half of the consideration, instead of the whole. It is argued with much force and ability that the eviction of Warner was not by the action of ejectment, in which no judgment was ever rendered, but by entry, and that the possession of Wentworth, the owner of the undivided one-half of the tax title, will be presumed to be as well for the other owners, as for himself. The covenant of warranty is a technical contract, the meaning of which is well established, and no real or fancied equity in any particular case can justify a departure from the well-settled rules by which the rights and liabilities of the parties to such a contract are to be measured. The covenant is not broken by a failure of title, but only by an eviction of the covenantee from the possession of the whole or. some part of the premises by title paramount. Eviction implies that it shall be involuntary. It need not be by legal process, nor by actual force; but when the tenant voluntarily yields to an entry or mere demand, without giving the warrantor an opportunity to defend, he must show that, had he not done so, his eviction by legal process was inevitable. Clarke v. McAnulty, 3 Serg. & R. 364; Knepper v. Kurtz. 58 Pa. St. 484. The evidence shows no demand for the possession from Warner, except that made by Wentworth by the ejectment. The other owners of the tax title have never asserted, and may never assert it. Wentworth, as tenant in common, could recover no more than his own purpart and would then be in possession jointly with Warner, and as tenant in common with him. Freem. Coten. 343; Dewey v. Brown, 2 l'ick. 387; Gray v. Givens, 26 Mo. 303; Dawson v. Mills, 32 Pa. St. 302. Warner might have had partition, and, for all that appears in this case, be still in the undisturbed possession of one-half of the warrantcd premises, had he seen fit to remain. does not even appear that this right would be questioned by Wentworth should Warner now assert it. Under these circumstances, I think the rules governing the rights of tenants in common between themselves are not applicable. The covenant upon which the suit is brought has been broken only as to the half of the premises, and the exceptions on the part of the plaintiff must be overruled, and judgment entered in accordance with the former order of the court."

It

D. I. Ball and C. C. Thompson, for appellant. W. W. Wilbur and Wm. Schnur, for appellee.

DEAN, J. After a careful examination of the assignments of error on this appeal of James McGrew, we are of opinion the learned judge of the court below, in his findings of fact and conclusions of law, committed no error. On the testimony, the court found there was no eviction of Warner by title paramount from more than one-half the land; that, for all that appears, he could have re

mained in undisturbed possession of the other half. In view of this finding of the fact, to have held that the entry of Wentworth was constructively an entry for himself and tenants in common with him to more than the undivided half would have been error. The opinions of the learned judge of the court below on the hearing and exceptions to his judgment are full and to the point.. They properly rule all the questions raised by this appeal. The assignments of error are overruled, the judgment is affirmed, and the appeal is dismissed, at costs of appellant.

MCGREW v. HARMON. (Supreme Court of Pennsylvania. Oct. 1, 1894.)

RECITALS IN DEEDS-BREACH OF COVENANT-EVI

DENCE.

In an action for breach of covenant for quiet enjoyment, where the issue is as to the validity of a tax title, a recital in the deed to their common grantor that the maker was seised in fee of the land conveyed is sufficient to sustain a finding of title out of the common-wealth.

Appeal from court of common pleas, Warren county; C. H. Noyes, Judge.

Assumpsit by James McGrew against Hosea Harmon. There was a judgment for plaintiff, from which defendant appeals. Affirmed.

This is the same case we have just considered on the appeal of plaintiff (30 Atl. 265), where the facts will be found stated.

DEAN, J. The learned judge of the court below, in a very clear and forcible opinion, properly disposed of all the questions raised on this appeal. The recital in the deed from Huidekoper to McKinney, the common grantor of both parties, that he was seised in feeof the title, was sufficient to warrant the finding of fact of title out of the commonwealth. That was, in effect, an averment of title in Huidekoper, and therefore, necessarily, that the commonwealth had no title to land which both parties claimed under Huidekoper. The assignments of error are overruled, the judgment is affirmed, and the appeal is dismissed, at costs of appellant.

OIL CITY v. HARTWELL. (Supreme Court of Pennsylvania. Oct. 15, 1894.) SCIRE FACIAS COPY OF CLAIM -- JUDGMENT FOR WANT OF AFFIDAVIT OF DEFENSE.

A scire facias answers the purpose of a writ and declaration, and where the writ served on defendant contains every ingredient of a statement of claim under Act 1887, and compliance is had with Act 1889, art. 15, § 22, relating to municipal liens, which provides that, reference being made in the praecipe instituting the suit to the place where a claim is registered, it shall not be necessary to file a copy of the

PER CURIAM. If the judgment against defendant for want of an affidavit of defense was not unauthorized, neither of the specifications of error can be sustained. They are both predicated on the assumption that the judgment was without authority of law, because no copy of plaintiff's claim was served on defendant, and hence plaintiff was not entitled to judgment. This assumption, and the conclusion drawn therefrom, would be correct if it were not for the fact that the writ of scire facias, in cases such as this, takes the place of what, under the old practice, was called a "declaration" or "narr.," and under the new a "statement." As was said by Mr. Chief Justice Gibson in McKinney v. Mehaffey, 7 Watts & S. 276, "a scire facias answers the purpose both of a writ and a declaration." No change in that regard has been effected by the act of 1887. The writ, served on the defendant in this case more than 15 days before return day, contains every ingredient necessary to a complete statement of claim under the provisions of that act. The municipal act of 1889 (article 15, § 22), relating to municipal liens provides "that reference being made, to the number and term to which, and the docket and page in which such claim or claims are registered, in the praecipe instituting the suit, it shall not be necessary to file a copy of the same." In this case that provision was strictly complied with, and the defendant was thus furnished with all the information she was entitled to, or could have had if plaintiff had served her with a copy of its claim. The record shows that the case was ripe for judgment when the same was entered, and hence there was no error in discharging the rule to show cause why it should not be stricken off. Judgment affirmed.

DOONER v. DELAWARE & H. CANAL CO. (Supreme Court of Pennsylvania. Oct. 1, 1894.) INJURY TO BRAKEMAN-DEFECTIVE FREIGHT CARS -NEGLIGENCE-FLYING SWITCHES OPINION EVIDENCE-DAMAGES EXPECTANCY OF LIFEINSTRUCTIONS.

1. It is the duty of a railroad company to its brakemen to take ordinary care that the ends of freight cars be furnished with such handles, ladders, or safeguards as are in common, ordinary use on railroads.

2. Const. art. 17, § 1, directing railroads to

receive and transport cars, without delay or discrimination, of a connecting road, does not oblige it to move such cars when not provided with the appliances which ordinary care requires for the safety of the crew, and therefore does not relieve them from liability to their employés in negligently doing so.

3. It is not contributory negligence for a brakeman to make a flying switch, where it is required by the nature of his employment.

4. Where a brakeman had not previously been on a car which he was to sidetrack by a flying switch, and claimed that he did not know that it was unprovided with handles to grasp after uncoupling it, his duty having compelled him to act at once without opportunity for inspection, the question of his contributory negli gence is for the jury.

5. It is error to admit the opinion of an expert as to whether it was a defect in a freight car that there was nothing on the end of it for a brakeman, after uncoupling for a flying switch, to lay hold of.

6. While a railroad may prove not only written but oral instructions given to its assistant inspectors, its inspector cannot give his opinion as to what the duties of the assistants were under the instructions given by him to them.

7. An instruction that "no sane man would lose a leg for any corporation, but you are not to be guided by such a consideration as that in arriving at the amount of damages," is objectionable, as drawing away the mind from the legal measure of damages.

8. An instruction is improperly given where there is no evidence on which to base it.

Appeal from court of common pleas, Luzerne county.

Action by John F. Dooner against the Delaware & Hudson Canal for injuries received as a brakeman in defendant's employ. Judgment for plaintiff. Defendant appeals. Reversed.

Andrew H. McClintock and George R. Bedford, for appellant. L. H. Bennett and John McGahren, for appellee.

DEAN, J. The plaintiff, John F. Dooner, was a railroad brakeman. This had been his occupation for about five years, and for the last year prior to 31st of October, 1889, he was in the service of the defendant company. On that day, while in the performance of his duty as brakeman, he was run over by a freight car which defendant was transporting, and lost his leg. The accident came about in this way: The railroad of defendant begins at Wilkes Barre, where it connects with a number of railroads entering and passing through the city. It is the duty of defendant to accept and transport the cars of other roads over its lines on their way to destination. A regular freight train is made up on defendant's road, to run north from Wilkes Barre, about 2 o'clock in the afternoon of each day. On the day in question this train numbered 22 cars, in charge of a crew made up of a conductor, engineer, fireman, and four brakemen. The brakemen were placed on the train-First, Ross; second, Dooner, this plaintiff; third, May; and, fourth, Alles. Among the cars making up the train was one-No. 1,093-laden with apples, received from the Pennsylvania Railroad. This car was coupled to the engine,

and the next car to it was one of merchandise, both to be cut off and side-tracked at Scranton. The train, thus made up and manned, left Wilkes Barre and reached Scranton on defendant's road, where it runs by a stone-arched subway under the Lackawanna Railroad. The car of merchandise was to be left at a siding south of this subway, and the car of apples on a siding north of it. Dooner attended to the switching. The merchandise car was first placed upon its proper siding. Then the apple car was run to another siding by what is called a "flying switch," that is, uncoupling the car from the engine while moving, and applying the brake to the car, the engine then making such distance between it and the car, by its increased speed, as to allow of connecting the side track with the main track at the switch after it has cleared the connection. Dooner, standing on the beam, four to five inches wide, uncoupled the apple car from the locomotive; then, from the right side, signaled the engineer to go ahead; then turned to apply the brake on the left side, fell from the beam to the track, and had his leg crushed. The plaintiff alleged his injury was caused by defendant's negligence in not furnishing this apple car with the ordinary appliances of safety, such as ladders or grabs; in consequence, in performance of his work with ordinary care, he was seriously crippled. He alleges that after drawing the coupling pin, and while standing on the narrow beam of the car, he turned to seize hold of a handle, grab-iron, or rod, which ought to have been there, but, there being none, he fell to the track. The defendant contended that plaintiff was guilty of contributory negligence in side-tracking the train by the "flying switch," instead of by pole or rope; (2) in not discovering the absence of grab-iron, handles, or rods, before he attempted a dangerous method of side-tracking the car; (3) in not remaining on the center of the beam, and from there signaling to the engineer, instead of going to the side of the car for that purpose. The court submitted the evidence of negligence of defendant and contributory negligence of plaintiff to the jury. There was a verdict and judgment for plaintiff, from which defendant appeals.

The appellant prefers 22 assignments of error, which might have been materially reduced in number without in any noticeable degree weakening the force of the argument.

The first to eighth, inclusive, and tenth, eleventh, twentieth, and twenty-first aver errors in admission of and rejection of evidence and statements of the law on the question of defandant's negligence. The ninth and fourteenth to nineteenth, inclusive, allege error in the rulings of the court as to contributory negligence on part of plaintiff. The twelfth and thirteenth allege error in the instruction as to measure of damages. The twenty-second complains of a denial of peremptory instruction to find for defendant.

As touching the negligence of defendant, a photograph of the end of a car was exhib ited in evidence by plaintiff, as representing the end of this apple car, except that the apple car had no grab-iron like that in the photograph. The plaintiff and one other witness testified to this. If this were the fact, -and that was for the jury,-then this car had on the end near the side of it a brake wheel and chain; in the center, two small iron steps, for getting up to the roof,-the first about three feet from the beam or platform, the second about the same distance above the first. The rule as to the duty of the employer, in view of this testimony, was correctly given to the jury by the court below. They were told that it was the duty of defendant to exercise reasonable care in furnishing its servants with safe machinery and implements for the transaction of its business; but that the law required nothing more; that it was not bound to furnish the best and safest appliances, the latest improvements, but was bound to take reasonable and ordinary care to furnish such car handles, ladders, or safeguards as are in common, ordinary use upon railroads; and that it was not answerable to plaintiff for injury from a risk merely incident to his employment. This is, in substance, the law deducible from all the authorities.

Nor does the fact that the car in question was received from another road, to be transported by defendant's employés over its own road, relieve defendant from the duty of ordinary care in this particular. While every road must obey the mandate of section 1, art. 17 of the constitution, to "receive and

transport *** * cars, loaded or empty, without delay or discrimination," of another connecting road, yet by no reasonable construction can that be held to mean cars of another road not in a condition for transportation, or not provided with the appliances which ordinary care requires for the reasonable safety of train crews in properly handling them. The obvious purpose of the section was to prohibit common carriers from discriminating in transportation between their own cars and those of other roads. All were to be moved over the lines of each other, with the same promptness and impartiality. But the constitution no more commands one road to move defective cars from other roads than to move its own cars when defective. So that, if there were any evidence of negligence here, there was no error in the instruction by which the evidence was submitted to the jury. The case of Anderson v. Oliver, 138 Pa. St. 156, 20 Atl. 981, cited by appellant, is not in point. In that case, it was not the duty of the employé to move the defective car, and his employer neither controlled nor managed the transportation on the railroad. In the case of Kohn v. McNulta, 147 U. S. 238, 13 Sup. Ct. 298, also cited, the alleged defective car of another road was of a design in daily use on the road where plain

tiff was employed, and he had both seen and coupled cars like it. It was not out of repair, but merely of a design peculiar to the same class of cars on the connecting road, and it did not appear that it was lacking in any of the usual appliances of this class of cars. The measure of duty of the receiving road, as to cars turned over to it for transportation by connecting roads, is settled by many cases. "It is bound to make such inspection as the nature of the transportation requires, and if it pass and haul cars faulty in construction, or dangerously out of repair, it is answerable to its own employés who are thereby injured." The many cases, both in England and in this country, which sustain in substance this proposition, are cited in Patt. Ry. Acc. Law, p. 309. Here the printed rules of inspection, to govern the inspector in receiving foreign cars seem to assume the existence on the cars of the appliance which plaintiff alleges was absent. On page 10 it is made the duty of the inspector to see that "roof grab-irons, ladder handles, sill steps, ladder sides, and rounds, all sound and securely fastened to car body by either bolts or lay screws," exist. It was alleged that a freight car without handles or grab-irons was absolutely unknown, and without one or the other it was impossible for the brakeman to perform the duty exacted by his employment. The inspector is to see that the appliances are securely fastened, but no instruction is given to reject if they are not there at all. There was also evidence that the inspector was young and incompetent. We think it was a question for the jury to determine as to whether the company exercised the care required of it in this particular. In the case of Railroad Co. v. Huber, 128 Pa. St. 63, 18 Atl. 334, the court says: "The testimony was very abundant that the company enforced a system of daily inspection of all cars at the place of this accident, and, if this had been thorough, the defect in this brake should have been discovered." Whether the system of inspection in this case was thorough depended on the instructions of the company and the competency of the inspector. It was a disputed fact for the consideration of the jury whether, by defendant's negligence, a defective car was taken upon its road, from another road, for transportation.

Then, as to the contributory negligence of plaintiff. There is no doubt that side-tracking a car by a "flying switch" is a highly dangerous operation, requiring quickness of perception and great alertness of movement on part of the brakeman. There is just as little doubt, however, that its performance as a duty by employés is required at times by the employer, especially in cases where the sidetracking must be quickly completed, so as not to encroach on the track when approaching passenger trains are due. There was ample There was ample evidence that this was the exigency here. Clearly, there was no negligence in plaintiff performing a highly dangerous duty, required

by the nature of his employment, although, under ordinary circumstances, a much safer method for accomplishing the same purpose could have been adopted. Was he negligent in attempting the act while upon this car? That would depend altogether on the circumstances. The rule laid down by this court in Coal Co. v. McEnery, 91 Pa. St. 185, and distinctly and emphatically adhered to in Railroad Co. v. Lyons, 119 Pa. St. 324, 13 Atl. 205, and other cases, is that, where the employé has knowledge of machinery being defective and dangerous, and uses it, he voluntarily accepts the risk, and cannot recover damages for an injury caused by such use. This was substantially the instruction given by the learned judge of the court below, and it fully met the facts as they were alleged by plaintiff. He claimed he had not observed this apple car before he attempted to side-track it because it was one in immediate charge of the first brakeman from Wilkes Barre to Scranton; then, when the "flying switch" was to be made, there was no opportunity for previous observation, and his duty compelled him to at once use it; then, when he had drawn the coupling pin, signaled the engineer, and turned to seize the grab-iron or ladder, he first discovered it had neither, and he fell to the track. The plaintiff, in the course of his employment, was bound to notice patent defects; and if this car had been in his charge and under his immediate observation from the time the train left Wilkes Barre, it may be that it would have been contributory negligence on his part to take his place on the beam to side-track it by a "flying switch." But these were not the facts, and the rule in Railroad Co. v. Keenan, 103 Pa. St. 124, applies,-that under these circumstances the evidence on the question of contributory negligence is also for the jury. It was fairly submitted to them. All the assignments of error in the general charge and in answer to points touching the negligence of defendant and con tributory negligence of plaintiff are overruled. The first to fifth assignments are to the admission of evidence, under exceptions, of experts, to prove, in effect, that defendant was negligent; for opinions of witnesses that this apple car was defective and unsafe was substantially proving plaintiff's case by opinion. If this common freight car had been a complicated and intricate piece of machinery, the necessity of the case might have justified calling for the opinion of experts; but the freight car and its appliances were about as simple as the ordinary farm wagon. Plaintiff alleged it was defective because there was nothing to lay hold of when he had drawn the coupling pin. drawn the coupling pin. Clearly, the opinion of a witness as to whether this was or was not a defect was not the opinion of an expert, but of a man of ordinary intelligence and observation. The jury still have some duties to perform. Inferences drawn from the ordinary affairs of life ought not to be drawn for them, and turned over under oath from