the offer, nor stated by the witness, why he should the land before this pipe line was laid and after? be again examined on the same subject, and the A. Well, I would say there would be a differCourt refused to permit it. We fail to see any ence of anywhere from $900 to $1000." abuse of discretion in this matter, or that any er- We are not inclined to sustain this assignment, ror was committed in disallowing a repetition; because the question that was actually put to the the eight and ninth assignments are therefore witness and answered by him was, in itself, enoverruled. tirely proper, and according to our understanding The fifth assignment of error is based on an of what the Court said, the witness was directed objection to a statement by counsel of the plain- to "answer as indicated by the question," which, tiff, made during the examination of a witness. inferentially, would exclude from the answer anyThe witness was asked: "Q. What's the differ-thing else indicated by the counsel of the plainence in your estimate between the value of this tiff. We are not to be understood, however, as farm before the pipe line was laid and the right approving of what took place preceding the anof way taken, and since?" Instead of replying swer of the witness; and especially to that which to this question, the witness said: "A. Well, I forms the subject of the objection. It was the would like to know what your right of way in- right of the plaintiff to elicit from the witness, by cludes, whether it is just up to the present time?" questions, his knowledge of the matters which To which the counsel of the plaintiff replied, might properly form the basis for an estimate "Right of way includes sixteen feet wide, the of damages; and, under cross-examination, it right to use it for the laying of gas lines, and the might be readily ascertained whether in forming time is indefinite; it may run on forever, or it that estimate, the witness had included in it anymay be restored at the pleasure of the person thing improper for consideration in that particutaking it." Whereupon the witness further in-lar; but the judgment of the witness, as to the quired, "When they take the width of the pipe damage done, should be based upon his own obout, is it going to be refilled, or left an open servation and knowledge of the premises, and ditch?" To which the counsel replied, "We do not on irrelevant suggestions made to him by not know." The witness then said: "That would counsel while in the witness box. Although it make it quite a difference of price of it, either does not appear that what was said, influenced with an open ditch, or a well-filled ditch." And the answer of the witness, yet in view of its havthe counsel said: "They have a right to occupy ing been mentioned for that purpose, the Court it forever, if they wish to, or as long as their might very properly have cautioned the witness charter exists, or to abandon it if they please; to base his answer on his own knowledge rather there is nothing definite on that; and when they abandon it, they can leave it as they please."

than upon the suggestions by counsel of matters not proper for consideration. The damages reAt this point, counsel of the defendant said: coverable in an action of this kind, are based up"We object to the last statement made by the on, and have reference to, the conditions existcounsel, because the bond contemplates leaving ing at the time of the location and construction the ground in good condition; if there was any of the pipe line and its effect on the plaintiff's negligent condition, that would be a separate property, and not upon an apprehension of injury remedy." The Court then said: "Let the ques- from subsequent occurrences. Whether a pipe tion be read to the witness, and let him answer line company may afterward damage the property as indicated by the question there. We will give in removing the pipe, is wholly beyond the presyou an exception and sealed bill." ent inquiry. The fifth assignment is overruled. In pursuance of this direction by the Court, All the assignments of error, except the first, the following question was put to the witness, are overruled; for the reasons given, that is suswhich is substantially the first question above tained, the judgment is reversed, and a venire quoted. "Q. Mr. Culp, what would be the differ- facias de novo awarded.

ence in the market value, a fair market value of

H. B.

VOL. XXXIX.] FRIDAY, DEC. 4, 1896. [No. II. of its locomotives.

The Court below virtually decided that the testimony of Edna Redener cannot be considered Appeal of Simon D. Van Steuben, plaintiff, by the jury and that, if they do, they must give from the judgment of the Common Pleas of no effect to it whatever. This is legal heresy, Northampton County, in an action of trespass pure and simple. in which the Central Railroad of New Jersey was defendant.

Where the plaintiff's testimony is contradictory, so that on part of it he is entitled to go This was an action brought by Simon D. Van to the jury, and on part he is not, the case must

go to the jury, whose province it is to reconcile not chartered by the Commonwealth of Pennsylconflicting statements whether of the same or vania, but it was "existing" in the Commondifferent witnesses, or to draw the line between wealth in the sense in which the term is used in them and say which shall prevail.

Ely v. Railway, 158 Pa. 233.

Kohler v. Pennsylvania R. R., 135 Id. 346.
Glase v. Philadelphia, 169 Id. 492.

the Act of Assembly. The laws of this Commonwealth expressly authorized this company to come into this State and operate this railroad. At this point it is well to note that the Act of 1861, The Central Railroad of New Jersey had no differs from the Act of 1870, in that the former legal right to lease the Lehigh & Susquehanna relates to a railroad company "created by and Railroad to the Port Reading Railroad. The existing" under the laws, etc., etc., while in the Port Reading was a New Jersey corporation, its latter and in all the later Acts the phrase is "creroad did not form a continuous route with the ated by or existing under the laws, etc." There leased road and the two roads were not connect- is a palpable distinction which we think signified by intervening lines. The legislative author-cant and important in this connection. The Act ity for the lease of a railroad is found in Penn- of 1870 did not relate exclusively to those corsylvania in three statutes, viz.: Acts of April 23, porations chartered under the laws of this Com1861, sec. 1, P. L. 410; March 17, 1869, sec. 1, monwealth but was intended to cover either those P. L. 11; February 17, 1870, sec. 1, P. L. 31; they chartered in the State or those existing in the all confer the right upon Pennsylvania cor-State.

porations only, and fourth, the Act of 1861 and The Act of March 24, 1865, P. L. 49, provides 1870, contain provisos that the roads of the leas- that a railroad company organized under the ing and leased roads shall be connected either laws of this Commonwealth and operating a raildirectly or by means of intervening railroads. road either in whole within or partly within and The lease here set up is not, therefore, author- partly without this State may consolidate with ized by statute. a railroad company or companies or corporations A railroad company cannot lease its road with-organized and operated under the laws of this out the consent of the Legislature creating it. or any other State whenever they shall or may form a continuous line.

Abbott v. Railroad Co., 80 N. Y. 27.
Railroad Co. v. Dunbar, 20 Ill. 624.
Troy & Boston R. R. v. B. H. T. & W. R. R. Co.,
86 N. Y. 107.

Shrewsbury & B. Ry. v. Railway Co., 6 H. of L. 113. Where a lease is made without legislative authority the lessee operates the road as servant of the lessor, who by such lease is not relieved from any liability.

T. & B. R. R. v. B. H. T. & W. R. R. Co., supra. Edward J. Fox, (James W. For with him), for appellee.

There was no sufficient evidence of negligence to be submitted to the jury.

Kohler v. Railroad Co., 135 Pa. 346.
Ely v. Railway Co., 158 Id. 233.
Ford v. Anderson, 139 Id. 261.
Railroad v. Yerger, 73 Id. 121.
Jennings v. Railroad Co., 93 Id. 337.
Post v. Railroad, 108 Id. 585.
Railroad v. Doak, 52 Id. 379.

Erie Ry. Co. v. Decker, 78 Id. 293.
Longenecker v. Railroad, 105 Id. 332.

The Act of April 14, 1868, P. L. 100, provides: That whenever any railroad in this Commonwealth which has or may hereafter be used or leased by a railroad company whose railroad may connect therewith under any contract, lease or agreement, shall become subject to the lien of a mortgage, the leasing company may guarantee the payment of the bonds thereunder. Here there is an implication that any railroad company whether chartered here or elsewhere may make this guarantee because of the lease and there is no proviso that the company must be chartered under the laws of this State.

In the present case the Central Company was lawfully in possession of this division of its railroad. It executes a contract with another corporation of New Jersey in New Jersey by which it let its whole system, including this branch to the Port Reading Company. Admittedly, that contract in New Jersey is a perfectly valid one. The lex loci contractus sustains it. The Lehigh The lease to the Port Reading Company was Coal & Navigation Company, its lessor, acquivalid. By the terms of the lease of the Lehigh esces in it so far as we know and there is no Coal & Navigation Company to the Central provision in its lease to prevent it. The Lehigh Company in 1871, the Central Company took pos- Coal & Navigation Company under the laws session of that branch of the road known as the of Pennsylvania could have made this lease direct Lehigh & Susquehanna division. They con- to the Port Reading Company. The implication tinued to operate that line up to February, 1892, or all the Acts is that such a contract is valid. except for a short period when the road was

leased to the Reading in 1887. The company was

November 11, 1896. MCCOLLUM, J. Three

questions are raised by the specifications of error: If the defendant's evidence is insufficient for that (1) Was the action, in view of the leases given purpose, it will not be necessary to consider the in evidence, maintainable against the defendant? testimony in rebuttal. The first question which (2) Was there sufficient evidence of negligence presents itself for consideration, therefore, is to submit to the jury? (3) Was the evidence as whether the lease of the defendant company to to the condition of the unidentified engines the Port Reading Railroad Company was valid. properly excluded? These questions will be conThe general rule of law governing the execusidered in the order in which they are stated. tion of railroad leases is thus stated by Mr. JusThe action was brought to recover damages for tice SHARSWOOD in the Pittsburgh & Connellsthe destruction of plaintiff's buildings by fire ville Railroad Company v. The Bedford & caused by the alleged negligence of the defendant | Bridgeport Railroad Company, 81* Pa. 104: “One as the lessee of the Lehigh & Susquehanna railroad company cannot lease to another its franRailroad. To fix the liability upon the defendant chise of operating a road, built or authorized to company, the plaintiff gave in evidence the char- be built, unless it can show a grant of power from ter of the Lehigh Coal & Navigation Company, the sovereign in express terms or by necessary under which the Lehigh & Susquehanna Rail- implication. In England, Courts of equity have road was constructed, and the charter of the de- frequently enjoined railroad companies from carfendant company, a corporation of the State of rying leasing contracts into effect which wanted New Jersey, and a lease of the former road by the express authority of Parliament: 1 Redfield, the latter company for a period of 999 years, 592. The general canon of construction applicadated March 31, 1871. The defendant gave in ble to legislative grants of this class, derogaevidence, a lease dated February 12, 1892, by ting as they do from common right and public the defendant company to the Port Reading Rail- policy, requires that the intention should be very road Company, a corporation of the State of manifest, if not to be unequivocally expressed, at New Jersey, of their railroads and leased roads, all events not to depend upon ambiguous phrases including the Lehigh & Susquehanna Railroad, rendering the implication doubtful.” Pittsburgh with the rolling stock, for the balance of the Railroad Co. v. Allegheny County, 63 Pa. 126, term of 999 years. The Port Reading Railroad and Stewart's Appeal, 56 Pa. 413, are authorities was projected to extend "from a point on the for the same principle. Bound Brook Railroad to a point on the Arthur The defendant points to the statute of New Kill, on the Staten Island Sound," and was not Jersey for its authority for the execution of the shown to form a continuous route with the Le- lease by which it seeks to escape liability. But high & Susquehanna Railroad, and was unfin- the defendant company and the Port Reading ished at the time of the execution of the lease. Company are foreign corporations, and this leads The plaintiff in rebuttal gave in evidence a lease, us to inquire, what is their standing in our Courts? dated February 11, 1892, of the Lehigh Valley "A corporation being the mere creature of local Railroad Company, of their roads in Pennsyl-law can have no legal existence beyond the limits vania, with the rolling stock, to the Philadelphia of the sovereignty where created. The recogni& Reading Railroad Company, for a term of 999 tion of its existence even by other States, and the years, together with a tripartite agreement dated enforcement of its contracts made therein, depend February 12, 1892, between the defendant com- purely upon the comity of these States, a comity pany, the Philadelphia & Reading Railroad Com- which is never extended where the existence of pany and the Port Reading Railroad Company, the corporation or the exercise of its powers are and further evidence to show that the Philadel- prejudicial to their interest or repugnant to their phia & Reading Railroad Company, and not the policy:" Paul v. Virginia, 8 Wallace, 181. The Port Reading Railroad Company, was the real public policy of a State is to be deduced from lessee from the defendant company, in contraven- the general course of legislation and the settled tion of the laws of Pennsylvania inhibiting the adjudications of its highest Courts: American merger of parallel and competing lines, and the and Foreign Christian Union v. Yount, 101 U. laws of New Jersey restricting the execution of S. 356. It has been ruled that an Act, though leases made by foreign corporations. The Court took the case from the jury, one of the grounds specified being that under the evidence the action was not brought against the proper party.

held to be unconstitutional, may express legis'ative policy as to foreign corporations: Empire Mills v. Alston Grocery, (Texas), 12 Lawyers' Reports Annotated, 366.

The plaintiff's evidence given in chief was suf- The next question we are called upon to conficient to establish a liability on the part of the sider is the public policy of our State as to the defendant for negligence until overcome by coun-'easing of railroads. All of the statutes to which tervailing evidence on the part of the defendant. our attention has been directed, conferring leas

ing powers upon railroads, are limited to railroad gument of the appellee that they were so concompanies created by or existing under the laws nected. As the defendant company relied on its of this Commonwealth, giving them leasing lease to the Port Reading Company for exemprights with foreign or domestic railroads, provi- tion from liability for loss or injury caused by ded they shall be connected with each other di- the negligent operation of the Lehigh & Susquerectly or by intervening railroads. It has been de- hanna Railroad, it was bound to show a warrant cided that the terms of a statute providing for for the lease in the statutes of this Commonthe leasing of continuous lines must be held wealth. This, as we have seen, it failed to do. It to refer to corporations of the State unless there is well settled that "where the lease is made withis an expressed intent that they are to apply to out clear and specific authority it is utterly void, foreign corporations: Freeman v. Minneapolis because public policy very strongly opposes any & St. Louis Railway Company, (Minn.), 7 Am. attempt on the part of the company to relieve & Eng. Railway Cases, 411. In Empire Mills v. itself of its high obligations by transferring them Alston Grocery, supra, it was held that the repeal to another company, and where this is the case of the statute granting the privilege of organizing the liability of the lessor is entirely unaffected by mercantile corporations was a direct prohibition the void lease. It remains the same, the lessee against the operation of such corporations within being regarded merely as the agent": Wood on the State, and therefore the law of comity did not Railroads, 1055-6 and cases cited. require that a mercantile corporation organized We have not considered the appellant's conunder the laws of another State, should be allow- tention that the lease to the Port Reading Comed to do business therein. In Methodist Church pany was in fact, though not in form, a lease to v. Remington, I Watts, 219, it was held that the the Philadelphia & Reading Railroad Company, equitable powers of the Courts will not be exer- nor whether the evidence was sufficient to warcised to enforce a trust which is against the policy of the State as expressed by the Legislature in parallel cases.

rant a finding that the Lehigh Valley Railroad and the Lehigh & Susquehanna Railroad are parallel and competing lines. While these are questions of fact to be determined upon evidence applicable to them in a proceeding to cancel the lease, the question whether they can be raised in an action for a loss or injury caused by negligence in the operation of the road does not appear to have been presented to or considered by the Court below, nor was it brought to our notice in the argument on appeal. We express no opinion on this question now, but we suggest that it ought to be raised, argued and considered in the Court below and here before there is a final decision of it.

The warrant for the Port Reading lease must be found, if at all, in the legislation of this State. The defendant company relies upon the lease as a defence to the suit. It ought therefore to show that it is such a lease as is authorized by our laws. The Act of April 23, 1861, P. L. 410, and the Act of February 17, 1870, P. L. 31, expressly confer upon railroad companies leasing powers, but in each the grant of these powers is upon a condition named therein. To these Acts the defendant must look for its authority to make the lease. It cannot be found in the Act of March 24, 1865, P. L. 49, or in the Act of April 14, 1868, The next question to be considered relates to P. L. 100. Neither of them expressly or by nec- the sufficiency of the evidence offered to prove essary implication confers leasing rights. The the negligence of the defendant. The buildings Act of 1861 confers the right to lease "provided destroyed were a barn, wagon shed, grain shed that the roads of the companies so contracting and pig stye, located in close proximity to the or leasing shall be directly or by means of inter-railroad tracks. The distance from the west bound secting railroads connected with each other," and track to the place where the fire originated in a the Act of 1870 confers it, "provided however pile of straw at the rear of the barn was about that such road or roads so embraced in any lease 122 feet. The fire occurred on the 19th of July, ... shall be connected, either directly or by 1892, about six o'clock in the evening, at the intervening line, with the railroad or railroads close of the day's work of threshing. It was first of said company or companies of this Common-seen by the hired girl, Edna Redener. She teswealth so entering into such lease . . . and thus tified that immediately before she saw the fire, forming a continuous route or routes for the she had been sent from the house to the wood transportation of persons and property." There pile for some wood, and that while she was standis nothing in the Port Reading lease or in the ing on the porch of the house, she saw the west evidence in the case which shows that the Port bound coal train with engine No. 315 pass the Reading Railroad was connected directly or by premises going west. On reaching the wood intervening line with the Lehigh & Susquehanna pile she saw the fire, and she at once notified Railroad, and it is not claimed in the printed ar- Eugene Kindt, the tenant of the farm, who was