The assignments of error are overruled, and the judgment is affirmed.

(233 Pa. 304)

BURNS v. PENNSYLVANIA R. CO.

(Supreme Court of Pennsylvania.
1912.)

Jan. 2,

1. CARRIERS (§ 320*)-INJURIES TO PASSENGER-ACTIONS QUESTION for Jury.

In an action for injuries to a passenger from stumbling over a dress suit case placed by another passenger in the aisle of a car, evidence held to present a question for the jury as to the negligence of defendant.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1315-1325; Dec. Dig. § 320.*] 2. CARRIERS (§ 316*)-INJURIES TO PASSENGERS-ACTIONS-BURDEN OF PROOF.

to award the order of sale after five years be appropriately repeated here: "By what had expired from Bowser's death, and the act of assembly, principle, or practice can defendant took nothing by his deed from the an action against 'heirs'-living persons-be administrator. The only answer that need prosecuted by the creditors of a decedent in be given to the question thus raised by the the orphans' court 'to judgment,' or at all?” appellant is that it is not an open one. In The action required by the statute must be Bindley's Appeal, 69 Pa. 295, it was definite- commenced and duly prosecuted in the comly settled that a proceeding in the orphans' mon pleas, and the court below correctly so court, such as was instituted by Bowser's held. ward, was not "an action" contemplated and required by the act of 1834, and did not, therefore, continue the lien of his indebtedness against his real estate beyond five years from his death. In so holding, in a carefully considered opinion, Mr. Justice Sharswood said: "It only remains to consider whether the appellant, having presented his claim before the auditor appointed to report distribution of the proceeds of a sale made under a previous order of the orphans' court within the five years, and had a pro rata dividend awarded to him and confirmed by the court, his lien on the real estate of the decedent was thereby kept alive and continued. The words of the act, as we have seen, are, 'Unless an action for the recovery thereof be commenced and duly prosecuted.' These are strictly technical words and, according to the well-established canons of interpretation, should be received in their technical signification. 1 Black. Com. 59, note. It is now, however, contended, although it is a ground which does not appear to have been taken in the court below, that the claim before the auditor was an action commenced against the administrator and duly prosecuted to a de cree; that the act of assembly does not speak of actions at common law, or in a court of common-law jurisdiction; any querela, any lawful complaint in any competent court, will literally answer the words of the act; at all events, if not within the letter, it is within the spirit of the law; the appellant has given notice of his debt against the estate in a mode pointed out and authorized by law. There is great plausibility in this contention. We should remember, however, that the principal intention of the twenty-fourth section of the act of 1834 was to promote the security and repose of titles in the hands of heirs and devisees as well as purchasers from them, and we think that it would imperil these objects to give the section so broad a construction as that now contended for."

The rule laid down as in Bindley's Appeal was reaffirmed in Craig's Appeal, 5 Wkly. Notes Cas. 243, and in Bartley's Estate, 7 Pa. Dist. Rep. 36, in an exhaustive opinion by Judge Penrose, the question was again fully discussed in passing upon the provisions of the first section of the act of June 8, 1893 (P. L. 392), which differs only from the act of 1834 in limiting the duration of the lien of a decedent's debts not of record to

two years instead of five. The pertinent question there asked by Judge Penrose may

Where a passenger is injured by anything ployés in connection with the appliances of done or left undone by a carrier or its emtransportation, or in the conduct and management of the business relating thereto, the burden is on the carrier to show that the injury this burden upon the carrier, it must be shown did not result from its negligence, but, to cast that the injury resulted from something improper or unsafe in the conduct of the business, or in the appliances of transportation. Cent. Dig. §§ 1283-1294; Dec. Dig. § 316.*] [Ed. Note.-For other cases, see Carriers, 3. CARRIERS (§ 316*)-INJURIES TO PASSENGERS APPLIANCES OF TRANSPORTATION.' "Appliances of transportation," within the rule as to the burden of proof as to negligence of a carrier, means the roadbed, tracks, cars, ment furnished by the carrier and used in conengines, and all other machinery and equipnection with the conduct and management of its business, but does not include property belonging to and taken by a passenger into

car.

46

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1283-1294; Dec. Dig. § 316.*

For other definitions, see Words and Phrases, vol. 1, p. 455; vol. 8, p. 7578.]

4. CARRIERS (§ 302*)-INJURIES TO PASSENGERS-OBSTRUCTIONS IN CAR-NOTICE

CARRIER.

ΤΟ

While it is the duty of employés of a carrier to remove personal baggage of passengers from the aisles of cars, they must, in order to make it their duty to do so, have notice that the obstructions are in the aisle, or the obstructions must have remained there so long that in the exercise of due care they would have discovered them before the accident.

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1221-1223; Dec. Dig. § 302.*] 5. CARRIERS (§ 347*)—INJURIES TO PASSENGERS - CONTRIBUTORY NEGLIGENCE QUESTION FOR JURY.

In an action for injuries to a passenger from stumbling over a dress suit case placed in the aisle by another passenger, evidence held

second, that the dimly lighted car made it impossible to see distinctly. He was traveling on a fast express train which left Johnstown at 4:05 p. m., and made no stop until it reached

to present a question for the jury whether plaintiff was guilty of contributory negligence. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1346-1397; Dec. Dig. § 347.*] 6. TRIAL (§ 216*)—INSTRUCTIONS-NECESSITY East Liberty. He had been aboard the train FOR REQUESTS. It is the duty of the trial judge of his own motion and without request to correctly instruct as to the proper measure of damages. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 484; Dec. Dig. § 216.*]

Appeal from Court of Common Pleas, Cambria County.

a little more than an hour, and had traveled about 48 miles when the accident occurred. One witness testified that he saw the suit case and a satchel in the aisle soon after leaving Johnstown, and that the employés of the railroad company did not cause them to be removed. He also testified that the conductor and a porter passed through the Action by Patrick Burns against the Penn-car before the train reached Greensburg and sylvania Railroad Company. From a judg- while the baggage was standing in the aisle. ment for plaintiff, defendant appeals. Re-Appellant contends that, under these facts, versed, and venire facias de novo awarded. appellee should not be permitted to recover Argued before FELL, C. J., and BROWN, damages in this action. Several points askMESTREZAT, POTTER, ELKIN, STEW- ing for binding instructions in favor of deART, and MOSCHZISKER, JJ. fendant were submitted at the trial, and the Thomas L. refusal to affirm these points is made the subject of five assignments of error.

H. W. Storey, for appellant. Kerin, for appellee.

[1, 2] It is argued that the evidence was not sufficient to show negligence on the part of appellant, and that appellee was so clearly guilty of contributory negligence as to require the court to so hold as a matter of extreme views of the case. law. We are not prepared to accept these We agree with the learned court below that both as to the negligence of the defendant, and the contributory negligence of the plaintiff, the case was for the jury. It was not tried or submitted in a manner clearly defining the exact rights and duties of the parties under the law. Under the facts there was no presumption of negligence. The rule is that where a passenger is injured by anything done or left undone by the carrier, or its employés, in connection with the appliances of transportation, or in the conduct and management of the business relating to the same, the burden of proof is upon the carrier to show that such injury did not result from its negligence. But, to cast this burden upon the carrier, it must first be shown that the injury complained of resulted from something improper or unsafe in the conduct of the business or in the appliances of transportation. Thomas v. Railroad Company, 148 Pa. 180, 23 Atl. 989, 15 L. R. A. 416; Ginn v. Railroad Company, 220 Pa. 552, 69 Atl. 992; Sutton v. Railroad Company, 230 Pa. 523, 79 Atl. 719.

ELKIN, J. The negligence charged in the present case was that the appellant railroad company permitted baggage to be placed in the aisle of the car in which appellee was a passenger, so as to obstruct the passageway, thus making it dangerous for passengers. It was also alleged that the car was not sufficiently lighted. Appellee boarded the car at Johnstown en route for Pittsburg. He paid his fare and took a seat in the rear end of a day coach. He was therefore entitled to the privileges and protection afforded passengers generally, no more and no less. At a point west of Greensburg he testified that he had occasion to go to the water-closet, located in the front end of the car, and started to do so. When he had proceeded part way, the train entered a tunnel, thus shutting out the natural light, and leaving the car dimly lighted by a lamp in the rear. The testimony is conflicting as to whether one or two lamps were burning. The tunnel is 2,100 feet in length, and it required the train over half a minute to run through it. Appellee did not stop when the car was darkened by the entrance into the tunnel, but proceeded on his way to the water-closet. Near the front of the car a fellow passenger had placed a dress suit case in the aisle at the end of his seat, and there was some testimony indicating that some other small baggage was near it. As appellee proceeded on his [3] The appliances of transportation reway, he stumbled and fell over the baggage ferred to in these cases mean the roadbed, in the aisle, and received the injuries for tracks, cars, engines, and all other machinery which he seeks to recover damages in this and equipment furnished by the railroad action. In explanation of his mishap he tes- company and used in connection with the tified that he did not see the obstruction in conduct and management of its business. the aisle until he was in the act of falling. A dress suit case belonging to a passenger is He accounts for his failure to notice the not such an appliance. The duty of caring baggage in the aisle on two grounds: First, for such small baggage primarily rests upon that he did not know it was there, not hav- the passenger to whom it belongs. A situaing seen it before entering the tunnel; and, tion sometimes arises in which the carrier For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

(233 Pa. 286)

COMMONWEALTH ex rel. SHERWOOD,

Dist. Atty., v. BENNETT,

(Supreme Court of Pennsylvania.

1912.)

make an election, defendant should be ousted from the office of common councilman. The defendant has appealed, and, in addition to Jan. 2, the positions assumed in his answer, he now contends that the city councils are the sole

1. MUNICIPAL CORPORATIONS (§ 142*)-Coм- | tribunals designated by law to determine his MON COUNCIL-FORFEITURE OF OFFICE-ACCEPTANCE OF ANOTHER OFFICE.

Act May 23, 1889 (P. L. 282), art. 4, § 1, provides that no officer of any city shall serve as a member of the council during his term of office. Held, that the local registrar of vital statistics, appointed under Act May 1, 1905 (P. L. 330), forfeited his place as councilman, where he continued to hold the office of registrar.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 314; Dec. Dig. 8 142.*]

qualifications as a member of that body, and that the court was therefore without juris

diction.

Section 1 of article 4 of the act of May 23, 1889 (P. L. 282), for the incorporation and government of cities of the third class, provides: "No officer * of the state,

*

nor any municipal or county officer or employee of the city or of any department thereof, shall serve as a member of councils during his continuance in such of

2. QUO WARRANTO (§ 14*)-JURISDICTION-fice or employment." We construe this act OUSTER FROM OFFICE.

Where a member of a council forfeited his office by accepting another incompatible office, the court of common pleas has jurisdiction in quo warranto to declare an ouster.

[Ed. Note. For other cases, see Quo Warranto, Cent. Dig. § 16; Dec. Dig. § 14.*]

Quo warranto by the Commonwealth, on the relation of R. P. Sherwood, District Attorney, against J. H. Bennett. From a judgment of ouster, defendant appeals. Affirmed. Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ.

John L. Rouse and N. Sargent Ross, for appellant. V. K. Keesey and J. S. Black, for appellee.

to mean that a member of councils shall forfeit his councilmanic place, if he continues to hold another and incompatible office. The court below properly decided that the offices held by the defendant were incompatible, and we are not impressed with the contention that section 4 of the act of May 1, 1905

(P. L. 331), serves as a warrant to him for holding the two positions at one and the same time.

[2] In Commonwealth v. Allen et al., 70 Pa. 465, a member of councils was ousted on a writ of quo warranto, and we held that the court had jurisdiction in the premises. Mr. Justice Agnew there said: "We cannot doubt the jurisdiction of the court in this

case.

*

*

There is no true analogy between the state Legislature and the councils of a city. * Hence all those decisions which evince the unwillingness of courts to interfere with the members of the Legislature have no place. * * The right of this court to issue the writ of quo warranto to determine questions of usurpation and forcannot be ques

*

MOSCHZISKER, J. [1] The defendant, J. H. Bennett, was elected to councils in the city of York in April, 1905, and re-elected in 1907 and 1909, and he was appointed to the office of local registrar of vital statistics on November 1, 1905, under the act of May 1, 1905 (P. L. 330). The district attorney filed a suggestion for a writ of quo warranto, pray- feiture of office ing that the defendant be required to show tioned. by what authority he exercised the former office. The defendant admitted that he held both places, but contended that the latter position was that of a mere agent or employé of the state board of health, and that it did not constitute an office. Further, that as the head of the sanitary committee of councils he was the principal health officer of the city; that said committee received registrations of births and deaths under the city ordinances, and as chairman he had general supervision of the compilation and tabulation of the records. The return was demurred to, the court below decided that a local registrar of vital statistics was an officer of the state, and that the defendant was ineligible to sit in councils while holding that office. A decree was entered, requiring the defendant to elect forthwith which place he would hold, and that upon such election judgment of ouster should be entered accordingly, or, upon neglect or refusal to

*

*

* * The cases cited by the defense against the exercise of the power by quo warranto to remove one who has forfeited an office have little weight. Commonwealth ex rel. Duffield v. Loughlin, 20 Leg. Int. 100, was an application for a mandamus to restore Duffield to a seat in councils, after the common council had removed him for cause. The council had judged and determined the case, and this court refused to rejudge it. This is no authority against the power of the court to remove one who has forfeited his seat by a violation of law, which the council has neglected or refused to redress. Commonwealth v. Barger, 20 Leg. Int. 101, was a case of a motion for a quo warranto, founded on the provision of the city charter that 'no member of the state Legislature shall be eligible as a member of council.' Says the opinion: "This law is express that one who is a member of the Legislature cannot be elected to council, but does not say that a councilman, on

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes