lot, over the way, as to give any support to the claim, which does not appear to be very strongly urged, that the defendant had acquired any prescriptive right to the use of the way as appurtenant to the westerly lot. Of course, the defendant could not claim any way of necessity to the westerly lot, because it was not cut off from the street by the land of defendant's grantor, but in fact was bounded on McGlynn street, a platted street (though not a public highway), to which the defendant had always a right of access from his land.

We find that, so far as the defendant used the right of way from McNiff street for purposes of ingress and egress to the westerly or garden lot, such use was unauthorized, and was hostile to the plaintiffs' interests as owners of the fee in the way, as increasing the burden thereon beyond the servitude lawfully created thereon; but the evidence is not sufficient to show such hostile and adverse use for a sufficient length of time to ripen into a prescriptive right under the statute.

[3] It is too well settled to require argument that the defendant could not claim that, by reason of the contiguity of his cottage lot to his garden lot, he acquired any right to use the way to his cottage lot as appurtenant to his garden lot; although there is evidence tending to show that he, at one at one time, had such a claim in mind, when he put in much testimony tending to show the inconvenience that would result to him, if he was obliged to make his way out from the garden lot by way of McGlynn street, and was not allowed to use the way out to McNiff street in connection with the garden lot and the two-tenement house thereon erected.

"In the case of a right of way to certain land by prescription, as in that of one by grant, the way cannot be used for the purpose of going to and from other land beyond." 1 Tiffany, Real Property, c. 12, par. 322.

See, also, Evans v. Dana, 7 R. I. 306, 311. [4] The only real question which is here involved is whether the placing of the gate on the easterly end of the way at McNiff street was such an obstruction to the lawful use of the way by the defendant as to warrant him in removing it. We find that the great weight of authority favors the erection and maintenance of such a gate as was here erected by the plaintiffs. The evidence shows that the gate was of light construction, not locked, but hooked or bolted, in such a way that a child of tender years could open it; the evidence in fact shows, that it was constantly, immediately after erection, opened by the children of the defendant, who were of various ages from 3 to 12 years. There is

no evidence that the gate in question could not be opened and swung easily, even by children; so that the defendant's contention simply amounts to a claim that, as matter of law, he has a right to unobstructed passage, and that in law the gate is an unauthorized obstruction.

We are of the opinion that the defend ant's contention is opposed to the great weight of authority upon this point. This court has itself held in Griffin v. Gilchrist, 29 R. I. 200, 69 Atl. 683, in effect that a reasonable gate, constructed at the intersection of a private way with the highway, is not an unlawful or substantial interference with the use of the way. See, also, Short v. Devine, 146 Mass. 119, 15 N. E. 148; Boyd v. Bloom, 152 Ind. 152, 52 N. E. 751; Connery v. Brooke, 73 Pa. 80; Whaley v. Jarrett, 69 Wis. 613, 34 N. W. 727, 2 Am. St. Rep. 764; Ames v. Shaw, 82 Me. 379, 19 Atl. 856; Houpes v. Alderson, 22 Iowa, 160; Huson v. Young, 4 Lans. (N. Y.) 63; Maxwell v. McAtee, 9 B. Mon. (Ky.) 20, 48 Am. Dec. 409. The law is well summed up in Jones on Easements, § 406, as follows:

"It is reasonable that the owner of the fee in land subject to a right of way should maintain a gate at the point where it intersects a public road. While such a gate may be a slight inconvenience to the owner of the easement, it may be quite essential for the use and enjoyment of the land. It may be true that the owner of the servient estate cannot maintain an unreasonable number of gates, or otherwise unnecessarily interfere with the use of the way by the owner of the dominant estate; but we think it entirely clear that maintaining a gate at the place where the private way intersects a public road is a reasonable and legitimate exercise of the right which resides in the owner of the fee. We have found no substantial diversity of opinion upon this question for the authorities are well agreed that it is the right of the owner of the servient estate to swing a gate across the private way."

It may be noted in this connection that the defendant himself for many years maintained a gate upon his own line at the cottage lot where the way entered upon his land. It is true that, in some of the cases above cited, it is said that the question, whether a gate is an unreasonable obstruction to a way, is a question for the jury. But in this case, there is no evidence that the gate was an unreasonable obstruction, but all the evidence is to the contrary.

We find that the trial judge committed no error in directing the jury to return a verdict for the plaintiffs, and the defendant's exception thereto is overruled.

The case is remitted to the superior court sitting in Kent county, with direction to enter judgment for the plaintiffs on the verdict.

(265 Pa. 212)

KEMMLER v. PENNSYLVANIA CO.

FRAZER, J. [1] Plaintiff's husband died from injuries received at a grade crossing in the city of Erie as he was returning from

1. NEGLIGENCE

1919.)

121(5)-PLAINTIFF

BURDEN OF PROVING CAUSE OF INJURY.

HAS

The plaintiff has the burden of showing that defendant's negligence was the sole and proximate cause of injury to the exclusion of other causes, and it is insufficient to show that the injury may have been due to one or more causes for only one of which defendant could be responsible.

2. RAILROADS 348(1)—EVIDENCE INSUFFICIENT TO SHOW NEGLIGENCE IN ACCIDENT AT

He was seen a short distance from the crossing, and was next heard calling for help, by a watchman at a factory near by, who found him lying between the tracks of defendant company and those of the New York Central Railroad, which run side by side at this point. Deceased, with both legs severed from the body, was lying about 10 feet from defendant's tracks and 25 or 30 feet beyond the crossing. No one saw the accident, and direct proof that he was struck by one of the defendant's trains is wanting. While it is conceded a train of defendant company passed this point about the time of the accident, the testimony shows that two trains passed over the crossing on the New York Central tracks at practically the same time. Although there are circumstances in connection with the accident indicating defendant's train, rather than one of those of the New York Central, struck plaintiff's husband, a serious question exists as to whether the evidence was sufficient to establish the liability of defendant within the rule which casts upon plaintiff the burden of showing that defendant's negligence was the sole and proximate cause of the injury to the exclusion of other causes; it being insufficient to merely show the injury may have been due to one or more causes, for only one of which defendant would be responsible. Bruggeman v. City of York, 254 Pa. 430, 98 Atl. 970; Erbe v. Phila. Rapid Transit Co., 256 Pa. 567, 100 Atl. 966. Assuming the evidence tending to show deceased was injured by defendant's train was sufficient, the action of the trial judge in entering judgment for defendant non obstante veredicto was proper for the reason the evidence clearly fails to convict defendant of negligence, and, on the contrary, shows contributory negligence on the part of deceased.

[2-4] The train in question consisted of empty passenger coaches with the engine attached to the rear car and running backwards with the tender in front, on which

Trespass by Elizabeth Kemmler against the Pennsylvania Company to recover damages for the death of plaintiff's husband. Verdict for plaintiff, and from a judgment for defendant n. o. v., plaintiff appeals. Affirmed.

Argued before BROWN, C. J., and FRAZER, WALLING, SIMPSON, and KEPHART,

JJ.

M. Levant Davis, of Erie, for appellant. S. Y. Rossiter, of Erie, for appellee.

ing of the type operated automatically by air pressure, was ringing continually. There is also positive testimony of witnesses on the part of plaintiff and defendant that the whistle was blown within two squares from the crossing, and that the speed at which the train was running at the time was at the rate of from 6 to 10 miles an hour.

Al

though a derrick car stood on the siding near the crossing, at a distance of 40 feet from the main track, there was a view of the track for a distance of over 300 feet which increased as one approached the rails to a distance of 2,000 feet at 15 feet from the

At the adjudication of the account, the executor and the residuary legatees objected to

the award of the trust fund as directed by the testator upon the ground that it was impossible to carry out the trust without breaking the condition annexed thereto. The court below sustained the objection, and awarded the whole of the estate to the residuary leg

atees. The school directors and the trustee appointed by the testator to receive the trust appealed.

Argued before BROWN, C. J., and MOSCHZISKER, FRAZER, WALLING, SIMPSON, and KEPHART, JJ.

M. G. Schaeffer, Charles G. Baker, Charles F. Hager, and John A. Coyle, all of Lancaster, for appellant Farmers' Trust Co.

BROWN, C. J. David S. Johns, a resident of Upper Leacock township, Lancaster county, died January 20, 1917, and in his will there is the following provision:

"I give and bequeath to my hereinafter named executor and trustee, the sum of twenty-five thousand dollars, in trust, the same to be called the 'David S. Johns Educational Fund' for the following purposes: The same to be invested as directed by the laws of Pennsylvania relating to trusts, in good security and in the name of the Farmers' Trust Company, of Lancaster, Pennsylvania, trustee of the David S. Johns Educational Fund, and the net income thereof, to be paid annually to the treasurer of the public schools of Upper Leacock township, the same to be used to improve and elevate to a higher level the standard of the practical education in Upper Leacock township, as may be directed from time to time by the board of public school directors in said Upper Leacock township; but in no event at any time shall any part thereof be used to lower the tax rate of said Upper Leacock township; and no part of said fund shall be in any manner whatever used for any assistance of any kind or thing of a religious nature. I further direct that said trustee shall keep the account separate and apart from any of its other business and the account to be kept in the name of the 'David S. Johns Educational Fund.' If at any time the principal as aforesaid shall become impaired or lessened, the same must be restored to the original sum of twenty-five thousand dollars, before any income shall be paid as aforesaid." |

At the adjudication of the account of the executor of the testator his residuary legatees-two brothers-objected to the award of $25,000, as directed by the testator, on the ground that, if the school district of Upper

net income from the $25,000 is "to be used to improve and elevate to a higher level the standard of the practical education in Upper Leacock township, as may be directed from time to time by the board of public school directors."

Section 401 of the School Code requires the school directors of every school district to "establish, equip, furnish and maintain" a sufficient number of public schools for the education of persons residing therein between the ages of 6 and 21 years; and the directors furnish and maintain" schools of a higher may, in their discretion, "establish, equip, grade and provide facilities for higher education. The testator, who was evidently a man of intelligence, was doubtless familiar with this provision, and his clearly expressed intention is that what he provided for the school district of his township was to enable its school directors to do what they were permitted, but not required, to do. The tax levied for what the school directors are required to do is not to be, and will not be, affected by the testator's bequest. The taxpayers of his township are not to be relieved in the slightest degree from the burden of maintaining the public schools which the statute requires them to maintain in their district. This is what the words of the testator mean, and they can be given no other rational interpretation. He intended that his bequest should be effective, and not that it should fail, but at the same time was unwilling that his bounty to the school district should be any measure of relief to its taxpayers from the burden of supporting public schools which are not "to improve and elevate to a higher level the standard of practical education."