Nye and his fellows were placed were very ex- as to this particular gang, it was sent to move a traordinary and of great peril. How then could train, and it might have moved a hundred feet or the Court say as matter of law that the railroad a mile in ten minutes. This testimony was not company owed no unusual duty for the protection contradicted by any man with experience in such of its employees?

The degree of care varies with the circumstances; the greater the danger, the greater is the care required. And the question is for the jury.

matters.

Passing from the particular evidence in this case to the general principles applicable to the subject, it is plain that track repairing or track cleaning, in the vicinity of moving trains, is in

Bristol Turnpike v. The Phila. & Trenton R. R. trinsically a dangerous occupation. The men who Co., 54 Pa. 345.

U. P. Ry. Co. v. Jarvi, 10 U. S. App. 439.
Railway Co. v. Ives, 144 U. S. 408.

went out to clear this blockaded train knew that the very object of so doing was to keep the track Pittsburgh Ry. Co. v. Kane, 44 Leg. Int. 27. open so as to allow trains to run. The uncontraSchum v. Railroad Co., 107 Pa. 8. dicted testimony is that the next track, No. 2, on Railroad Co. v. Coon, 111 Id. 430. which the accident occurred, was only kept open Railroad Co. v. Peters, 116 Id. 206. by constantly running a locomotive backwards But it is said by the appellant that under the and forwards on it at this point. The decedent's circumstances it was not practicable to give no- work was not on this track, but on No. 1, and tice to the men of the approach of the train, and there was a clear space of seven feet between that it would not have prevented the accident if them. The representatives of the railroad comit had been given. But these were questions for pany had no reason to suppose that he would the jury. The superintendent could have instruc- voluntarily put himself into unnecessary danger, ted the engineer to whistle as he approached the by getting on track No. 2, or so near it as to be point at which the men were at work, and it was struck by one of its trains. It is a fair presumpfor the jury to say whether under all the circum- tion not only that men take the risks of their emstances such instructions should have been given ployment, but that they are competent to keep and whether, if given, they would probably have themselves out of manifest and unnecessary exaverted the disaster.

posure to danger. It is argued that the storm made the situation one of unprecedented peril to

October 5, 1896. MITCHELL, J. There was Nye and his fellows, and the Court therefore considerable evidence of contributory negligence could not say as matter of law that the railroad on the part of the deceased, but it is not necessary owed no unusual duty for the protection of its to examine critically whether it was so clear as employees. But the situation was no more unto require the Court to pass upon it as a matter precedented for one than for the other; the of law, because on the whole case we fail to find danger, though greater in degree, was no difany evidence of negligence on the part of the ferent in kind from that under ordinary circumdefendant. stances; and the more manifest the danger the The points of negligence suggested are failure more the employer was entitled to rely on the of the division suuperintendent to notify the en- presumption that the employee would not unnecgineer of the west bound train of the position essarily incur it. It has not been shown that the of the blockaded train and workmen engaged in defendant omitted any reasonable precaution freeing it, the failure of the engineer to whistle, it could have taken against this unfortunate acand the speed of the train. As the last two mat- cident, and the jury should not have been allowed ters, if proved, would be the action of fellow ser- to find negligence without some evidence on vants, the only real ground of contention is which to rest it. whether there was any duty of the division superintendent, before allowing the belated train to leave Harrisburg, to notify the engineer of the situation of affairs at Lucknow. We do not see anything on which such a duty can be predicated. May, '96, 12. As a matter of evidence the superintendent testified that owing to the stormy character of the day extra men were employed to keep the tracks Appeal of the Pennsylvania Railroad Company, clear of snow, that he had at least a hundred defendant, from the judgment of the Common gangs scattered along the road, engaged in this Pleas of Dauphin County, in an action of treswork, and that it would have been impracticable pass brought by Annie E. Darr, to recover damto give the engineer of the west bound train any ages for the death of her husband, John K. Darr, notice that would have been of any use, because through the alleged negligence of the defendant.

Judgment reversed.

June 1, 1896. Darr v. Pennsylvania Railroad Co.

This case, which was tried before SIMONTON, Owners. The plaintiff had cattle in his fields, P. J., arose out of the same state of facts as the which were unfenced. A public crossing of the foregoing case, John K. Darr having been killed railway adjoined the fields to which the cattle by the same locomotive and about the same time had access. The action was to recover for the as was Noah Nye. The case was argued with the killing of three cows upon the tracks of the deforegoing. fendant upon August 15, 1887, July 12, 1889, and

L. W. Hall, (Francis Jordan with him), for ap- August 8, 1890. It was alleged that the plaintiff's pellant. cows had passed over the ditch, which had beJames A. Stranahan and M. W. Jacobs, for ap-come filled with ashes, ties, and other natural pellee. refuse.

The only evidence as to the active participation October 5, 1896. MITCHELL, J. This case grew of the defendant in the filling of the ditch was that out of the same circumstances as Nye v. Penn- of a trainman who testified that certain ties were sylvania Railroad Company, opinion filed here- thrown in this ditch in an endeavor to rescue a with, and for the reasons there assigned, the judg-cow which had been knocked into the ditch by ment is reversed. a collision with a train.

Superior Court.

Nov. '96, 1.

H. B.

October 6, 1896. Brooks v. Pennsylvania Railroad Co.

The defendant submitted the following points, both of which were refused:

1. The plaintiff's cows were trespassers upon the railroad of the defendant, and therefore the plaintiff cannot recover in this action. (Third assignment of error.)

2. Under all the evidence in the case the verdict of the jury should be for the defendant. (Fourth assignment of error.)

In the course of the general charge the Court said:

"[And you can only find for the plaintiff if you should find that the railroad company wrongTrespasser fully-according to the language of the pleadings this case-purposely, recklessly, willfully, and wantonly used the ditch for a place of deposit of these things, and that this plaintiff did not know or could not have ascertained it

in

Where a railroad is separated from a piece of land by a line ditch which serves the purpose of a line fence, both the land owner and the railroad company are under the obligation to keep it clean, if, therefore, the ditch becomes so filled by the permissive accumulation of refuse by diligence; if those facts are true the plaintiff from the railroad, whereby the land owner's cows are is entitled to recover, if his cattle crossed at the enabled to cross over to the railroad and do so cross over place where the ditch had been filled by the willand are killed on the railroad track, the railroad com- ful, wanton, reckless act by the railroad of which pany is not liable; its liability arises only when the filling of the ditch is willful, wanton or reckless on its part.

A cow which crosses over a line ditch between a railroad and a farm, which ditch has become passable through the action or permission of the railroad company, cannot be said to be a trespasser on the railroad.

he knew nothing; and only can he recover if you find the facts to be those; and if you find it to be thus you will be brought to assess the value of the cows.] (First assignment of error.)

"[If you find that the railroad willfully, not accidentally, and willfully and recklessly put this Appeal of the Pennsylvania Railroad Compa- material into the ditch, and thus made it a place ny, defendant, from the judgment of the Com- of passage, and that this plaintiff did not know mon Pleas No. 3, of Philadelphia County, in an action of trespass, brought by Harry P. Brooks. On the trial of this cause, before GORDON, J., the following facts appeared:

and could not have known it by proper diligence, if you find these facts to be true, then and then only can you find for the plaintiff."] (Second assignment of error.)

The plaintiff was tenant of certain land abutting Verdict for plaintiff $500 and judgment thereon the line of the defendant's railway, in the out-on. The defendant took this appeal, and filed lying districts of the city of Philadelphia. The line assignments of error as above indicated. of the railway and the property line of the plain- John Hampton Barnes, (George Tucker Bispham tiff was divided by a ditch varying from five to with him), for appellant.

This was

twelve feet in width and from four to six feet in The Judge submitted to the jury an issue not depth. It was intended that this ditch should be supported by any evidence in the case. half on the property of each of the adjoining error.

213

W. W. Smithers, (T. Fernley Brooks with him), fully and recklessly contributed to placing them for appellee.

there. We have read the evidence with care, and November 9, 1896. BEAVER, J. Assuming that of such fact for the finding of the jury. But a can find nothing which justifies the submission this case was to be submitted to the jury it was well tried. The charge of the Court in regard to ploy of the defendant, testifies to any active parsingle witness, Hemphill, a trainman in the emthe law of the case is, in the main, clear and sat- ticipation in placing ties in the ditch; but he says isfactory. The appellant submits four assign- that, after one of the accidents referred to, the ments of error for our consideration. The third cannot be sustained. The refusal of the employees of the railroad to rescue the animal ties were placed there for the purpose of enabling the trial Judge to affirm the defendant's first which had been injured. These were new ties point, which was as follows: "The plaintiff's cows and did not constitute any part of the accumulawere trespassers upon the railroad of the defen- tion of debris in the ditch of which the plaintiff dant, and, therefore, the plaintiff cannot recover complains, and which he characterized in his tesin this action," was correct. If the defendant contributed in any way, permissively or actively, another in the ditch." The main facts in this timony as "old ties and ashes and one thing and to the filling up of the line ditch which separated case are admitted by both parties. This was a line the railroad of the defendant from the pasture ditch, taking the place of a line fence. Both parlands of the plaintiff, by which the plaintiff's cows ties recognized their obligation to keep it clean. were enabled to cross to the defendant's railroad, The testimony shows that, when the defendant they could not properly be said to be trespassers, was notified of any obstructions in the ditch, they even although the defendant, under the circumstances, might not be liable in tort for their injury each fall cleared the ditch of any obstructions were promptly removed, and that the plaintiff or killing. There was some evidence in the case which justified the inference that the ditch referred to was filled to a greater or less extent by the material which accumulated in it from the railroad. The Court was therefore, as we view the case, justified in declining to affirm the defendant's first point.

which he might find there. Both parties seemed
to be desirous of discharging their duty in this
respect. The mere failure to discharge this duty,
or the permissive accumulation of offal from the
ful and wanton conduct as would justify a recov-
railroad in the ditch was not such reckless, will-
such conduct, it was error to submit the question
ery in this case. There being no evidence of
in that form to the jury; and, in the absence of
"Under all the evidence in the case, the verdict
such evidence, the defendant's second point:
have been affirmed.
of the jury should be for the defendant," should
This leaves nothing for a

jury to determine, and the judgment is, therefore,
reversed.

H. B.

May 13, 1896.

Orr v. Carnegie Natural Gas Co.

The first, second and fourth assignments of error are sustained. They practically embrace but a single point. The Court properly charged the jury: "If you find that the railroad willfully, not accidentally, but willfully and recklessly put this material into the ditch and thus made it a place of passage and that this plaintiff did not know and could not have known it by proper diligence -if you find these facts to be true, then and then only can you find for the plaintiff." The error consists in allowing the jury to find as a fact what nowhere appears in the evidence. The May, '96, 41. Court recognizes the necessity, under the peculiar circumstances of this case, of some active participation by the railway in filling the ditch in such a way as to enable the cattle of the plaintiff-the appellee here to cross from his pasture land to the railroad's right of way. Further than that the trial Judge properly characterized such active participation as “reckless, willful and wanton," in order to justify recovery. The testimony of both plaintiff and defendant negatives any active participation of the railroad in depositing waste material, such as old ties, ashes, etc., in the ditch. They were found there, it is true, When the facts are unquestioned the Court may decide after the several accidents to the plaintiff's cattle, whether an offer comes within the above exception; if but there is an utter absence of evidence tending they are in doubt then the fact must be submitted to the to show that the defendant, by its servants, in any ject of the offer, according as they find it to have taken jury, with instructions to consider or disregard the subway actively participated in or wantonly, will-place during an attempt at settlement or not.

Evidence-Declarations in course of proceedings looking to compromise— Expert-Act of May 29, 1885, sec. 10.

As a rule everything said or done by a party to a suit touching the matter in issue is admissible in evidence against him. An exception to this rule is that statements admissible, but to bring a case within the exception it and propositions made by way of compromise are not must reasonably appear that what it is offered to prove was said during an attempt at settlement.

Verdict for plaintiff $753.06, and judgment

The Act of May 29, 1885, sec. 10, requires a corporation taking land to attempt to agree with the owner of thereon. said land as to the damage payable for an easement therein, any declarations therefore made in the course of such attempt are inadmissible in a proceeding to recover error as above indicated. damages when the land has been entered upon without an agreement, but the fact that land has been offered to with them), for appellant. the corporation by the plaintiff at a certain price at a time when the latter had not determined to enter on the land does not show an offer by way of compromise and

The defendant took this appeal, and assigned

is admissible.

W. D. Patton and J. B. Neale, (J. H. Painter

M. F. Leason, (J. S. Whitworth with him), for appellee.

A witness who has known a piece of land for some rule of evidence that everything said or done by October 12, 1896. SMITH, J. It is a general years and who has knowledge of its condition, quality and utility and of sales of similar properties in the neighborhood, may be examined as an expert as to the value

of said land.

a party to a suit touching the matter in issue, may be presented in evidence against him. One exception to this rule is, that statements and propA witness who has no knowledge of a piece of land ositions of either party made by way of comprocannot testify hypothetically concerning its value. mise are excluded, because the policy of the law Appeal of the Carnegie Natural Gas Company, favors an amicable adjustment of controversies defendant, from the judgment of the Common and, therefore, it protects bona fide negotiations Pleas of Armstrong County, in a proceeding to for that purpose. A party may, if he chooses, ascertain damages payable by said company for buy his peace at a sacrifice. But in order to be laying a pipe line through the land of Samuel entitled to the benefit of this exception, it must Orr, plaintiff. reasonably appear that what is sought to be provOn the trial of this cause, before RAYBURN, P. en, was said during an attempt at settlement. J., it appeared that the defendant, a pipe line com- When the facts are unquestioned, the Court may pany, had laid its line through the land of the decide whether the offer comes within the excepplaintiff. Mr. Neale, for defendant, on cross-ex- tion; when disputed, the jury are to determine amination of the plaintiff, made the following this under instruction from the Court, and thereoffer: "We propose to ask the witness what he upon they must consider, or disregard, the suboffered to take from the defendant company for the right of way before his land was entered, as a measure of damages fixed by himself."

Mr. Leason, for plaintiff-"It is objected to as incompetent and irrelevant. Any proposition made in the way of settlement of damages not accepted and before any damage was done upon the premises, is not evidence."

ject of the offer, in accordance with their finding, when passing upon the main question: Hart v. Heilner, 3 Rawle, 407; Gordon v. Bowers, 16 Pa. 226; Haynes v. Hunsicker, 26 Pa. 58; De France v. De France, 34 Pa. 385. If the question put to the plaintiff, (the ruling upon which forms the first assignment of error), was directed to what occurred during negotiations for a settlement of

The Court-"We will sustain the objection and damages for the right of way over the plaintiff's give you an exception and seal a bill."

Mr. Neale "The same proposition is stated and expressly excepted from that proposition that any offer made by him for the purpose of compromise, but the question is directed to the fact of the actual price demanded by the plaintiff from the defendant for the occupation of the land."

property, its exclusion was entirely proper. The Act of May 29, 1885, sec. 10, provides that "Prior to any appropriation, the corporation shall attempt to agree with the owner as to the damage properly payable for an easement in his or her property," etc. This enjoins on a corporation the duty of attempting to agree with the owner Mr. Leason-"The proposition being in sub-upon the damages, and extends to the owner an stance the same as the former one the same ob- opportunity of adjusting his claim without litigajection is made to it."

tion. While thus engaged both parties should be The Court-"And the same ruling." free to discuss the matter, without restraint, or The plaintiff called, to testify as to the effect on fear that what then takes place may thereafter be the market value of this property of the laying used to their prejudice upon the trial. It seems of the pipe line, Samuel Dible, William Hender- clear that these negotiations come within the son and Jacob Clark, all of whom testified that spirit and purpose of the exception, excluding they had known the land in question for a long offers of compromise, and are within its protectime, and that they would testify to its value from tion. their knowledge of sales of similar land in the But while it may be that the offer to take a cerneighborhood. The defendant objected in each tain sum, as implied in the rejected question, was The objections were all overruled. (Sec- made by the plaintiff during an effort to settle ond, third and fourth assignments of error.) upon the amount of damages as required by the

case.

Act of Assembly, the fact that this was so no- ficient knowledge was thus stated by Mr. Justice where appears; nor does it arise by implication CLARK, in Railway Co. v. Vance, supra: 'The so as to warrant its deduction by a jury. Though market value . . . . is estimated upon a fair connot lucidly stated, it reasonably appears from sideration of the land, the extent and condition of the offers, that they had reference to a price its improvements, its quality and productive qualwhich was demanded by the plaintiff, apart from ities, and the uses to which it may reasonably be any purpose of compromise. Whether that were applied, taken with the general selling price of true or not, was a fact which could not be neg-lands in the neighborhood at the time. The atively found by the Court in advance, without prices which, upon consideration of the matters any testimony on the point. The question was stated, the judgment of well informed and reasonput to the plaintiff himself, and he knew, and able men will approve, may be regarded as the could have stated, whether the price he demanded market value: Railroad Co. v. Patterson, 107 Pa. was asked during an effort to adjust the damages 464. The general selling price of lands in the arising from the proposed easement. The fact neighborhood cannot be shown by evidence of that the defendant desired a right of way over particular sales of alleged similar properties; it is the plaintiff's land, was not of itself sufficient to a price fixed in the mind of the witness from a bring the offer within the exception referred to. knowledge of what lands are generally held at While the law requires that the application for a for sale, and at which they are sometimes sold, charter for a natural gas company shall state the bona fide, in the neighborhood." See to the general route of its intended line, its location at same effect: McElheny v. Bridge Co., 153 Pa. any given point need not be specified; and it no- 108; Mewes v. Pipe Line Co., 170 Pa. 364. where appears in the evidence that at the time of If there have been no sales from which the genthe alleged offer, or demand, the company had eral selling price might be ascertained, the market fixed its route over the plaintiff's land, or had value may be determined from the testimony of projected any definite line for that purpose; nor persons acquainted with the property who are was it alleged that the statement of the plaintiff able to speak from their knowledge and experitook place during an effort to settle the damages ence, as to its value: Curtin v. Railroad Co., 135 as called for by the statute, or was made by way Pa. 20. of compromise, or that the plaintiff so understood The basic requirements are personal knowledge it. There is nothing disclosed in the circumstan- of the property and of its value at the time it is ces which would justify the exclusion of the ques- taken. tion under the established rules of evidence. The mere objection to that effect by counsel, is not sufficient. For the present, therefore, we must take the offer as true, and hold that it comes within the general rule admitting the statements of parties, and that it was error to reject it: Railroad Company v. Ranck, 78 Pa. 454.

Measured by these rules, the second, third and fourth assignments of error cannot be sustained. Each of the witnesses testified that he knew the property for many years, and his judgment of its value was based on his knowledge of its condition, quality and utility, and of such sales as were made of similar properties in the neighborhood. Nor The rules of evidence governing the admission was there any error in excluding the testimony of opinions as to the value of property, have been set out in the sixth assignment. The witness frequently stated by the Supreme Court; they himself stated, and his testimony showed, that he are plain and not difficult of application. In Mich- was not acquainted with the value of land in the ael v. Crescent Pipe Line Co., 159 Pa. 104, it was neighborhood of the Orr farm. said: "An essential test of the competency of witnesses, called to give an opinion in respect of the market value of land, is that they should affirmatively appear to have actual personal knowledge of the facts affecting the subject matter of the inquiry: Railway Co. v. Vance, 115 Pa. 325. They cannot intelligently testify without such knowledge; its possession is a necessary element in the value of such testimony, but cannot be assumed; the Court cannot pass on the question of competency until it be made to appear. Hence the The witness, Riggle, had been called and expossession and sufficiency of such knowledge amined in the case, and on the next day he was should be made to appear and be passed upon by recalled, when it was proposed to re-examine him the Court before the witness should be permitted on matters which he had gone over in his testito express any opinion. What constitutes suf-mony, the day before; no reason was given in

The testimony upon which the seventh assignment is based, shows that the witness had no knowledge of the value of the Orr farm, or any part of it, which would warrant the admission of his opinion upon that subject; and it would be novel indeed, to allow a witness, without knowledge of the subject matter, to testify hypothetically, concerning it. That would be in direct violation of the principle upon which such testimony is permitted.