Wright v. Hart, 44 Pa., 454. the defendant's liability really began when the worthlessness of the stock was ascertained by putting it up at public sale in 1909, and March 29, 1906, was Grier Bros. v. Assurance Co., 183 Pa., within six years of the amendment. 334. Wilhelm's Appeal, 79 Pa., 120. Fairchild v. Furnace Co., 128 Pa., 485. Helmes v. Railroad Co., 220 Pa., 189. Wright v. Eureka, etc., Co., 206 Pa., 274. Hodges v. McGovern, 230 Pa., 368. Com. v. Baxter, 235 Pa., 179. Susquehanna Ins. Co. v. Klinger, 10 Super., 92. Especially is this not permissible after the statute of limitations has become a bar, as in this case. The original loan was made in 1901, and the amendment in 1912 setting forth a promise made in 1904. W. U. Hensel, for appellee. Witherup v. Hill, 9 S. & R., 11. But one question is raised in this appeal: Did the court below err in permitting an amended statement to be filed? In the original statement filed July 27, 1909, it was alleged that on April 1, 1905, the defendant was indebted to the plaintiff in the sum of $6,800 for money loaned. That upon that date the defendant paid to the plaintiff the sum of $3,800 on account of this indebtedness, leaving due thereon the sum of $3,000 with interest. In an to recover the balance due. If the min-amended statement which plaintiff was ing stock proved to be worthless, the permitted to file on January 24, 1911, it amount was to be made good. was averred that during the year 1905, The verdict established the plaintiff's story as to the loan and promise. The original and continuing cause of action was the promise to repay borrowed money. Both statements sought No new cause of action was intro- when the defendant was indebted to the Cuce'. Wilhelm's Appeal, 79 Pa., 120. Todd . Ins. Co., 9 Pa. Super., 381. There was ample consideration to support a recovery in the fact that defendant had borrowed plaintiff's money, never repaid it except with these worthless stocks, and these he promised to make good or pay the loan. McClymonds 7. Stewart, 2 Sup., 310. Erie Forge Co. v. Pa. Iron Works Co., 22 Super., 550. Harlan . Harlan, 20 Pa., 303. If no new cause of action was introduced, the statute would not apply. The statute was not plead. There was a settlement on March 29, 1906, which was the earliest date from which the statute could have run, but plaintiff in the sum of $6,800, the defendant induced plaintiff to accept and receive from him certain shares of mining stock of the value of $3,000, and that defendant agreed with plaintiff that if these stocks were not good, he would make them good. When the case came to trial the first time, this amendment had not been filed, and in its absence the trial court refused to allow the plaintiff to recover upon a promise which was not declared upon. Notwithstanding defendant's objection, plaintiff was permitted to amend, and, defendant pleading surprise, the case was continued. When it came up for trial again, the issue submitted to the jury was whether there was any such promise to make good the mining stocks as was alleged by the plaintiff. The court said to the jury: The sole question, therefore, which is submitted to you is, whether or not the defendant agreed to guarantee At the trial the plaintiff testified that he received the mining stocks from his brother, the defendant, in 1904, apparently upon August 8th, and that this promise to make the stock good was made at or about the same time. It is apparent, therefore, that when the amended statement was filed, more than six years had elapsed from the time the alleged promise was made by defendant to make good any loss on the mining stocks. If, therefore, under the amended statement, the cause of action was based upon the promise to make good the stocks, it would come within the bar of the statute of limitations. and make good this stock or its value." | he then purchased from the defendant. The jury found that such a promise was It was upon this new promise that plainmade, but defendant points out that it tiff based his right to recover; and was made more than six years prior to whether or not such promise was made, the filing of the amended statement, in was the issue presented to the jury. which, for the first time, the promise They found that the promise was made, was set forth. but the record shows that it must have been at a time more than six years before the amendment was presented. If so, the court erred in permitting the amendment to be filed. That an amendment which introduces a new cause of action cannot be made after the statute of limitations has become a bar is so well settled that authority for the proposition need hardly be cited. In Wright v. Eureka, etc., Co., 206 Pa., 274, we said, through the present Chief Justice (p. 276): "Statutes of amendment are liberally construed to give effect to their clearly-defined intent to prevent a defeat of justice through a mere mistake as to parties or the form of action. Amendments, however, will not be allowed to the prejudice of the other party, where the statute of limitations has run, by introducing a new cause of action or bringing in a new party, or changing the capacity in which he is sued." We are clear that the amendment allowed in this case presented a new cause of action, and it is manifest that it was filed after the statute of limitations had run against the promise upon which the right to recover was based. The question whether anything was due upon the original contract was not submitted to the jury, as the court below was of the opinion that if plaintiff was entitled to recover at all, it was upon the guarantee of the stock. This view was undoubtedly correct. The indebtedness of $6,800 was paid in 1904 by taking a note for $3,800, and accepting the stocks for the balance, or $3,000. The note was afterwards paid, and is out of the case. The stocks and defendant's relation to them are still in question. Upon defendant's promise to make them good, this suit, under the amended statement, was brought. But for the fact that the statute of limitations had run against defendant's promise, when the amendment was filed, the defendant would undoubtedly be liable. That the original indebtedness, and the promise to guarantee the stocks taken in part payment, constitute two separate and distinct causes of action, there can be no doubt. When the money The first, second and third assignments of error are sustained, and the judgment is reversed. Fell, C. J., and Brown, J., dissent. Common Pleas--Law Albright v. Ziegler. which plaintiff originally loaned to de- Trespass quare clausum fregit-Posses fendant was repaid to him, no matter whether by note or in stocks, that was an end of the original cause of action, based upon the loan of money. A new and different cause arose, upon the promise to make good any loss which should be suffered on the stock which sion. Where land is improved, an action of trespass quare clausum fregit cannot be sustained unless the plaintiff has actual possession at the time of the alleged trespass. February Term, 1912, No. 61, C. P. of Lancaster County. Rule to show cause why judgment of | shown), leased the property to Mr. non-suit should not be taken off. The plaintiff brought suit in trespass against the defendant to recover damages for injuries done to him, the plaintiff, by cepriving him of the possession of certain premises, located in the village of Maytown, East Donegal Township, in this county. Upon the trial, a judgment of non-suit was entered, which we are now asked to take off. The facts of the case, as they appeared, were about as follows: The plaintiff asserted that he was the owner of a house and lot of ground in the said village of Maytown, and that he had owned it from about 1868 until March 31, 1911. He showed no paper title, but he alleged that he had paid taxes and retained possession of it during all that time. His title, therefore, rested upon prescription. He testified that, on March 31, 1911, he moved to the city of York, and he continued to reside there at the time of the trial. About the time he left he authorized his son, Benjamin, to execute a written lease to his nephew, Andrew Albright, and when he moved to York he claimed he left the property in possession of this nephew. Upon the premises were some of his own household goods as well as some of Andrew Albright's, but how much was not shown. The lease, though in writing, was not offered in evidence. On March 31, 1911, after the plaintiff had gone, Benjamin Albright locked up the house, went to J. Z. Heisey's for supper, and later in the day left for York. No person remained on the property, for Andrew Albright did not live there, and, in fact, never occupied it. Benjamin gave the key to Hiram E. Miller, who handed it to Mrs. Barbara Heisey, and her husband, J. Z. Heisey, subsequently gave it to Mrs. Clara Ferry. Now, it appears that the defendant, Jacob Ziegler, at some time (whether before or after the plaintiff left was not Ferry, the husband of Mrs. Clara Ferry, and Ferry then went upon the premises under the permission and authority of Ziegler. The lease was by parole, and of $4.00 per month from April 1, 1911. under it Ziegler collected rent at the rate Exactly when Ferry entered upon the premises was not shown in the testimony, but it must have been after March 31, 1911. It also appeared, from the testimony of the plaintiff, at least indirectly, that there had been a sheriff's sale of this house and lot. He stated that he knew the sheriff's advertisement was tacked on the property, for he himself had torn it down; that he had heard the property was sold by the sheriff as the property of Amos Ziegler. This suit was entered on February 1, 1912. In Wilkinson . Connell, 158 Pa., 126, it was held that "an action of trespass quare clausum fregit cannot be sustained unless the plaintiff has possession, actual or constructive, of the close which he alleges has been invaded. If the land entered by the trespasser is unimproved, possession will be presumed to accompany the title, and this constructive possession will support an action. If the land is improved, that fact shows that it is in the actual possession of some one. In such case the plaintiff cannot rest on his title, but must show his possession." In Hess . Sutton, 33 Sup.. 530. Henderson, J., delivering the opinion of the Court, said: "Not guilty is the only plea allowed by that Act (Act of May 25, 1887, P. L. 271) in an action of trespass, and by it the plaintiff is put on proof of his possession, actual or constructive, as well as of the injury described in the declaration. Where the land is unimproved, possession will be presumed to follow the title. If the land is improved, that fact shows it is in the actual possession of some one, and in such case the plaintiff cannot rest on his title, but must show his possession." See, also, Tustin v. Sammons, 23 Sup.. 175; Enterprise Transit Co. v. Hazelwood Oil Co., 20 Sup., 127. "The pleas of not guilty and liberum tenementum in an action of trespass do not admit either the possession or the trespass alleged in the declaration, but put the plaintiff on | one in actual possession, the right of a proof of them": Whitney v. Backus, claimant of title, out of possession, must 149 Pa., 29. In Caldwell v. Walters, 22 be asserted by an action of ejectment. Pa., 378, Black, C. J., said: “ Possession The possession set up, however, must be of the locus in quo of a trespass is the more than a mere intrusion on either test of the right to sue for it. For an the actual or the constructive possession injury to wild land, the owner may of another." As against a wrong-doer, maintain an action by showing his title making no claim to the title, a different to it; but this is on the principle that the rule might, perhaps, be applied. law gives him a constructive possession. That Albright was not in occupation When another person has the actual of the premises in dispute is admitted. occupancy, the exhibition of a paramount That his nephew, to whom he says he title is not sufficient to sustain trespass, leased them, lived elsewhere, is also adeither against the disseisor or against mitted. That the defendant never enanybody else. The right of the true tered upon the premises is equally estabowner to the use and profits of the land lished, although his tenant did enter is suspended until he regains possession upon the same. In case the entry was either by an entry or under a legal judg-unlawful, I think he is, nevertheless, ment. During the continuance of the disseisin, the freehold is in the disseisor (14 Mass., 96; 17 Mass., 299; 10 Pick., 161), and he alone has the right to receive the profits or to recover for any direct injury done to the land." In Wilkinson v. Connell, supra, it was also held that, where the title to the locus in quo is in dispute, and there is no evidence of the plaintiff's possession, it is error to leave the question of possession to the jury. In Collins 7. Beatty. 148 Pa., 65, it was held that "trespass quare clausum fregit cannot be maintained, if the defendant was in possession of the locus in quo when the alleged trespass was committed, and had been in possession for some years previous thereto "; and in King & Shoenberger . Baker, 25 Pa., 186, that, "as a general rule, trespass quare clausum fregit can be sustained only by the person who had the actual possession when, the injury was legally responsible for the acts of the mitted; but in case of disseisin, the dis- Grace A. Lynch v. Th Conestoga Traction seisee, after he has regained possession Company. -Conflicting evidence-Question for jury. by re-entry, may maintain trespass Negligence-Street railway-Moving car against the disseisor, for acts intermediate the disseisin and re-entry." Again, in Vanderslice v. Donner, 26 Sup., 319, it was said: "As to the land here in controversy, while the contentions of the parties relate to both possession and title, the verdict is conclusive only of the plaintiff's possession when the trespass was committed. Such possession was indispensable to sustain the action, and this was all that was necessary. As against It is the duty of a street railway company, engaged in the transportation of passengers, to accept passengers who offer themselves in a proper manner, and to stop its cars a sufficient and reasonable time to allow such passengers to enter them in safety. Where the evidence is conflicting on the material and controlling question as to whether or not the car which the plaintiff attempted to board was moving, the case is for the jury. December Term, 1912, No. 19. C. P. | the conductor or motorman starts or of Lancaster County. Rule for new trial. causes the car to be moved or violently jolted, and the passenger is injured in consequence of the same, the company is W. U. Hensel, for defendant and rule.liable in damages." They were also told John M. Groff and Howard J. Lowell, contra. July 11, 1914. Opinion by LANDIS, P. J. The facts of this case were, I think, fairly submitted to the jury, and, as they were disputed, the verdict settled them in favor of the plaintiff. Assuming, then, that her version of the cause of the accident was the correct one, let us briefly inquire what the testimony presented by her adduced. She testified that, on the morning of February 14, 1912, she was on East King Street, in the city of Lancaster, waiting before the Leopard Hotel for the Christiana car, which she desired to take in order to visit her sister. She said that the car stopped, and she asked the conductor if it was the Christiana car, and that he answered that, if she wanted "on this car, come on "-that it was the Christiana car; that she placed her suit-case on the platform of the car, had her left foot on it and her right foot on the step, when he looked right at her and rang the bell; that she was thrown into the middle of the street, and was badly hurt. She was corroborated by her son, Harry W. Gregg, and also by Harry E. Boas. As to the place of the accident, she was corroborated by at least three of the defendant's witnesses. How, under the testimony thus elucidated, I could have taken the case from the jury, I am unable to see. The law upon this subject is plain, and the jury were, I think, properly instructed concerning it. They were told that "it is the duty of a street railway company, engaged in the transportation of passengers, to accept passengers who offer themselves in a proper manner, and to stop its cars a sufficient time to allow such passengers to enter them in safety. If the passenger approaches a car which is at a full stop and enters it with reasonable expedition, and before sufficient time and opportunity is given that "it is negligence on the part of a passenger to get on a moving car. One who attempts to do this does it at his or her own risk, and, if an accident ensues, he or she cannot recover damages for the injury sustained. If, too, one boards a car, and then, for some reason or other, either steps or jumps from it while it is in motion, such person is guilty of contributory negligence and cannot recover damages." Were these statements of law a correct instruction to the jury? In Redington v. Harrisburg Traction Co., 210 Pa., 648, it was held that, “on a single-track street railway, it is the duty of a conductor, before giving the signal to start the car, to look on both sides of the rear platform, to see if passengers are about to enter the car; if he fails to do so, and a passenger is injured by a premature start of the car, the company will be liable"; and in Rea v. Media M. A. & C. Elec. R. Co., 221 Pa., 129, that, "in a suit by a passenger for personal injuries against a street railway company, a prima facie case is made for the jury where the plaintiff testifies that the car had stopped, and she had put her left foot on the step and was reaching with her right hand for the hand-rail, when the conductor suddenly started the car, and she was thrown to the ground." In Donnelly v. Buffalo & Lake Erie Traction Co., 40 Sup., 110, it was also decided that, "if a proposed passenger takes a stand at a point where a street car usually stops for passengers, and the car stops there, it is the duty of the conductor to give the passenger a reasonable time to get on the car safely." In Thomas 7. Altoona & Logan Valley Electric Co., 236 Pa., 365, Mr. Justice Elkin said: "The negligence charged in this case is, that the car was suddenly started before the injured party, an intending passenger, had time to safely board it, which she was attempting to do when the injuries complained of were sustaine 1. This, it is alleged, resulted |