of said tract from John Fritz, for the purpose of cutting and removing therefrom the timber purchased by them by virtue of the conveyance hereinbefore recited, and that they were thus in the actual possession of the same at the time of the institution of this proceeding.

"(13) That the respondent, William A. Trogler, at the institution of this proceeding was not in the actual possession and control of any portion of the 88 acres and 114 perches of woodland in dispute, and that neither he nor his predecessors in title had ever been in lawful possession of the same for any purpose.

"Conclusions of Law.

"(1) We find as a matter of law that John Fritz, predecessor in title to the petitioners, as also Jacob Fritz, his predecessor, were bona fide in possession of the woodland now in dispute under color of the title within the meaning and terms of the act of March 8, 1889, as amended by that of April 16, 1903. "(2) That there is not sufficient dispute of the actual possession of the petitioners in this case to oust the jurisdiction of the court under and by virtue of the said acts, or to compel the petitioners to resort to the provisions of the act of June 10, 1893, in order to settle the controversy as to title between the parties.

"(3) That the written agreement of May 14, 1904, entered into contemporaneously with the deed from John Fritz to the petitioners, does not defeat the right of possession vested in the petitioners by virtue of the deed of even date. Without construing it at length, its legal effect is, first, an agreement to reconvey the land to Fritz after the cutting and removal of the timber by the petitioners; second, to fix and make certain the terms of payment for the timber to be cut and removed; third, to cast upon John Fritz, the grantor in the deed given, the burden of defending his title, which burden by virtue of this agreement is probably no greater than that provided for by the warranty of his deed. As we construe the whole transaction, the legal effect of the deed was to vest in Faust and Spangler whatever right of possession and title to the tract named may have been held, claimed, or owned by John Fritz. The contemporaneous agreement in its preamble recites the purpose of the deed as being to enable Faust and Spangler to exercise and enjoy the full and complete control and management of said tract of land so long as any timber remains thereon,' and this purpose involves an absolute right of possession. There is nothing in the further clauses of the agreement which can be construed to minimize, lessen, or defeat this absolute right of possession vested in the petitioners for whatever of possession and control over the timber land had been previous

"Discussion of Law and Facts.

"This proceeding is under the act 01 March 8, 1889 (P. L. 10), which was first amended by the act of May 25, 1893 (P. L. 131), and later by the act of April 16, 1903, (P. L. 212), which amendments, however, are not necessary to be considered here. The act is entitled, 'An act to settle title to real estate,' and in our judgment should receive a fair and liberal construction, and not receive such a narrow construction as to defeat the purposes of the act. There is, of course, a similar act dated June 10, 1893 (P. L. 415), which can be used where the title to property is disputed and to compel settlement of titles. The two acts have a common purpose, viz., settlement of title to real estate, but the provisions of the acts show that they are intended to take effect under different circumstances.

"This proceeding being admittedly under the act of 1889, the question is: What are the jurisdictional facts necessary to put the case within the terms of that act? The language of the act is: 'Whenever any person not being in possession thereof shall claim or have an apparent interest in or title to real estate, it shall be lawful for any person in possession thereof claiming title to the same to make application to the court,' etc. Two facts then must appear to give jurisdiction: First, possession by plaintiff or petitioner claiming title-that is, having color of title-and, second, a claim of title by the other party out of possession. In the petitioner or plaintiff there must be two things-possession and claim of title. As is said by Judge Lindsey, in Welsh's Petition, 13 Pa. Dist. Rep. 498: The possession of a mere intruder, or squatter, without color of title or claim thereto, would probably not be entitled to the benefit of the act.' It is not, however, necessary to decide that the All that is plaintiff's title is a good one. necessary is that there is possession under some claim or color of title. Fearl v. Johnstown, 216 Pa. 205 [65 Atl. 549]; Welsh v. Clough, 216 Pa. 276 [65 Atl. 677], reversing Judge Lindsey in Welsh's Petition, 13 Pa. Dist. Rep. 498.

"In this case, as we have found, the Fritz family, grandfather, father, and son, have been in the actual possession of the land covered by the two warrants, the James Ramsey and the Frederick Long, containing in all 204 acres, clearing over one-half of the said 204 acres during the last 70 years and farming it. The cleared land actually farmed extended, not only over the Ramsey warrant, but for a considerable distance over the line between the two warrants into the Frederick Long warrant. In the action of ejectment brought by respondent against the petitioners in 1905, the description in the pleadings notches out the cleared fields of the Fritz farm extending into the Long warrant and simply describes that which they

(228 Pa. 270) CONDRY v. WILKES-BARRE & WYOMING VALLEY TRACTION CO. (Supreme Court of Pennsylvania. May 16, 1910.) STREET RAILROADS (§ 117*)-OPERATION-ACTION FOR INJURIES-NONSUIT AT TRIAL.

In an action for injury resulting from a frightening of plaintiff's horses by an electric car, a nonsuit is properly entered where the testimony of plaintiff's witnesses shows that the car was running at the usual speed, and not more than 10 to 15 miles an hour between crossstreets, and it is not shown that the speed of the car contributed in any way to the accident.

[Ed. Note.-For other cases, see Street Railroads, Dec. Dig. § 117.*]

Appeal from Court of Common Pleas, Luzerne County.

contradicted by three credible witnesses, and to caution them against an arbitrary or capricious disregard of the weight of evidence for defend

ant.

[Ed. Note.-For other cases, see Trial, Cent. Dig. 88 414-419, 439, 450; Dec. Dig. §§ 187, 194.*]

2. CARRIERS (§ 284*)-INJURIES TO PASSENGER -NEGLIGENCE.

Where a passenger in boarding a car is injured as the result of the starting of the car on a signal by an unauthorized passenger, the railway company is not liable for injuries sustained.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1125-1135; Dec. Dig. § 284.*]

Appeal from Court of Common Pleas, Phil adelphia County.

Company. From a judgment for plaintiff, de

James L. Lenahan, for appellant. Paul Bedford, Frank A. McGuigan, and John T. Lenahan, for appellee.

PER CURIAM. While the plaintiff's horses were standing at the side of a city street, they were frightened by an electric car which approached from the direction in which they were facing. When the car was about 150 feet from them, they suddenly turned across the street in front of it, and ran ahead of it until the wagon collided with a telegraph pole. The negligence alleged in the plaintiff's statement was that the car was run at an excessively high rate of speed. This was not shown. The plaintiff's witnesses testified that the car was running at the usual speed, and the highest estimate of its speed was from 10 to 15 miles an hour between cross-streets. Nor was it shown that the speed of the car contributed in any way to the accident. The burden of proof of negligence was on the plaintiff, and, as none was shown, a nonsuit was properly entered. The judgment is affirmed.

(228 Pa. 243)

fendant appeals. Reversed and remanded.

Argued before FELL, C. J., and MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ.

Thomas Leaming and Owen Roberts, for appellant. William T. Connor and John R. K. Scott, for appellees.

POTTER, J. The plaintiffs in this case claim that Sarah Cohen was injured by the negligent starting of a trolley car while she was in the act of boarding it. As the case was tried in the court below, it turned upon the determination of a single question of fact: Who gave the signal to start the car? If it was given by the conductor, as claimed by plaintiffs, the defendant company was liable for the resulting damages. If, as appeared from the evidence of the defendant, the signal was given by a person not in its employ, and without authority, then the defendant was not responsible for the result. It appears from the record that John McCausland testified that he was a passenger on the car in question and was standing on the rear platform; that, when the car stopped at Sixth and Walnut streets, three or four men got on, and he pulled the bell and gave the signal for the car to start, and then he saw Mrs. Cohen and her husband come from the sidewalk, or from the back of the car, and that

TRANSIT CO.

(Supreme Court of Pennsylvania. May 9, 1910.)

1. TRIAL (§§ 187, 194*) - INSTRUCTIONS FECT OF EVIDENCE.

Er

In an action for injury to a woman while boarding a car, three witnesses whose credibility was unimpeached testified that the signal to start the car was not given by the conductor, but by an unauthorized passenger standing on the back platform; the passenger himself being one of the witnesses. To the contrary there was only the testimony of the woman's husband, which was weakened on cross-examination. Held, that it was the duty of the judge to call the jury's attention to the fact that the husband's statement was unsupported and was

time the car was starting. He said the conductor was inside the car, where he had been collecting fares, but was then on his way to the rear platform. William Johnson testified that he also was a passenger standing on the rear platform, and that, when the car stopped at Sixth street, several persons got on, and that Mrs. Cohen and her husband came up after them, and just about the time the bell was pulled Mrs. Cohen got hold of the car. He said the bell was pulled by a gentleman on the back platform, while the conThe conductor ductor was inside the car.

also testified that he did not ring the bell to

Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ.

J. Howard Gendell, City Solicitor, for appellant. Ellis Ames Ballard, John G. Johnson, and James Gay Gordon, for appellee.

ELKIN, J. The questions raised by this appeal were considered and determined by this court in another proceeding between the same parties about one year ago. Philadelphia v. Phila. Rapid Transit Co., 224 Pa. 544, 73 Atl. 923. When the opinion in that case was handed down, no dissent was noted, and the views therein expressed represent the conclusions of the court. That case rules the one at bar. The court was then asked to construe and did construe the same contract, the same section of the contract, the same proviso, and the same particular words in the proviso, in a similar proceeding between the same parties, involving the rights of the same contracting parties. The question then raised and the issue now presented depend upon the same words in the contract. The findings of fact in the present proceeding do not differentiate the case at bar in principle from the one then decided. The question involved in both cases depends upon the construction of the words "rates of fare" used in the contract, and this question was exhaustively considered by our Brother Stewart, who delivered the opinion of the court in the former case. The court is now of opinion that the decision in that case is conclusive of the questions raised by this appeal. It is argued that the question then presented for determination was the right of the rapid transit company to abolish transfers, and the discussion of other matters relating to the proper construction of the words "rates of fare" should be treated as dicta not binding upon the courts or the parties. It may be that the exact question then raised might have been put upon narrower grounds so as to leave for future determination the broader questions necessarily involved, but the court in reaching its conclusion deemed it necessary to consider broadly the effect of the particular words of the proviso upon which the contentions were then and are now based in order to properly determine the issue then pending. Both cases depend upon the proper construction of the words "rates of fare" used in the contract. The contracting parties failed to define in their written agreement the meaning of these words, and the courts are not at liberty to arbitrarily make a new contract for them or by construction to adopt a meaning not imported by the language used. In ordinary signification, a rate of fare is the unit or basic price upon which the total charge is based. In the transportation

while in the transportation of freight the rate is usually fixed at so much per 100 pounds, and the total charge is calculated upon this basis. In such cases no one would

seriously contend that the rate of fare or the freight rate was the total charge determined upon the basis of the miles traveled or the number of pounds carried. In the carrying of passengers by street railway companies, the rate is fixed at a flat price per ride, without reference to the distance traveled, and this basic price for a single ride in the ordinary and legal signification of the term is the rate of fare. A total charge of 25 cents for 6 rides is not a rate of fare either in the etymological or legal sense. useful purpose will be served by amplifying the discussion at this time because the question was fully considered and disposed of by this court in the case referred to and the conclusion then reached will not be disturbed. Decree affirmed at cost of appellant.

No

MESTREZAT, J. (dissenting). This case, I submit, is not ruled by the recent decision in Philadelphia v. Phila. Rapid Transit Co., 224 Pa. 544, 73 Atl. 923. The question in the present case was not raised by the pleadings, and hence could not have been adjudicated in the former case. This is distinctly shown by the opinion of this court, in which it is said (page 551 of 224 Pa., page 925 of 73 Atl.): "The bill complains that this action of the company (discontinuing transfers on strip tickets) is a change in its established rates of fare in force when the contract was entered into, inasmuch as it requires now a cash payment of 5 cents to secure the same transfer ride which before could be had on a ticket costing but 4% cents; and, since the change was made without the consent of the city, an injunction was asked for to restrain the company from discriminating in the way indicated. The question thus presented is a very narrow one." The right of the transit company to discontinue transfers on strip or six for a quarter tickets without the consent of the city was, therefore, as declared by this court, the only question presented and adjudicated in the former case, and what was said in the opinion as to the right of the company to discontinue the strip ticket itself, the issue in the present case, was obviously purely dicta, and does not now control this court in disposing of that issue. In other words, in the former case, the question was whether the deprivation of the right to a transfer on a strip ticket was a change in the "rates of fare," while the question here is whether the withdrawal of the strip ticket and thereby compelling the passenger to pay 5 cents instead of 4% cents for his ticket is a change in the "rates of fare," within the intendment of the contract between the par