of W. H. Mathews, a surveyor called as a witness by the defendant, that, if certain facts in evidence were assumed, he would have located the 11 acres and 100 perches where the reservoir now is. In addition to this, it was testified by W. H. Buell, a witness on part of the plaintiffs, that his fa worth, who made the aforesaid deed to Nancy Marks, did not convey all the land owned by him, but reserved the northwest portion lying north of the five-acre tract owned by the Marks. If this be correct, it follows that the portion so retained, not having passed to Catherine Wadsworth, did not therefore pass by her deed to Nancy Marks, but the portion so retained is included in defendant's draft, Exhibit No. 1, above referred to. If its inclusion was therefore an error, it is evident that the plot must be extended eastward, and so exclude the reservoir site in order to make up the 11 acres and 100perches. larger tract of 55 acres situate in Ligonier township, Westmoreland county, the title to which at the inception of this suit was claimed by the plaintiffs herein and also by Beck and Brown, to whose predecessors in title, the Franklin Investment Company, the borough of Ligonier gave bond when it entered upon and appropriated the land for reservoir pur-ther, who sold the land to Catherine Wadsposes. Subsequent to that time, the title of the Franklin Investment Company, through sundry conveyances, vested in John E. Beck and George Brown. The title to the land taken for reservoir purposes being thus in dispute, said Beck and Brown brought an action in ejectment against the present plaintiffs and Marks' heirs at No. 481, August term, 1907, for the said larger tract of 55 acres claimed by both parties. The verdict of the jury in that case was as follows: 'Now, to wit, February 21, 1908, we, the jurors impaneled in the above-entitled case, find for the defendants the five acres as per Exhibit No. 5; also the eleven acres and one hundred perches as per Deed Book 64, page 66, a total of sixteen acres and one hundred perches; the balance of the fifty-five acres in dispute to go to the plaintiffs with six cents damages and costs.' The deed referred to in the above-recited verdict was made by Catherine Wadsworth to Nancy Marks, who was the mother of the present plaintiffs, and described the land conveyed as being 'bounded on the north by Washington Furnace run; by the Furnace lands on the east and south and on the west by lands of the said Nancy Marks and Joseph Naugle, containing eleven acres and one hundred perches.' There is no question as to the location of the five acres as shown on Exhibit No. 5 in that case. The controversy arises over the true location of the 11 acres and 100 perches described in the deed recorded in Deed Book 64, p. 66. Plaintiffs claim that the reservoir site is a portion of the land described in said deed. The defendants contend that it is not. "It appears that no location of the 11 acres and 100 perches can be made which will in all respects fit in with the description found in the deed, nor is it necessary that the description should be technically correct, provided it is sufficiently precise to enable a surveyor to locate it. On the trial of the case a plot or draft was offered in evidence, showing the location of the land as claimed by the defendant, and which, while not fitting in precisely with the description in said deed, yet conformed thereto in reasonable measure, and which so located the land as to exclude the reservoir site. No plot or draft was introduced on part of the plaintiffs to locate their claim to the 11 acres and 100 perches. They offered oral testimony, however, tending to show that it could with an equal degree of certainty be so located as to include the reservoir site. It "These matters are adverted to for the purpose of showing that the location of the land described in Deed Book 64, p. 66, was a question of fact, to be determined by the jury, and not one of law, to be determined by the court, as contended for by defendant's counsel. The land as described in said deed can with almost equal degree of certainty or uncertainty be located so as to include or exclude the reservoir site. This being true, the court on the trial of the case admitted oral testimony showing the occupancy of the reservoir site by the Wadsworths before the said deed was made and by Nancy Marks and those holding under her after the making of said deed. This testimony tended to show the understanding of the description in the deed by the parties whose negotiations and intentions were merged in it and helped to solve the latent ambiguity growing out of the situation. "The form of the verdict is as follows: 'And now, to wit, December 1, 1909, we, the jurors impaneled in the above-entitled case, find for plaintiffs. We find the reservoir is on the 11 acres, 100 perches, belonging to Marks' Heirs, as on Exhibit No. 5. We find damages in the sum of $1,931.30 and costs.' This verdict is inartfully drawn, in that it connects the 11 acres and 100 perches with Exhibit No. 5, instead of with the description contained in the deed recorded in Deed Book 64, p. 66. The purport, however, is clear, and the verdict should be given the effect of its evident meaning and this can well be done by discarding as surplusage its reference to Exhibit No. 5. It is also urged that the verdict is excessive. The evidence relative to the amount of damage sustained, it may be conceded, was not only conflicting, but lacking in that degree of definiteness which is desirable. When we consider, however, that the land was appropriated some 14 years ago, their estimates as of that time, it is not surprising that the evidence is less satisfactory than could be desired. But we may assume that after this interval of years the evidence adduced was the best possible under the circumstances. The length of time since the taking of the land accounts also, in part, no doubt, for the amount of the verdict, which represents, not only the compensation due the plaintiffs for the damage sustained at the time the land was taken, but also that arising from the detention of such damage from the time it was sustained up until the date of the trial and verdict. On a former trial of the case, more than five years prior to that now under consideration, a verdict was rendered for the plaintiffs in the sum of $775. "We are well aware that the situation arising from any verdict and judgment in this case in favor of either party is unsatisfactory, in that it does not necessarily settle the question of the location of the 11 acres and 100 perches of land between the present plaintiffs and Beck and Brown, who are not parties to the pending action, but that fact in no way militates against the right of the plaintiffs to prosecute their claim for damages as they have done in this case against the defendant borough. "When we consider that almost eight years have elapsed since the bringing of this suit, that two trials of the action have resulted in verdicts for the plaintiffs, and that the principal question involved is one of fact for the jury and not of law to be declared by the court, and not being convinced of any serious error committed in the trial of the case, we conclude that the rule for a new trial should be discharged, and it is discharged accordingly and judgment is directed to be entered on the verdict, sec. reg." Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ. Robert W. Smith and James S. Moorhead, for appellant. C. Ward Eicher, W. C. Peoples, John E. Kunkle, and Alex. Eicher, for appellees. ELKIN, J. This is an action of trespass to recover damages for lands appropriated by the appellant for reservoir purposes, and for the purpose of laying water mains to connect therewith. The tract of land claimed by appellees upon which the trespass was alleged to have been committed contains 11 acres and 100 perches. The title to this tract of land was determined to be in the present appellees in an action of ejectment in which they were named as defendants. Upon the trial of the action of ejectment the jury returned a verdict "for the defendants the five acres as per Exhibit No. 5, also the 11 acres 100 perches as per Deed Book 64, page 66, a total of 16 acres and 100 perch to the plaintiff with six cents damages and costs." A motion was filed asking for a new trial on the ground that the verdict was void because uncertain and vague. The trial court refused the motion for a new trial, ordered Exhibit No. 5 and a copy of the description in Deed Book 64, p. 66, to be filed of record in the case, and directed judgment to be entered on the verdict. From the judgment subsequently entered no appeal was taken, and as a result the record shows an adjudication of the title to the 11 acres and 100 perches of land to be in the plaintiffs in the present case, who were the defendants in the action of ejectment. The description in Deed Book 64, p. 66, to which reference was made in the verdict, and which was made part of the record in that case, is as follows, to wit: "All that certain lot of ground situated in Ligonier township, Westmoreland county, Pennsylvania, bounded on the north by Washington Furnace run, by the Furnace lands east and south, and on the west by other land of the said Nancy Marks and land of Joseph Naugle, containing eleven acres and one hundred perches." [1] The object of a description in a deed it to identify the land conveyed, and need not necessarily be technically accurate, but must be sufficiently precise for the purpose of identification and to enable a surveyor to locate it. The learned trial judge in the ejectment case held that the verdict based upon the description above recited was sufficient to meet the requirements of the rule, and, although that question is not now before us, we concur in the conclusion then reached. In the present case, we start with title to the 11 acres and 100 perches in appellees, and the only question for determination is whether the reservoir is located on this tract of land. This was the disputed question throughout the trial, and it necessarily depends upon the location of the land described in Deed Book 64, p. 66. [2] The first contention of appellant is that, under the facts, the location of the land was for the court, and not for the jury. It is argued that the verdict in the ejectment case was sufficiently definite to enable a surveyor to locate the land, and that a surveyor did locate it so as not to include the reservoir site. Two surveyors were called as witnesses for the purpose of locating the tract in question, but neither of them made an actual survey on the ground. The first surveyor called took as the basis of his computation the eastern line of the Joseph Naugle tract as shown in the exhibit, and with this as a starting point undertook to locate the tract between the Furnace run and the old Furnace road, which were the northern and southern boundaries mentioned in the description contained in the deed. This left the eastern boundary an arbitrary line drawn by the surveyor so as to include the exact red to in the verdict. The second surveyor | ejectment trial, and that the verdict in that in the main corroborated the testimony of case concludes the defendants there, who are the first in this paper location of the tract. the plaintiffs here, from again introducing The plot from which the first surveyor made testimony of this character in an action of his deductions did not show the lines of the trespass for damages to the same tract of 11-acre 100-perch tract. It showed a tract land. In other words, that all of these quescontaining 16 acres and 100 perches, which, tions were merged in the verdict upon which of course, included the tract in question, but plaintiffs must stand. This position ignores did not definitely locate it. The second sur- the different issues involved in the two veyor called conceded that the tract in dis- trials. At the trial in the action of ejectpute here might be located so as to include ment the question in controversy was title the reservoir site, and, if certain facts re- to the land, while in the case at bar the cited from the evidence were true, he would question for determination was its location. so locate it. It was in evidence that there No question of title was involved in the was an old fence from the northeastern cor- present suit. Again, the jury in the ejectner of the Nancy Marks' five-acre tract to ment trial found that the title to the premFurnace run, and that the land between this ises described in Deed Book 64, p. 66, was in fence and the reservoir had been cleared and the present plaintiffs. It therefore became tilled for many years. Taking the old fence necessary in the case at bar for the plaintiffs as a starting point, the second surveyor con- to offer that deed in evidence which was ceded that the tract in question could be lo- done. This was followed by testimony, uncated on the ground so as to include the res- contradicted, tending to show that for more ervoir. Indeed, with all the facts as to pos- than 50 years the plaintiffs and their predesession and occupancy established, he testi- cessors in title had used and occupied the fied that he would so locate the land. All land in question, including the reservoir site, of these facts tend to show that the paper and that they had used and occupied the location fixed by the surveyors depended, not buildings, garden, and sawmill actually locatupon actual marks or monuments on the ed on the land now appropriated upon which ground, nor upon possession and occupancy the trespass for which damages are claimed following the course of title, but assuming was alleged to have been committed. No obthe Naugle line as a starting point includ- jection was made to the offer and admission ed sufficient area, between certain general of this testimony, and no motion was made boundaries mentioned in the deed and an ar- to strike it out at the conclusion of the trial. bitrary eastern line drawn for the purpose, A point was submitted requesting the court to make the required number of acres. Un- to instruct the jury that no such testimony der these circumstances, we think that neith- could be considered upon the ground that er of the surveyors nor any of the witnesses Exhibit No. 1 was a correct survey of the called for the purpose did so definitely lo- land awarded to the plaintiffs by the verdict cate the tract as to warrant the trial judge in the ejectment trial, and that this survey in determining the question as a matter of showed the reservoir not to be included in law. The location of the land was a disput- the premises described in Deed Book 64, p. ed question of fact, and this was for the 66. The trial judge refused the point, and jury. As far back as Collins v. Rush, 7 we think properly so. Exhibit No. 1 was not Serg. & R. 147, it was held that, while the necessarily a correct survey of the land de construction of a written conveyance is the scribed in Deed Book 64, p. 66. The surveyexclusive province of the court, the descrip- or who prepared the exhibit admitted on the tion of land conveyed, its limits and con- stand that he had not made a survey of the tents, are frequently mixed questions of law particular tract in question. How could the and fact. The books are full of cases in court instruct the jury that it was a correct which this rule is recognized and approved. survey when the surveyor testified that he In the case at bar the location of the land had not made a survey at all? In this conwas a question of fact for the jury, and we nection we agree with the views expressed by see no error in its submission. the learned court below in the opinion filed denying the motion for a new trial. The whole case depended upon the location of the 11-acre 100-perch tract, and under the facts this was for the jury. [3] This brings us to the consideration of the second question raised by appellant, which is, Should the jury have been permitted to consider testimony relating to the use and occupancy of the land prior to the trial of the action of ejectment? It is contended that all questions relating to use and occupancy were submitted to the jury in the The able argument of counsel for appellant has failed to convince us that any reversible error was committed in the trial of the case. Judgment affirmed. CHAMPLIN v. PAWCATUCK VALLEY (Supreme Court of Rhode Island. 8. EVIDENCE (§ 123*). · OPERATION - TORTSACTIONS EVIDENCE ADMISSIBILITYRES GESTE. A statement by a motorman, in charge of March 15, the car which ran into the injured party's wagon, that he did not stop because he was sure he was going to miss him, was admissible as part of the res gestæ. 1. EVIDENCE (§ 116*)—ADMISSIBILITY-MATTER EXPLANATORY OF OTHER EVIDENCE. In an action against a street railroad company for personal injuries, evidence of a statement made by a bystander was admissible, where such statement was necessary to the understanding of the motorman's reply thereto, admitted in evidence. [Ed. Note.-For other cases, see Evidence, Cent. Dig. 88 134, 135; Dec. Dig., § 116.*] 2. EVIDENCE (§ 123*) - ADMISSIBILITY-RES GESTÆ. In an action against a street railroad company for personal injuries to the driver of a wagon, evidence that a bystander, while the injured party was being picked up, six or seven minutes after the accident, and while the car causing it was yet at a standstill, stated that the company was to blame, and that the motorman replied, "There is no one denying it, is there?" was properly admitted as part of the res gestæ. [Ed. Note.-For other cases, see Evidence, Cent. Dig. 88 351-368; Dec. Dig. § 123.*] 3. APPEAL AND ERROR (§ 237*)—OBJECTIONSPRESENTATION IN LOWER COURT-MOTION TO STRIKE. In order to preserve for review the objection to an improper answer to a proper question a motion to strike the answer must be made. Cent. Dig. §§ 351-368; Dec. Dig. § 123.*] Where a motorman's statement that he did not stop, because he was sure he was going to miss the team which was struck, was in response to another's remark that there was no need of the accident, and that if he had given the injured party two minutes time he would have gotten out of the way, such remark was admissible in evidence. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 134, 135; Dec. Dig. § 116.*] 10. DAMAGES (§ 159*) — ACTION - EVIDENCEADMISSIBILITY-VARLANCE. Where the declaration alleged that the plaintiff had been, and would be for the rest of his natural life, wholly incapacitated from working and earning the wages he would have earned, but for his injuries, evidence was admissible to show the work done and wages earned by him prior to his injury. [Ed. Note.-For, other cases, see Damages, Cent. Dig. §§ 429-453; Dec. Dig. § 159.*] 11. EVIDENCE (§ 471*)-OPERATION-TORTSACTION-ADMISSIBILITY. from a street car colliding with the plaintiff's In an action for personal injuries resulting wagon, while blocked by an automobile at a narrow place in the road, the plaintiff was properly permitted to testify whether he could have done anything to have gotten out of the [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $$ 1386-1388; Dec. Dig. 237;* Trial, Cent. Dig. §§ 228-252.] 4. WITNESSES (§ 37*)-COMPETENCY-KNOWL-way sooner than he did. EDGE. Where a witness knew of the possibility of two teams passing on one side of the street railway track at a certain point, he was competent to testify in respect thereto, although he did not know the exact measurement. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. 88 80-87; Dec. Dig. § 37.*] 5. EVIDENCE (§ 123*) - ADMISSIBILITY-RES GESTE. A statement made by the motorman, three or four minutes after his car ran into plaintiff's wagon in a narrow place in the road, that he thought he could pass without hurting him, was admissible as part of the res gestæ. [Ed. Note.-For other cases, see Evidence, Cent. Dig. 89 351-368; Dec. Dig. § 123.*] 6. DEPOSITIONS (§ 105*)—OBJECTIONS-NECESSITY-WHERE MADE. [Ed. Note.-For other cases, see Evidence, Cent. Dig. 88 2149-2185; Dec. Dig. § 471.*j 12. TRIAL (§ 252*)-INSTRUCTIONS-SUPPORT IN EVIDENCE. Where, in a personal injury case, the plaintiff's evidence upon the point merely went to the wages received for his labor, it was proper to refuse a requested instruction to not consider his loss of earnings, income, or profits in his business as a teamster and keeper of a livery stable. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 505, 596-612; Dec. Dig. § 252.*] 13. APPEAL AND Error (§ 662*)—BILL OF Ex CEPTIONS-OVERRULED EXCEPTION. will not be reviewed, where the party aggrievAn exception which has been disallowed ed fails to establish its truth, under Gen. Laws 1909, c. 298, § 21, providing that, if the justice presiding shall disallow a bill of exceptions, the Objections to questions in a deposition must truth of the exceptions may be established be be made before the magistrate taking the depo-fore the Supreme Court upon a petition stating the facts, filed within 20 days. sition. [Ed. Note. For other cases, see Depositions, Cent. Dig. §§ 302-305; Dec. Dig. § 105.*] 7. STREET RAILROADS (§ 113*)-OPERATION- - - ADMISSI In an action for personal injuries caused by a street car running into a wagon, alleged to have been blocked by an automobile at a narrow place in the road, evidence was admissible to show whether there was room at that place for an automobile and a team to pass. Error, Cent. Dig. § 2852; Dec. Dig. § 662.*} [Ed. Note.-For other cases, see Appeal and 14. STREET RAILROADS (§ 118*)-TORTS-COLACTION LISION INSTRUCTIONS - DEC road company was for injuries caused by allegWhere a declaration against a street railed negligence of the defendant in running its ed by an automobile, an instruction, which street car into the plaintiff's wagon while blockpredicated the plaintiff's right of recovery upon his want of contributory negligence, and upon [Ed. Note. For other cases, see Street Rail- the defendant's negligence having caused the roads, Cent. Dig. §§ 229-238; Dec. Dig. § 113.*] | injury, and which authorized recovery against *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes the defendant for negligence of the motorman, JOHNSON, J. This is an action of the or conductor, or both, as though it were an in-case, brought by George E. Champlin, of dividual, personally present and causing the in- Westerly, in Washington county, against the jury, was unobjectionable. [Ed. Note.-For. other cases, see Street Railroads, Cent. Dig. §§ 258-269; Dec. Dig. § 118.*] 15. STREET RAILROADS (§ 90*) - OPERATIONCARE REQUIRED-COLLISION. Where a motorman observed a wagon blocked by an automobile at a narrow place in the road, he had no right to speculate upon the possibility of getting his car through without injury to occupant of the wagon. [Ed. Note. For other cases, see Street Railroads, Cent. Dig. §§ 190-192; Dec. Dig. § 90.*] 16. STREET RAILROADS (§ 118*)-TORTS-COLLISION-ACTION-INSTRUCTION-LAST CLEAR CHANCE DOCTRINE. In an action by the occupant of a wagon struck by a street car for injuries received, a charge upon the doctrine of the last clear chance held unobjectionable. [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 258-269; Dec. Dig. § 118.*] 17. APPEAL AND ERROR (§ 1066*)-HARMLESS ERROR-INSTRUCTIONS. An instruction, in an action for personal injuries received in a collision between a street car and the wagon plaintiff was driving, which referred to plaintiff's loss from inability to follow his vocation of a stable keeper and "teamster," could not have misled the jury, where the only evidence as to plaintiff's profits, or loss thereof, was only as to his labor and the wages Pawcatuck Valley Street Railway Company, a corporation doing business in said Washington county, to recover damages for personal injuries alleged to have been sustained by said plaintiff through the negligence of the defendant company in the operation of one of its street cars. On the 13th day of July, 1910, the plaintiff was driving a pair of horses attached to a cart carrying a load of gravel weighing from 5,000 to 5,500 pounds along a highway in the town of Westerly, known as the "Westerly Road," between Ninigret avenue and Wauwinnet avenue. At a place in said highway on the part of the road between the railroad track and the sidewalk he met an automobile. The automobile turned to the right and ran upon the sidewalk, but was not able to continue until it had passed the cart, because of a pole standing in the sidewalk. About 5 or 6 feet from this pole the automobile stopped. The plaintiff drove to the right so far that his off wheels rubbed against the rail, and in this position the nigh wheels of his cart just cleared the automobile. While the plaintiff's team was in this position he heard the car approaching from behind. He looked back, and, as he testified, saw it 200 feet away. He could not turn from the track in the position he then occupied by reason of the presence of the automobile. He urged his horses, and made an effort to pass the automobile. He had partly [Ed. Note.-For other cases, see Trial, Cent. passed the automobile, and was turning away Dig. 316; Dec. Dig. § 133.*] from the railroad track, when the car came 19. NEW TRIAL (§ 102*) — GROUNDS - NEWLY up behind him, and the running board of the DISCOVERED EVIDENCE. car, after clearing the plaintiff's rear wheel, A ground for a new trial, because of new-struck his forward wheel, causing a jolt ly discovered evidence which would reduce the damages, was properly rejected, where the al- which threw the plaintiff off the cart to the leged newly discovered evidence might have been ground, and in that position the wheel of discovered before the trial by the exercise of the cart crushed and injured him. due diligence, and that it would have little effect on the damages allowed. he received. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. § 1066.*] 18. TRIAL (§ 133*)-REMARKS OF COUNSEL. Where the court instructed the jury to disregard certain improper argument of counsel, which was objected to, and no exception was taken to the court's action, such argument was not ground for a new trial. [Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 207, 210-214; Dec. Dig. § 102.*] 20. DAMAGES (§ 132*)-EXCESSIVE RECOVERY -PERSONAL INJURIES. A verdict for $15,000 was not excessive, where a strong, able-bodied man, 50 years old, received permanent injuries, which incapacitated him from labor during life and caused him continuous pain; the pelvis being crushed, both front and back. [Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. § 132.*] Exceptions from Superior Court, Washington County; George T. Brown, Judge. Action by George E. Champlin against the Pawcatuck Valley Street Railway Company. Verdict for plaintiff. Defendant brings exceptions. Case remitted, with directions to enter judgment for plaintiff. A. B. Crafts, for plaintiff. Everett A. Kingsley and Donald G. Perkins, for defendant. The case was tried in the superior court in Washington county before Mr. Justice Brown and a jury on the 1st and 2d days of December, 1910, and resulted in a verdict for the plaintiff for $15,000. The defendant moved for a new trial on the grounds that the verdict was against the evidence and the weight thereof; that it was, on the evidence in the case, contrary to the law as given to the jury by the court; that the damages awarded were excessive; that counsel for the plaintiff, in arguing said case to the jury on the subject of damages, stated to the jury, "They say country juries give small damages;" that since the trial the defendant has discovered evidence of facts of which the defendant had no knowledge prior to said trial, and at said trial could not have discovered by the exercise of reasonable diligence. The motion for a new trial was heard January 11, 1911, and on February 10, 1911, |