enforce the performance by the defendant of the omission rests upon the defendant by virtue of duty it is charged with neglecting. the rights and liabilities of the Buffalo, Pitts"We are of opinion that the plea of the plain-burgh, and Western Railroad Company. tiff to the first paragraph of the defendant's return is good, and that the record shows a service on the defendant good in law. "The objection to the jurisdiction of this Court, based on the facts stated in the third paragraph, if good when the return was made is not now available, for the reason that the Circuit Court of the United States has, as appears by the order of said Court filed May 2, 1887, granted leave to prosecute this suit to judgment against the defendant upon notice thereof given to G. Clinton Gardner, receiver of the company defendant, and the record shows such notice duly given. "We are of the opinion that the facts averred in the fourth paragraph of the return, in so far as the same purports to contain denials of averments in the petition, are not direct and positive but argumentative, and that the other facts therein stated are not good in law. "The relator makes a positive averment that the Buffalo, Pittsburgh, and Western Railroad Company entered upon a certain public road in Glade Township and appropriated the same to its own use, and that the company defendant did and still continues to occupy said public road, with its said road, that the defendant has succeeded to the rights and is subject to the liabilities of the Buffalo, Pittsburgh, and Western Railroad, and that neither the last named road nor the defendant has caused the said public road to be reconstructed as required by law. "The answer of the defendant as set forth in the fifth paragraph of the return as amended admits the taking and continuous use of a road located as set forth in the petition, but asserts that it does not know whether said road was a duly ordained and authorized public road, but to the end and for the purposes of this suit denies the public character of such road and asks that relator may be compelled to prove the same. [A denial for the purposes of this suit' is, we think, not such an unqualified denial of the fact positively asserted as will put the relator on proof. The defendant admittedly having taken and occupied the road was bound to know by what right it did so, and it is not asking too much to require an admission or unqualified denial of its public character, and in the absence of such denial we conclude that the road was a public one.] "We are of opinion that the facts set forth in the fifth section of defendant's answer or return, namely, the change in the ownership of the railroad defendant, or the delay of the Road Commissioners of Glade Township to enforce the remedy claimed in this proceeding cannot avail the defendant. The duty to supply the public road is a continuing duty, and liability for its "The relator avers that the last named company constructed its railroad upon a public road aggregating some four miles in length; that defendant continued to occupy such railroad, and that neither company has complied with the law requiring the reconstruction of the public road, etc. The defendant in its return does not even in general terms aver a compliance with the law requiring a reconstruction of the road taken. It does, however, aver that the Buffalo, Pittsburgh, and Western Railroad Company, forthwith and with the knowledge of the commissioners and proper road authorities of said Glade Township, did cause the said road to be reconstructed on the most favorable location, and in as proper a manner as the original road without objection by said commissioners and road authorities.' "Under the admitted facts the public are entitled to demand a good right and title to the easement in the substituted or reconstructed road, and the return ought to aver the existence of such facts, or the compliance by the railroad with such conditions precedent as are necessary under the law to make such title. Such facts are not stated in this return. It does not even aver a compliance with the law, unless it be inferentially from the statement that the road taken was caused to be reconstructed in the most favorable location and in as perfect a manner as the original road, with the knowledge and without objection by the road authorities. But this may all be true, and still the railroad company may have been a trespasser on the land taken for the reconstructed road, and citizens using the same may, for all that appears, be trespassers on the land of private owners. Should the relator traverse this part of the return, and a verdict and judgment in favor of the defendant thereon, it would not settle the right. It cannot be claimed that the road authorities of Glade Township by their knowledge of the action of the railroad or by their failure to object to the road as reconstructed, or even by their express agreement, could release the railroad from its duty to the travelling public. "For the reasons stated we sustain the several pleas and demurrers of the relator and enter judgment thereon in favor of the plaintiff, and award a writ of mandamus against the defendant. The enforcement thereof as respects the receiver and the assets of the company defendant in his hands to be only through the orders of the Circuit Court of the United States for the Western District of Pennsylvania." Defendant then took this writ and assigned for error (1) the entry of judgment for the relator; (2, 3, and 5), the overruling of those portions of the fifth paragraph of the return inclosed in brackets; and (4), the portion of the opinion inclosed in brackets. James D. Hancock (W. G. Trunkey with him), for plaintiff in error, cited— Stetson v. Peters, 16 Leg. Int. 147. was raised in the Court below, in part by a plea to the jurisdiction, and by demurrer. The jurisdiction of the Court, however, cannot be seriously questioned; that branch of the case has not been discussed here, and we will not consider it. The only matter to be determined is raised by the demurrer to the fifth paragraph of the amended re H. H. Goucher (J. H. Donly with him), for turn. defendant in error. It is contended, on part of the Commonwealth, that this part of the return is evasive and equivoMay 25, 1888. THE COURT. In the summer of cal; first, that the facts therein set forth do not 1881, the Buffalo, Pittsburgh, and Western Rail- aver a performance, by the company, of the duty road Company constructed a railroad between Irv-imposed by the statute; that although it does inton and Olean, along the banks of the Alle- aver that the company forthwith reconstructed, gheny River, passing through Glade Township, in etc., a road, occupied by them in Glade TownWarren County. In 1883 that company and sev- ship, it does not specifically aver that they reeral others, existing under the laws of this State constructed the road in question, and second, that and the State of New York, were consolidated into it does not set forth that the road was reconthe Buffalo, New York, and Philadelphia Railroad Company; which company, having filed a certificate with the Secretary of the Commonwealth, established an office and designated its agent within this State, in compliance with the Act of 1874, took possession or control of the railroad mentioned, and on the 9th of August, 1886, and for some time prior to that time, were using, occupying, and operating the same for the general purposes of a railroad. structed at the company's expense, upon a right of way lawfully acquired. The learned Judge of the Court below would appear to have adopted this construction of the return, and it was upon that ground judgment was entered in favor of the Commonwealth, and the peremptory writ awarded. Upon a careful reading of the return, and of the alternative writ, we are unable to accept this view of the case. The suggestion of the ComOn the 9th of August, 1886, the Common-monwealth, as set forth in the alternative writ, is, wealth, upon the relation of the Attorney-Gen- in substance, that the Buffalo, Pittsburgh, and eral, filed a suggestion in the Court of Common Western Railroad Company, in the construction Pleas of Warren County setting forth that the of their railroad, appropriated and occupied a Buffalo, Pittsburgh, and Western Railroad Com- certain public road, particularly describing it, pany, in the year 1881, had constructed their and that neither that company, nor the defendant railroad in and upon a certain public road or company, has caused the said road to be conhighway in Glade Township, leading from the structed, etc. In the original return, the defendtown of Warren, along the Allegheny River to the ants admitting the appropriation of a road advillage of Kinzua; that the said company had by jacent to the Allegheny River, aver that they did excavating, filling, and grading so obstructed the cause it to be reconstructed, not stating specifisaid public road as to prevent public travel cally, however, that the road thus appropriated thereon; that all that portion of the said public was the road described in the writ. Subsequently, road, from a point at Glade Run to the east line the defendant company filed their petition, setting of Glade Township, was actually taken and ap- forth that this failure of identification occurred propriated to the exclusive use of the railroad through inadvertence merely; that it was their company; by reason whereof it became the duty intention to admit, and they did admit, that the of the company, forthwith at their own expense, company, in the summer of 1881, had approto reconstruct that portion of the public road, as priated "the road, located as set forth in the required by law; and although the defendant plaintiff's petition," and that if their return was company continue to enjoy its corporate powers capable of being otherwise construed, they prayed and franchises in the maintenance and operation for an amendment thereof. The fifth paragraph of of said railroad, yet neither the Buffalo, Pitts- the return as amended is in part as follows: "The burgh, and Western, nor the Buffalo, New York, defendant, further answering, admits that when the and Philadelphia Railroad Company, has "caused Buffalo, Pittsburgh, and Western Railroad Comthe said public road and highway to be recon-pany built its railroad through Glade Township, in structed on the most favorable location and in as the summer of 1881, it did occupy, and the defendperfect manner as the original road," therefore, ant still continues to occupy, adjacent to the Allepraying that a writ of mandamus may issue, etc. gheny River, located as set forth in plaintiff's The alternative writ having issued, the defend-petition, and did and does occupy no other roadants made a return, the sufficiency of which is the a road, whether a duly ordained and authorized question now to be considered. That question public road, this defendant does not know, and for the purpose of this suit denies, and asks that the relator may be compelled to prove the same." It is difficult to see how the identity of the road could be more specifically ascertained; the road, which the company admits to have appropriated, is stated in the return to be the road" located as set forth in the plaintiff's petition." The defendant was not bound to admit that it was a public road. If the fact was not known to the company there is no law or rule of practice which would oblige the defendants to say that it was or was not. It must be conceded, also, that the defendant was not obliged to traverse in its return any fact, or to answer for any breach of duty not set out or assigned in the writ. The specific and substantial matter complained of on part of the Commonwealth, with respect to this road, is that the defendants did not, nor did the Buffalo, Pittsburgh, and Western Railroad" forthwith, nor at any time cause the said public road and highway to be reconstructed, on the most favorable location, and in as perfect a manner as the original road, so as aforesaid taken and appropriated, and though requested so to do it has altogether neglected and refused, and still neglects and refuses, to reconstruct the same, in the manner aforesaid, as required by law," etc. THE COMMONWEALTH EX REL. V. THE BUFFALO, A writ of inquiry of damages having been awarded, and a jury having been summoned, on motion of defendant further proceedings were stayed by order of the Court, and a rule to show cause why the order granting the writ of inquiry should not be rescinded was made absolute, whereupon the Commonwealth took a writ of error, assigning for error the decree of the Court. H. H. Goucher (J. H. Donly with him), for plaintiff in error. W. G. Trunkey and James G. Hancock, for defendant in error, submitted a printed brief. May 25, 1888. THE COURT. The judgment entered upon the demurrer in favor of the Commonwealth, having been reversed (see opinion filed to No. 38, January Term, 1888), the writ of inquiry must necessarily fall with it. The action of the Court rescinding the order for, and setting aside, this writ is assigned for error, upon the assumption that the judgment was rightly entered, but as that has been otherwise determined the questions of law and practice presented in the paper-book need not now be considered. The proceedings of the Common Pleas rescinding the order for the writ of inquiry, and setting aside the said writ, are affirmed. Opinion by CLARK, J. TRUNKEY, J., absent. To this specific charge, the defendants in their return answer as follows: "The defendant avers, however, that said company, last aforesaid named, forthwith, and with the knowledge of the com missioners and proper road authorities of said Glade Township did cause the said road to be reconstructed, on the most favorable location, and in as perfect a manner as the original road, without objection by said commissioners and road authorities." This is a full and direct traverse of all that is set forth in the suggestion, or assigned in the writ. If it be true, as alleged, that the company has in fact reconstructed the road, on ground over which they have no right of way, or if the road has been reconstructed at Jan. '88, 90. the expense of the township, or if it has not been Delaware, Lackawanna, and Western reconstructed on the most favorable location, or in as perfect a manner as the original road, or, H. C. O. April 10, 1888. Railroad Company v. Cadow. for the Court-Practice. indeed, if it has not been reconstructed at all, it Negligence-Contributory negligence—Questions would have been an easy matter to say so. The Commonwealth has made its case upon the specific matters of complaint assigned in the writ; these matters of complaint had been directly denied and traversed in the same form of words in which they were made, and if this does not raise the issue desired, it is certainly not the defendant's fault. We are of opinion that the Court erred in entering judgment for the plaintiff on the demurrer, and in awarding the writ of peremptory mandamus. The judgment is therefore reversed, the writ A lame man walking at night upon a street which was crossed by a railroad at right angles, left the pavement as he approached the crossing, and attempted to cross diagonally over the railroad tracks. The crossings being continuations of the sidewalks across the track were in good order. In the centre of the street, which was 48 feet wide from curb to curb, there was a planking over the tracks 22 feet wide. The above-mentioned person fell over the end of the planking upon the tracks and injured himself. In an action to recover damages from the railroad company: Held, that he had been guilty of such contributory negligence as precluded recovery, and that the Court | hastily upon one whose condition he does not should have given to the jury binding instructions to know, in order to reach the same point on the op that effect. Error to the Common Pleas of Columbia County. Case, by Albert E. Cadow against the Delaware, Lackawanna, and Western Railroad Company to recover damages for injuries sustained by the plaintiff in consequence of the alleged dangerous condition of the defendant's roadbed. On the trial, before DREHER, P. J., of the 43d Judicial District, the following facts appeared: On January 28, 1884, the plaintiff left his home on the corner of Seventh Street and Strawberry Alley, in the town of Bloomsburg, to go to his work at Lockards's Car Shops on the east side of East Street, where he was employed as fireman, and had worked for seven years. It was between six and seven o'clock in the morning and very dark. The two tracks of the Delaware, Lackawanna, and Western Railroad Company cross East Street nearly at right angles at Sixth Street. The sidewalks on East Street on both sides of the street and across the railroad track were con structed and maintained by the railroad company for a distance of sixty feet. In the middle of East Street, at the intersection with the railroad, planking was put down between the rails and on the outside of the rails so that vehicles could safely cross the tracks. This planking was about twenty-two feet long. At either end of the planking the rails were exposed above the ground. It was posite side of the street, he is guilty of negligence, and cannot recover damages for injuries received by falling over an obstruction which he knew lay in his path. Affirmed. (11) That under all the evidence the verdict should be for the defendant. Refused. Verdict for the plaintiff for $4500, and judgment thereon. Whereupon the defendant took this writ assigning for error, inter alia, the refusal of the Court to direct a verdict for defendant. George E. Elwell (John G. Freeze with him), for plaintiff in error. One who voluntarily and unnecessarily diverges from the travelled path cannot recover for injuries sustained while travelling outside of such path. Rice v. Montpelier, 19 Vt. 470. Dickey v. Telegraph Co., 46 Me. 483. avoid injury, and cannot recover if he does not do so. Shearman & Redfield on Negligence, § 30. William Chrisman and E. R. Ikeler (with at R. R. Co. v. Troutman, 11 WEEKLY NOTES, 453. Moore v. R. R. Co., 99 Pa. St. 304. By allowing the street to be used without objection, and by putting certain repairs upon it, the defendant extended an invitation to persons to cross it. Erie City v. Schwingle, 10 Harris, 389. The total width of East Street was 78 feet, 48 feet from curb to curb. Cadow came on to East Street, and thence up the west side of the street on the sidewalk, and started diagonally across the street to Lockards's shops. In crossing the railroad tracks in the middle of the street he got off the crossing on the east side of the planking, fell down and broke his leg above the knee. in evidence that the leg thus injured had been The fact that an accident happened in day broken in the same place in 1865, and in conse-time, or that the plaintiff was a cripple, and that quence was stiff at the knee, and was about five- he was in a hurry, is not sufficient indication of sixteenths of an inch shorter than the other leg contributory negligence so as to justify the Court at the time of the second injury; also that the in withdrawing the question from the jury. plaintiff, for ten months previous to this accident, had lived below the railroad, and had walked back and forth several times daily, crossing the railroad at some point each time within a short distance of the place where he fell. This evidence was not contradicted. The defendant submitted, inter alia, the following points : (10) If the Court should be of the opinion that a pedestrian has the right to cross the highway at any point, then we respectfully ask the Court to charge the jury that, if in so doing, in the night time, a cripple with a stiff leg departs from a path which he knows is safe, and ventures Millcreek Twp. v. Perry, 20 WEEKLY NOTES, 359. Railway Co. v. Fielding, 48 Pa. St. 326. Longnecker v. R. R. Co., 105 Pa. St. 332. May 28, 1888. THE COURT. The learned Judge of the Court below affirmed the defendant's tenth point while refusing the eleventh. The instruction asked by the tenth point was as follows: "If the Court should be of the opinion that a pedestrian has the right to cross the highway at any point, then we respectfully ask the Court to charge the jury that if in so doing in the night time, a cripple with a stiff leg departs from a path which he knows is safe and ventures hastily upon one whose condition he does not know in order to reach the same point on the opposite side of the street, he is guilty of negligence, and cannot recover damages for injuries received by falling over an obstruction which he knew lay in his path." A married woman cannot be arrested upon a capias ad satisfaciendum issued upon a judgment obtained in a civil action for a tort committed during coverture. This general principle of the common law has never been abrogated or qualified by any statute of the State of Pennsylvania. The facts embodied in this point appear in the testimony of the plaintiff. He was a cripple with a stiff leg, the result of an earlier fracture. He had a safe path, which he had often travelled, along the sidewalk to the opposite side of the railroad, and thence to his work. He left this path to go hastily upon a route leading across the road and railroad in a diagonal line and over a plank crossing, the condition of which he says on a capias ad satisfaciendum. he did not know. It was in the night time, and he was without a light. In hastily crossing the railroad, which he knew to be in his path, he got off the crossing on the east side of the planking, stumbled among the rails, fell, and was injured. There was no controversy over any one of the facts grouped together in this point, and the answer affirming it left nothing for the jury. The Act of June 3, 1887 (P. L. 332), which provides that a married woman may be sued upon her contracts or torts without joining her husband, and that any judgment, recovered against her for either, shall be collected from her separate property, was not intended to and does not subject her to arrest and imprisonment Error to the Common Pleas of Northampton County. Case, by Frederick Kuklence and Augusta his wife, in right of said wife, against Jacob Vocht and Anna Vocht his wife, for slanderous words charged to have been spoken by Anna Vocht alone. It may be that the crossing did not extend, as A rule of reference was taken out by the it should have done, over all of the roadway avail- plaintiffs, and arbitrators were chosen who made able for passage, and that the company was an award, "in favor of the plaintiffs for the sum guilty of negligence in leaving it in the condi- of fifteen dollars with costs of suit," without, tion in which it was at the time of the accident; however, naming any defendant. This award was but this point asked, and the Court gave, an in- filed in the prothonotary's office, and, no appeal struction that the facts stated showed the plain-being taken, a fi. fa. and ca. sa. were issued against tiff to be guilty of negligence, and that he could both defendants, followed by an alias fi. fa. and not recover for that reason. A party cannot an alias ca. sa. recover damages for an injury which by the ex- The defendants then presented their petition ercise of reasonable care he might have avoided. alleging the above facts, and praying for a rule (Beatty v. Gilmore, 16 Pa. 463; Pittsburgh to strike off the judgment entered on the award Southern R. R. v. Taylor, 104 Id. 306.) Neg-against Jacob Vocht and to vacate and set aside ligence is ordinarily a question for the jury, but where the facts are uncontroverted, their legal effect is for the Court. (Catawissa R. R. v. Armstrong, 52 Pa. 282; Pittsburgh and Connellsville Railroad Co. v. McClurg, 56 Id. 294; McKee v. Bidwell, 74 Id. 218; City of Erie v. "In an opinion just filed we have set aside Magill, 101 Id. 616.) All the facts affecting the the judgment, upon which the present execution question of contributory negligence were furnished is based, as to Jacob Vocht, and it follows that by the plaintiff's testimony. What was this legal the execution as to him is a nullity. The someeffect? This was the question presented by the what troublesome question remains whether a tenth point, and, as we think, properly answered. wife may be arrested in satisfaction of a judg If so, there was no question left which, if sub-ment for defamatory words spoken by her during mitted to the jury, could relieve the plaintiff coverture in which her husband is not implicated. from the consequences of his own carelessness, The Married Persons Property Act-Act 3 and the binding instruction asked for in the eleventh point should have been given. Judgment reversed. Opinion by WILLIAMS, J. TRUNKEY and STERRETT, JJ., absent. S. H. T. the alias ca. sa. against both defendants. The rule, as to Jacob Vocht, was made absolute (see Kuklence v. Vocht, infra, p. 521), and as to Anna Vocht, was discharged, the Court, SCHUYLER, P. J., filing the following opinion : June, 1887 (P. L. 332)-provides that damages recovered for a wife's torts shall be payable out of her separate property and not otherwise.' This provision is the natural sequence of the other provisions of the Act, whose manifest pur |