The plaintiff contended that the train had Stopped at a regular station for discharging passengers, and that he had immediately attempted to alight, but that, without giving him Sufficient time, the train Started while he Was in the Very act of Stepping to the ground. The defendant claims that the plaintiff carelessly stepped from a moving train before it had come to a stop. The evidence was conflicting and the case was for the jury, but the assignments question the propriety of certain rulings of the trial judge and the manner in which the issues Were Submitted. [1] The Second Specification complains of the admission in evidence of a time book belonging to the plaintiff’s employers, purporting to show the hours that the plaintiff had worked on the day of the accident. Since it was not a book of original entries, and the absence of the time slips from which it was made up were not sufficiently accounted for or the witnesses who made the entries produced, the evidence should not have been admitted. While We Sustain this asSignment, if it Were the Only error in the case, We should not consider it of Sufficient importance to require a reversal. [2] The ninth and tenth specifications relate to the charge concerning the plaintiff's loss of earning capacity. The trial judge, inter alia, Said: “Inasmuch as it is testified that this is a permanent injury and it is not contradicted, you can consider then what Would be the loss of his earning capacity, whether it is totally destroyed or partially destroyed.” The permanent destruction of earning capacity was again referred to, and, after calling attention to the facts in the case concerning the employment of the plaintiff before and after the accident and the Wages earned, the trial judge submitted the issue to the jury, saying: “It is a very difficult question for jurors to decide, and it is in the nature of a guess.” These instructions are faulty in Several particulars. The plaintiff'S OWn testimony shows that he returned to his old employer, and that, although he is unable to perform the same kind of physical labor that he did before the accident, he now occupies a better posi

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tion and is earning a higher salary. Therefore there is nothing in the evidence to justify the Suggestion that his earning CapaCity has been permanently destroyed, much less “totally destroyed.” See Goodhart v. Penna. Railroad Co., 177 Pa. 1, at page 16, 35 Atl. 191, at page 193, 55 Am. St. Rep. 705. [3] Furthermore, the jury's attention should have been called to the fact that any allowance for future loSSes due to an impairment of earning capacity must be capitalized and brought down to its present worth. Finally, the use of the word “guess” ought to have been avoided. Jurors should never be told that any of their deliberations are in the nature of a guess, for Such a remark is practically a Suggestion to them that matters submitted for their determination can be decided Without mature judgment and deliberation. These Specifications of error are sustained. [4] The twelfth specification complains that the trial judge said to the jury: “Neither did I intend you to understand that if the plaintiff continued in the occupation that he nOW is in as foreman that you could not also, notwithstanding that fact, find him entitled to some damages for the loss of his earning capacity.” This was not error. Should the plaintiff remain in the position which he now occupies, and continue to earn at least as much as he was capable of earning prior to the accident, it Would be Strong evidence tending to show that he had not Suffered any serious impairment of his earning capacity; but the jury had a right to consider the evidence showing his physical condition and the character of work which he performed both prior to and since the accident, and, if this justified the conclusion that as a result of the accident his future earning power had been reduced, they could aWard him damages accordingly. AS Was said in McLaughlin v. Corry, 77 Pa. 109, 18 *** * * The true measure of damages * * * would be the plaintiff's actual permanent loSS of earning power, OCcasioned by the accident. What he gets from his present employers by way of wages cannot go in mitigation of damages; * * * but what he earns from any Source may, with other things, be considered as going to prove what his earning powers actually are.” The assignment is overruled. [5] The thirteenth specification complains of the following instruction: “It is the duty of a carrier of passengers like the defendant in this case not only to exercise the strictest Vigilance in receiving and conveying the pasSenger to his destination, but als0 to Set him down safely at his station or the termination of his journey, and, if they fail in this and the plaintiff is injured, Without fault upon his part, then he is entitled to recover.” The use of the phrase “strictest vigilance” is amply supported by our cases (N. J. R. R. Co. v. Kennard, 21 Pa. 203; Meier v. Penna. R. R. Co., 64 Pa. 225, 3 Am. Rep. 581; Pittsburg & Connellsville R. R. Co. v. Pillow, 76 Pa. 510, 18 Am. Rep. 424; Penna. R. R. Co. v. White, 88 Pa. 327; Phila. & Reading R. R. Co. v. Boyer, 97 Pa. 91; Fredericks v. Northern Central R. R. Co., 157 Pa. 103, 27 Atl. 689, 22 L. R. A. 306; Englehaupt V. Railroad Co., 209 Pa. 182, 58 Atl. 154; N. Y., L. E. & W. R. R. Co. v. Daugherty, 11 Wkly. Notes Cas. 437); and, while language found in certain of these cases apparently justifies these instructions as a whole, yet consideration will show that the duty of the carrier is Stated too Strongly When it is Said that, if a railroad fails to set a passenger down safely at a station, he is entitled to recover. It is the duty of a railroad to stop its trains at stations a reasonable length of time to permit passengers to alight (Penna. R. R. Co. v. Kilgore, 32 Pa. 292, 72 Am. Dec. 787; Leggett V. Railroad Co., 143 Pa. 39, 21 Atl. 996; Raughley V. West Jersey & S. R. R. Co., 202 Pa, 43, 51 Atl. 597; Hatch v. Phila. & Reading Ry. Co., 212 Pa. 29, 61 Atl. 480; Brooks V. Phila. & Reading Ry. Co., 218 Pa. 1, 66 Atl. 872; Englehaupt V. Railroad Co., Supra; Walthour V. Penna. R. R. Co., 40 Pa. Super. Ct. 252). [6] Of course, if the passenger is actually seen in the act of alighting by the men in Charge Of the train, Or if under the circumStances of the particular case he should have been seen, then there is a duty to allow him time to alight completely before starting the train, and a failure so to do would be negligence. The trial judge practically so instructed the jury in affirming points submitted by the defendant; hence we do not sustain this assignment. [7] The seventeenth specification complains that the charge as a whole is inadequate, and that the trial judge gave undue prominence to the testimony of the plaintiff's witnesses and minimized the evidence for the defenSe.

We do not sustain this assignment, but we take Occasion to Say that at the next trial, if the testimony is the Same, it Would be well to call the attention of the jury to the number of Witnesses for the defense Who testify to facts showing or tending to show that the plaintiff stepped off a moving train. In accident cases, where a strong sympathy naturally goes out to a physically injured man, the trial judge should give careful instructions on the testimony, and in so doing he should deal With the number of Witnesses On each Side, their respective interests, Opportunities for observation, and such other matters as affect the weight of the evidence. The third specification complains of a portion of the charge which states that, if through the negligence of a railroad a car is permitted to move While a passenger is trying to get Off, the company is responsible for any injury which he may sustain. These instructions, standing alone, can justly be Criticised because of the Omission of any reference to the duty of the passenger; but, as this was cured in subsequent instructions, the assignment is overruled. The first, fourteenth, fifteenth, and sixteenth specifications, which allege error in not giving binding instructions for the defendant, and in refusing judgment non obstante veredicto, are all overruled. The fourth, fifth, sixth, and eleventh specifications COVer alleged mistakes in recitals of testimony. As these may not occur at the next trial, it is unnecessary to discuss them. The assignments are dismissed. The seventh and eighth specifications complain of general instructions, in which we see no reversible error. They are overruled. For reasons before indicated, the second, ninth, and tenth assignments are sustained, and the judgment is reversed With a Venire faciàS de n0W0.

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