If the averments therein contained, assuming them to be true, present a case of which equity has either concurrent or exclusive jurisdiction, the bill should not have been dismissed, especially in view of the fact that the appellees did not object, in limine, by plea or otherwise, to the jurisdiction of the court. While it is true that manifest want of jurisdiction may be taken advantage of at any stage of the cause, the court will not permit an objection to its jurisdiction to prevail, in doubtful cases, after the parties have voluntarily proceeded to a hearing on the merits, but will administer suitable relief. Story Eq. Jur., § 464. As was said in Sunbury & Erie R. R. Co. v. Cooper, 9 Cas. 278, if the court in which the suit is brought has jurisdiction of the cause of action, both at law and in equity, it may proceed to give relief, unless the bill be demurred to on the ground that the proper remedy is at law. After averring that in January, 1878, letters-patent were issued by the United States to James D. Willoughby, his intestate, for "new and useful improvements in construction of seed planters granting him, his heirs, administrators and assigns the exclusive right of making, using and vending to others to be used the said invention," for the term of fourteen years, plaintiff further averred, in substance, that said letters-patent were legally extended for the further term of seventeen years, from January 26, 1872; that shortly after said last-mentioned date, Willoughby, the patentee, gave defendants' firm, F. Gardner & Co., a parol license or permission to manufacture and sell the improvements covered by the extended letters-patent during the term thereof; in consideration of which they promised and agreed to render to the patentee, annually, an account or statement of the number of said seed planters manufactured by them each year during said extended term, and pay him therefor a royalty of $5 for each seed planter so manufactured by them; that in pursuance of said parol license or permission, defendant's firm manufactured and sold said seed planters-commonly known as grain drills—during the whole of said extended term of seven years; that no account was ever rendered by defendants to plaintiff's intestate of the number of seed planters manufactured by them under said parol license, except for the year 1873, although they did from time to time make small payments to him on account, amounting in all to $1,100; that since the death of Willoughby, the patentee, in July, 1882, plaintiff as administrator of his estate had demanded of them an account and payment of the balance due the estate, and they have refused to furnish the same; that the only knowledge plaintiff has of the transaction between Willoughby and defendants is what he has learned from the papers and correspondence of Willoughby, which have come to his hands as administrator, and praying that an account may be taken of the number of seed planters manufactured by defendants' firm, F. Gardner & Co., under said parol license until the expiration of said extended letters-patent, and of moneys owing by them to decedent's estate for royalty under the parol license, and of all moneys paid by defendants' firm to Willoughby in his life-time; that they may be decreed to pay complainant the balance that may appear to be due and owing, etc., and for such other and further relief as to the court shall seem meet and the nature of the case require. The facts thus averred and the relief prayed for necessarily involved an account of the grain drills manufactured and sold by defendants' firm in pursuance of the contract; and there appears to be no good reason why that relief cannot be better administered by a court of equity than in a court of law. The means of knowledge necessary to a correct statement of the account was almost entirely within the control of defendants, and it was only by a discovery on their part that it could be made available to plaintiff. The patentee had an exclusive property in the letters-patent, and doubtless the object of his agreement with defendants' firm was to derive revenue therefrom by the sale of individual rights in connection with the drills manufactured and sold by them. To that end they agreed to render an account to him periodically of the number so manufactured and sold. While the agreement did not in terms create the ordinary relation of principal and agent or factor, it did establish a relation of trust and confidence that is substantially the same. The patentee was dependent on defendants for a a just and correct account of the individual rights disposed of by them in pursuance of the contract. Without such account it was next to impossible for him to ascertain how many such rights had been sold, and consequently how much was due and owing by defendants. In view of the express agreement to account in connection with other facts averred in the bill, creating between the parties a relation of trust and confidence in regard to the letters-patent, we think a case is presented in which an action of account. render, on the common-law side of the court, could have been maintained. If so, equity has concurrent jurisdiction under the act of 1840, which invested courts of common pleas with "all the powers and jurisdiction of courts of chancery in settling partnership accounts, and such other accounts and claims as by the common-law usages of this Commonwealth have heretofore been settled by an action of account rendered," and provides that "it shall be in the power of the party desirous to commence such action to proceed either by bill in chancery or at common law." Purd. 591, pl. 4. It has been suggested that defendants' answer to the bill filed in the circuit court of the United States, containing statement of grain drills sold by them from 1872 to 1878, inclusive, was in effect an account stated, and hence it was unnecessary for plaintiff to resort to a bill in equity for the purposes of discovering and stating an account. The answer to this is that full discovery, such as plaintiff was entitled to, was not contained in the answer referred to; and moreover, plaintiff was not bound to accept the statement as correct. He had a right to demand production of defendants' books, and by examination of defendants themselves, elicit such facts as were peculiarly within their knowledge in relation to the number of drills manufactured in pursuance of the contract. The fact that he subsequently waived that right and agreed to accept as correct the admission contained in the answer referred to could not oust the jurisdiction of the court below. For these and other reasons that might be suggested, we think the learned judge erred in the matters complained of in the second and third specifications, and especially in dismissing the bill for want of jurisdiction. The subject of complaint in the first specification is the refusal of the court to sustain plaintiff's first exception to the master's report, viz.: The master erred in holding that "all sums due for drills, made prior to the year 1877, are barred by the statute of limitations." The effect of this ruling was to preclude recovery for one hundred and five drills sold by defendant in 1876. According to the master's finding it was the duty of defendants to account on the first of January in each year for all drills sold during the preceding year. They were not liable, therefore, to account and pay for the one hundred and six drills. in question, until January 1, 1877, which is within the six years prior to filing the bill. The legal conclusion of the learned master was not warranted by the facts as he found them, and hence the exception was well taken. It follows, therefore, that the price of these drills with interest should be added to the amount specified in the decree recommended by the master, thus making $2,380.71, with interest from February 19, 1885. Decree reversed, and it is now adjudged and decreed that F. Gardner and George S. Beetem, surviving partners of the late firm of F. Gardner & Co., appellees, pay to David E. Adams, administrator of James D. Willoughby, deceased, appellant, the sum of $2.380.71, with interest from February 19, 1885, and costs, including the costs of this appeal. Where one suffers an injury through the concurrent negligence of two or more persons, they are jointly liable and may be proceeded against for damages sustained, either jointly or severally, at the option of the injured party, unless the latter, by his own negligence, contributed to the injury, in which case the law will not afford him any remedy whatever against any or all of those whose wrong, in concurrence with his own, caused the injury. The rule is, however, not without its exceptions, as where goods are injured in the hands of a common carrier by the negligent act of a third party, to which the negligence of the carrier contributed, or where a passenger is personally injured by the joint negligence of his carrier and another party. A. took B., an acquaintance, out driving in his sleigh. Whilst turning off of one street into another, a portion of which had been re-macadamized, one runner of the sleigh passed up into the new macadamizing, which caused the sleigh to turn over. The result was B. was thrown out and seriously injured. Held, in an action for damages brought by him against the municipality maintaining the highway, that the negligence of A. could not be imputed to B. so as to bar a recovery. Where the conformation of the ground clearly indicates that the center of a public road is not the traveled route, this is sufficient notice to one driving over it; but in ordinary cases, the center of a public street passing between the open lots of a populous town, in the usual course of travel, and in the night-time, or when the route is obscured by snow, may be taken as the traveled route, and if the municipal officers cause an obstruction to be placed on that part of the highway, it is their duty to give some appropriate notice of the fact. Error to the court of common pleas of Cumberland county. was invited by Cornman, a friend, to take a drive with him into the country in a sleigh. They started about three o'clock in the afternoon and drove by way of Harrisburg and Chambersburg turnpike first to Cornman's farm, four miles from town, and from there, on their return, about three miles to the poor-house, which they reached at sundown. They took supper there and remained about an hour and a half, when they left for Carlisle. They drove up the poor-house road a quarter of a mile to North street, one of the principal thoroughfares of the borough. They turned around the north-west corner formed by the junction of this street with the poor-house road and drove for the center of the street. The borough was then engaged in piking this street, which is sixty feet wide, and had filled the north half of it with broken stones to the depth of from ten to twenty-five inches, leaving the south half in its previous condition. There were thus two distinct ways or tracks passing over North street, each thirty feet wide, the one on the north side being piked and elevated from one to two feet above the one on the south side, which was known as the summer or mud road. These two ways or tracks both began on a level at the poor house road. They were both comparatively safe in day-time with a safe horse and a careful driver. They were both unsafe at night, and particularly the one on the north side, from which the traveler at night was liable to be precipitated at any moment over the steep declivity running almost its whole length in the middle of North street. The night was dark and cloudy, the sun had been down an hour and a half, the ground was covered with snow, when Cornman, driving at a slow trot, turned his horse on his way home into this street, for the center of the street. After he had gone about fifty feet he struck the middle of the street, and the left runner of his sleigh went suddenly over the edge of the piking, which was about sixteen inches deep at that point, and the sleigh was upset, throwing Brisbane, who was on the left side, violently out, and Cornman on top of him. Brisbane's left leg was broken at the thigh, about four inches from the socket joint, making a very dangerous and painful fracture. In course of time Brisbane brought an action for damages against the borough. The verdict was for plaintiff. Hepburn, Jr., & Stuart and Martin C. Herman, for plaintiff in error. It would be a harsh rule to hold that because one has the right to pass over a highway, he is under no duty to avoid a known danger. R. W. Co. v. Taylor, 8 Out. 306; Forks Township v. King, 3 Norr. 230; City of Erie v. Magill, 5 Out. 616. In Lockhart v. Lichtenthaler, 10 Wr. 151, it was decided -- following the line of authorities beginning with Thorogood v. Bryan-that where a passenger on a carrier vehicle is injured by a collision resulting from the mutual negligence of those in charge of it, and of another party, the carrier must answer for the injury, and the same rule was followed in P. & R. R. R. Co. v. Boyer, 1 Out. 91, where it was further said, that the measure of duty of the carrier company is extraordinary care, that of the non-carrying company, merely ordinary care according to the cir cumstances. In Lake Shore & Mich. South. R. R. Co. v. Miller, 25 Mich. 274, the injury complained of was caused by a locomotive coming into collision with a wagon in which the plaintiff, a woman, was riding, which was being driven across the railroad track by the owner of the team, and it was held that his negligence affected the right of the plaintiff to recover equally with her own negligence. F. Maust, F. E. Beltzhoover and J. M. Weakley, for defendant in error. In Webster v. Hudson River R. R. Co., 28 N. Y. 260, it is held that "the negligence of defendant whereby plaintiff was injured, being established by evidence, and there being no pretense that plaintiff was guilty of any personal negligence, the negligence of a third party contributing to the injuries furnishes no excuse for the negligence of defendant, and no reason why he should not respond in damages.' See, also, Mann v. Wirand, 32 Smith, 243; Beach Cont. Neg., $36. "It is the general American rule that there is no privity in negligence between passenger and carrier, and that, therefore, when the passenger brings an action of negligence, the contributory negligence of his carrier is not to be imputed to him in any degree for the purpose of barring his remedy. The rule of Thorogood v. Bryan is wholly repudiated. Neither upon the theory of agency nor upon theory of identity, nor from supposed considerations of public policy and convenience, will the passenger be held to such a connection with the common carrier, by which he is transported, as to be responsible for negligence on his part." Mr. Beach cites among others, the following cases in support of his text: Danville v. Stewart, 2 Metc. (Ky.) 119; Bennet v. New Jersey, 36 N. J. Law, 225; Covington v. Kelley, 36 Ohio St. 86; Albion v. Hetrick, 90 Ind. 545; Cuddy v. Horn, 46 Mich. 596; Wabash v. Shacklet, 105 Ill. 364; Knapp v. Dagg, 18 How. Pr. 165; Chapman v. New Haven, 19 N. Y. 341; Webster v. Hudson, 38 id. 260; Robinson v. N. Y. C., 66 id. 11; Dwyer v. Erie, 71 id. 228; Masterson v. N. Y. C., 84 id. 227; Ricker v. Freeman, 50 N. H. 420; Eaton v. Boston, 11 Allen, 500; 12 Minn. 357; 23 Ala. 469, etc; also Shearm. & Redf. Neg., § 46; Whart. Neg., §395; Thomp. Car. 284; 1 Sm. Lead. Cas. (8th ed.) 505. It is settled law in Pennsylvania "that an excavation in a road or street made for a lawful purpose must be fenced and lighted." Ilemphrey v. Armstrong Co., 6 P. F. S. 216. This has been reaffirmed in Lower Macungie Township v. Merkhoffer, 71 Penn. St. 276; Scott Township v. Montgomery, 95 id. 444, and numerous other cases. See 6 Phila. 556. CLARK, J. The general rule of the law undoubtedly is where one suffers an injury through the concurrent negligence of two or more persons, they are jointly liable and may be proceeded against for damages sustained, either jointly or severally, at the option of the party injured, unless the latter by his own negligence has contributed to the injury, in which case the law will not afford him any remedy whatever, against any or all of the persons whose wrong in concurrence with his own caused the injury; the rule is, however, not without its exceptions. Where goods in the hands of a common carrier are injured by the negligent act of a third party, to which the negligence of the carrier con |