as to the legal sufficiency of the evidence, and abstain from a review or discussion of it in detail. Stirling v. Stirling, 64 Md. 150, 21 Atl. 273; Moore v. McDonald, 68 Md. 341, 12 Atl. 117; Hiss v. Weik, 78 Md. 453, 28 Atl. 400. We will, however, briefly notice the testimony upon which the action of the court below was predicated. It appears from the evidence that the testator was a native German, who came to Baltimore in 1869, when about 29 years old. He shortly afterwards opened a saloon and restaurant on Howard street, near the Richmond Market, which he continued to conduct until he gave up business, about July, 1895. Those of the witnesses who knew him agree that he was a good business man, industrious in his hab its, and, "unlike the general run of saloon men, he was very temperate." He made his will while still engaged in business, when about 55 years old, and when he was, so far as the record discloses, in good health; and, although he lived for six years thereafter, there is no evidence that he made any attempt to alter its provisions, or expressed any desire to do so. Nor does it appear that he had ever declared a purpose to make any other disposition of his property than that accomplished by his will. Here we find everything to strengthen and nothing to weaken the normal presumption of the law of the possession of testamentary capacity on his part at the time he made the will. There is also a complete absence from the record of any testimony connecting the caveatee with the making of the will, or the suggestion of its provisions, or of the use by her of any persuasion or influence upon the testator to induce him to make a will. It does not appear that she was present at the execution of the will, or took any part in its preparation, or was even aware that her husband had made it. Nor, as we have already said, is it shown that the testator had ever intended to make a different disposition of his property than the one directed in his will. The contention of the appellant is that the caveator was inflamed with jealousy at the attention bestowed by her husband upon his daughter, and for that reason, and because of her own selfish greed, she estranged his mind from the daughter, and procured him to exclude her from other than a nominal participation in the distribution of his estate. But, in our opinion, while the testimony appearing in the record shows a fixed aversion on the part of the caveatee to the daughter, there is no evidence connecting that aversion on her part with the disposition of his property made by the testator in his will. The testimony bearing upon the relations existing between the caveators and the caveatee shows that the daughter was born to the testator in 1864, by a wife residing in Germany, from whom he soon afterwards separated, and was subsequently divorced. He was married to the caveatee in Baltimore in May, 1883. In 1880,

when living with the caveatee as his wife, he sent for the daughter, who came to Baltimore at his expense, and was received by him into his home, and always treated by bin with kindness and affection. She was also kindly received, and was for several years well treated, by the caveatee, but in the winter of 1883-nearly 12 years prior to the making of the father's will-the relations between the two women became so strained that the stepmother refused to have any further intercourse with the daughter, or to permit her to reside longer in the family. After an ineffectual effort to secure her reception at home, the daughter went out to service in different families until March, 1884, when she returned to her maternal grandparents in Germany, where she was married in 1885. Since her marriage she has lived with her husband, for the first few years in Germany, and since then in Baltimore. During the few months which intervened between the daughter's departure from her father's house and her return to Germany she several times met her father at other places than his home. At these interviews he treated her with affection, and he occasionally sent her small sums of money. He also told her that he would gladly have her return home if his wife would permit it, but that she could not do so without the wife's consent. While the daughter was in Germany, the testator answered in a friendly tone letters which she wrote to him, and he maintained a friendly attitude toward both her and her husband after they came to Baltimore to live, but he seems never to have visited their home, or to have cultivated any intimacy with them. According to the testimony, the stepmother, and not the daughter, was to blame for their estrangement and separation from each other; but the dislike of the former for the latter partook rather of the nature of fixed aversion or indifference than of bitterness or positive hostility. The record furnishes no direct evidence of efforts on the part of the stepmother to prejudice or imbitter the mind of the testator against his daughter, or that any change in his feelings or disposition toward her in fact took place. The failure on the part of the testator to provide more fully than he did for his daughter in his will was unusual, and, under ordinary circumstances, might be regarded as unnatural, and at variance with the dictates of parental affection; but, when viewed in the light of the facts of the present case, it is not so unreasonable as to furnish evidence that the will was not his free and unconstrained act. During the years in which his moderate property, amounting in value to about $12,000, was earned, the caveatee devoted herself with untiring industry not only to managing, but to performing the actual labor of, his household, kitchen, and restaurant, and probably contributed as greatly as he did to the accumulation of the property. He had recognized this fact in

1883 by conveying to her the house in which they then resided and carried on business, and again, in 1895, by taking in their joint names the title to the new home on Presstman street, which he then purchased.

When he made his will, his daughter had been married for 10 years, and was no longer dependent on him for support. On the contrary, both he and his wife were then growing old, and his property, mainly accumulated by their joint labor, was not more than enough to provide her a plain living. The testimony in the record, when taken all together, does not, in our judgment, furnish any evidence tending to prove that the testator did not make the will which he intended to make, or that the caveatee, who is not shown to have had any connection with the making of the will, procured its execution by the exercise of such undue influence upon the testator as to deprive him of his free agency, and subordinate his will to her own; which is the degree of influence that the law regards as undue, and sufficient to avoid a will procured by its exercise. Davis v. Calvert, 5 Gill & J. 302, 25 Am. Dec. 282; Wittman v. Goodhand, 26 Md. 105; Tyson v. Tyson, 37 Md. 582; Crockett v. Davis, 81 Md. 154, 31 Atl. 710; Gunther v. Gunther, 69 Md. 565, 16 Atl. 219. There is no evidence whatever in the record even suggesting that any other person than the caveatee exercised any influence over the testator in connection with the making of his will.

The appellant also contended that the granting of the prayers at the close of the caveator's evidence was premature, because Act 1894, c. 516, relates only to actions of law in tort or contract, and does not apply to proceedings under a caveat. That act has no reference whatever to cases like the present one, in which the court grants the defendant's prayer at the close of the plaintiff's evidence. It is apparent from the contents of the act that it relates solely to cases in which the court rejects the defendant's prayer offered at that stage of the trial, and its purpose is to prevent the defendant whose prayer has been thus rejected from losing the right of offering evidence in his own behalf because of having submitted the prayer, as would have been the case before the passage of the act. We find no error in the action of the court below either as to the propositions contained in the prayers which were granted or the time of granting them, and we will affirm the rulings appealed from. Rulings appealed from affirmed, with costs.

BALTIMORE & O. R. CO. v. STATE, to Use of ROMING et al.

(Court of Appeals of Maryland. Dec. 3, 1902.) RAILROAD CROSSING ACCIDENT-NEGLIGENCE -CONTRIBUTORY NEGLIGENCE-QUESTIONS FOR JURY.

1. The driver of a wagon, who had been drinking, approached a familiar railroad cross

ing at 10 o'clock at night; the track to the east being visible as he neared the crossing for distances varying from 1,275 to 1,115 feet. and from the center of the tracks about 850 feet. He was struck by a train coming from the east, which had sounded a whistle about 600 feet east of the crossing, and again at a nearer distance. The train was running from 15 to 18 miles an hour. Held, that the driver was guilty of contributory negligence, as a matter of law.

2. The engineer was keeping a lookout, but did not see the horse in time to avert the accident, though he stopped the train within its own length. Held, that the company was free from negligence, as a matter of law.

Appeal from Baltimore city court; George M. Sharp, Judge.

Action by the state, for the use of Julia Roming, widow, and others, against the Baltimore & Ohio Railroad Company. From a judgment for plaintiffs, defendant appeals. Reversed.

Argued before McSHERRY, C. J., and FOWLER, BOYD, PAGE, PEARCE, SCHMUCKER, and JONES, JJ.

Hugh L. Bond, Jr., W. Irvine Cross, and Edward T. Noble, for appellant. William S. Bryan, Jr., and Edwin Burgess, for appellees.

SCHMUCKER, J. The equitable appellees are the widow and children of John C. Roming, who was struck and killed by a passenger train of the appellant at a grade crossing near Annapolis Junction. The suit was brought for their use, to recover damages for the loss of his life, which the declaration alleged was caused by the negligence of the servants of the appellant. The verdict and judgment were against the defendant, and it appealed.

There are several exceptions in the record to the rulings of the court below, but the substantial issue in the case is presented by the rejection of the defendant's first and second prayers, offered at the close of the evidence. The first prayer asked the court to take the case from the jury for want of evidence legally sufficient to show that Roming's death had been directly caused by the negligence of the defendant or its agents. The second prayer instructed the jury to find for the defendant because by the undisputed evidence the negligence of Roming directly contribu ted to the accident which caused his death.

A plat of the location of the accident, made from actual measurements, was used, by agreement, as if it were part of the record, at the hearing of the case. From this plat, and the testimony of the witness Zepp, who made the measurements, it appears that at the crossing where the accident occurred, and for some distance on each side of it, the railroad tracks run east and west by a uniform curve northerly of 30'. The railroad has two tracks, and there is a switch on the south side of the main tracks, thus making three tracks in all, which the public road crosses at grade. Annapolis Junction station is a little over 100 yards west of the crossing. At

the distance of nearly 200 yards east of the crossing a county road passes over the railroad by an overhead bridge, of a single span, having a clear width of 50 feet between its abutments. From the crossing to the bridge the view is unobstructed, but east of the bridge the railroad runs through a cut of such depth as to conceal a train of cars from the view of a person standing at the crossing, except in so far as the curve in the tracks permits it to be seen by looking underneath the bridge. The railroad company voluntarily maintains a gate at the crossing, which is operated by a gateman during the day, but is left open at night. The public road by which Roming was attempting to cross the tracks when he was killed runs a short distance south of, and nearly parallel to, the railroad, until it reaches the crossing, where it turns north by almost a right angle, and crosses the tracks. Roming at the time of the accident had been going east on this road until he reached the crossing, when he turned north across the railroad. The train by which he was struck was coming west toward him, on its way from Baltimore to Washington. The witness Zepp testified that by actual measurement the distance from the grade crossing to the overhead bridge was 575 feet. He further testified that, in approaching the crossing from the south by the road on which Roming traveled, he could, when 50 feet south of the center line between the tracks, by looking easterly under the overhead bridge, see a man standing in the center of the west-bound track, 1,275 feet distant; that, when 45 feet south of the center of the tracks, he could see him 1,245 feet off: that when 35 feet south of the center of the tracks he could see him 1,150 feet off, and, when 25 feet south of the center line of the tracks, he could see him 1,115 feet off. He further testified, though not from actual measurement, that he was positive that one standing midway between the tracks at the crossing could see the west-bound track at least 250 feet beyond the bridge, and that when standing there he had in fact seen trains approaching from the east at that distance beyond the bridge. There was no direct contradiction of this testimony, although other witnesses expressed the opinion that the distance from the crossing to the bridge was somewhat less than Zepp's measurement made it, and that a west-bound train could not be seen by one standing at the crossing until it reached the bridge. The accident by which Roming lost his life occurred at about quarter past 10 o'clock at night. No one saw the actual collision between the train and the wagon in which he was riding. J. W. Furley, the engineer of the train, testified that as he approached the crossing he was standing in his usual place, in the righthand side of the engine cab, looking forward, and when within an engine length of the crossing he saw a horse trying to cross the track, and that he at once pulled the whistle 53 A.-43

with one hand, and applied the brake with the other hand; that he stopped the train (five cars and the engine) within its own length, and went forward and found Roming under the tender, which had dragged him along after he was struck; that the train was running from 15 to 18 miles an hour at the time, and nothing could have been done to save Roming after the horse was seen. The engineer further testified that, when ap proaching Annapolis Junction from the east, he is in the habit of blowing a long blast for the block signal at the station when about 100 yards east of the bridge; then, as he goes into the cut toward the bridge, he sees the block signal, and responds at once by two short blasts of the whistle, to notify the signalman that he has seen the signal; that he blew all of these blasts of his whistle at the usual places on the night of the accident, and also blew the danger signal as soon as possible after seeing the horse on the track in front of him; that out in the open country his train runs 50 to 60 miles an hour. but as he approached the junction on that night he had his train somewhat under control, as he expected to be signaled to stop there for passengers, and was looking out for that signal, as well as for the block signal. The fireman and the conductor on the train and the night operator at the signal tower all corroborated the engineer's testimony as to blowing the long blast of his whistle before reaching the bridge, and subsequently the two short blasts in response to the block signal. Bertha McCauley, who was waiting at the station, heard the long blast of the whistle when, as she said, the engine was coming under the bridge, and also the short blasts which followed. The fireman also testified that he began to ring the bell at the sounding of the long blast of the whistle, and continued to ring it as they approached the station. There is no contradiction of this testimony as to the giving of the usual signals from the train as it approached the crossing, except that of David Sykes and his son Philip, who lived a short distance west of the station; and they only testified that they heard no whistle or bell prior to the danger signal, which they said came simultaneously with the crash of the collision. Bertha McCauley also said that "she never noticed the bell." Charles A. Murphy testified that Roming called at his mill about 3 o'clock on the afternoon of the accident, and that "he was under the influence of liquor, to a certain extent, so any person could easily tell it, but not drunk enough not to know that he wanted to buy chop and to pay for it." George Diven, who keeps a saloon at Laurel, testified that Roming was at his saloon on that afternoon, and left about 7 o'clock; that he drank six glasses of beer while there, and took away a dozen beers in his wagon, but that "he seemed to be able to take care of himself, and knew what he was doing when he left." Richard White

head testified that Roming on that evening drove him from Diven's saloon to his home, about halfway between Laurel and Annapolis Junction, and remained there until about half past 8 o'clock, and further said: "It looked to me like Roming was able to take care of himself. He was sober then, I suppose." Nothing further was seen of Roming by any of the witnesses until about 10 o'clock, or shortly after when he was seen by David Sykes and his son Philip to pass their house in his wagon going east on the public road which crosses the railroad at the place of the accident. The Sykes house stands a short distance west of the railroad station. Roming passed the house at a gentle trot, and he was seen by Philip Sykes until his wagon turned north into the railroad crossing, and got nearly on the track, not more than four yards distant, when it was concealed from view by a coal bin standing there. This witness further testified that when he thus lost sight of the end of Roming's wagon it was "almost at a standstill, like," and that although the witness was then looking east, right down toward the overhead bridge and the cut beyond it, no train whatever was in sight. It further appears from the uncontradicted testimony that Roming lived near Annapolis Junction, and often came there, and was familiar with the whole local situation, and that he was a strong and healthy young man, and had good sight and hearing.

The mutual and reciprocal obligations of railroad companies and travelers about to cross their tracks on public highways have been clearly defined by numerous decisions in this state. The recognized doctrine upon the subject was well stated in Railroad Co. v. Hogeland, 66 Md. 160, 161, 7 Atl. 105, 106, 59 Am. Rep. 159, as follows: "The railroad trains, from the nature of things, have the precedence of passing the crossing of public | ways unobstructed; but it is the duty of those directing the trains to be careful to give all proper and sufficient signals of their approach, and to take all reasonable precaution, in view of the nature of the crossings to avoid collision. Failure in the strict performance of these duties to the public, whereby injury is inflicted upon individuals, will subject the company to liability to respond in damages to the injured party. But while such is the plain duty of the managers of railroad trains. it is equally the duty of those approaching the crossings as travelers upon highways to approach with care: and the more difficult and dangerous the crossing, the greater the care required. The rule is now firmly established in this state, as it is elsewhere, that it is negligence per se for any person to attempt to cross tracks of a railroad without first looking and listening for approaching trains; and, if the track in both directions is not fully in view in the immediate approach to the point of intersection of the roads, due care would require that the party wishing to cross the railroad track

should stop, look, and listen, before attempting to cross. Especially is this required where a party is approaching such crossing in a vehicle, the noise from which may prevent the approach of a train being heard. And if a party neglect these necessary precautions, and receives injury by collision with a passing train which might have been seen if he had looked or heard if he had listened, he will be presumed to have contributed by his own negligence to the occurrence of the accident; and, unless such presumption be repelled, he will not be entitled to recover for any injury he may have sustained. This is the established rule, and one that the courts ought not to relax, as its enforcement is necessary as well for the safety of those who travel in railroad trains, as those who travel on the common highways." Hogeland's Case has been cited with approval and relied on in numerous cases, and has been affirmed as recently as in Holden's Case, 93 Md. 420, 49 Atl. 625, and McNab's Case, 94 Md. 726, 51 Atl. 421. In Watson's Case, 91 Md. 354, 46 Atl. 996, the court said it will not do for the plaintiff to say that he looked, and did not see, or listened, and did not hear, the train, when the facts of the case show that, if he had looked or listened with the requisite care or caution, he must have seen or heard it. Tested by these authorities, it must be presumed that Roming's own negligence directly contributed to the accident which caused his death. The uncontradicted evidence shows that when he had turned into the crossing, and almost reached the tracks, no train was in sight. When the train did in fact come, he could have seen the headlight of the locomotive at a distance sufficiently great to have enabled him to avoid the collision by the use of reasonable and ordinary care and prudence. The usual blasts of the whistle were sounded as the train came up, and, further than that, it is almost incredible that a heavy train, approaching, before its speed was slackened, at 50 or 60 miles an hour, did not make noise enough, in the quiet of the night in the country, to have been heard by him if he had listened for it with proper caution. Whether he loitered upon the crossing after he passed out of sight of the witness Sykes, or whether the condition in which his free indulgence in beer left him so blunted and confused his senses as to deprive him of the ability to exercise that measure of care which his situation demanded, cannot now be told, and must remain a matter of specu lation. The appellees not having been able to produce any explanation for his failure to avoid the train, when by the exercise of proper care he might have seen or heard it in time to save himself, they cannot recover for any injury they may have sustained from his death. If he had survived, he would have been unable to recover, under these circumstances, for any injury caused by this collision; and as their right is, under the

statute, no greater than his, they suffer from the same disability.

The record does not, in our opinion, furnish legally sufficient evidence of any negligence of the appellant directly contributing to the collision by which Roming lost his life; but, if it did contain such evidence, it is apparent from all of the facts of the case that he is chargeable with contributory negligence of such character as to preclude the right of the appellees to recover in this suit.

The defendant's first and second prayers should have been granted, and, for the error of the circuit court in rejecting them, the judgment appealed from must be reversed; and, as it is apparent that the appellees are not entitled to recover, no new trial will be awarded. Judgment reversed, with costs, without awarding a new trial.

GEORGE JONAS GLASS CO. v. ROSS. (Supreme Court of New Jersey. Dec. 20, 1902.)

FORCIBLE ENTRY AND DETAINER-JURISDICTION OF DISTRICT COURT-TITLE TO ACT. 1. Under section 107 of "An act concerning district courts" (Revision of 1898), as amended in 1901 (P. L. p. 68), a district court cannot lawfully take jurisdiction to dispossess a tenant for holding over after default in payment of rent, unless the affidavit presented proves facts which, apart from that statute, give the landlord a right of re-entry for nonpayment of rent. The title to the act cannot constitutionally support a change in the relative rights and liabilities of landlords and tenants.

(Syllabus by the Court.)

Certiorari to Atlantic City district court. Action by the George Jonas Glass Company against H. Wiley Ross. Judgment for plaintiff, and defendant brings certiorari. Reversed.

The writ in this case removes a proceeding in the district court of Atlantic City, brought by a landlord to dispossess his tenant for nonpayment of rent. The affidavit, verified on August 18, 1902, on which jurisdiction was taken, was as follows:

"State of New Jersey, Atlantic County-ss. : David C. Applegate, of full age, being duly sworn, on his oath says that he is the secretary and agent of the George Jonas Glass Company, a corporation of the state of New Jersey; that one H. Wiley Ross is now in the occupancy and possession of a certain house and premises of the said George Jonas Glass Company, situate in the township of Buena Vista, in the county of Atlantic, aforesaid,-said house and lot being more particularly described as the west half of the double house situate on lot No. 185 of the town plot of Minatola, on the south side of Summer road, in the village of Minatola, in the township aforesaid,-upon an agreement between the said George Jonas Glass Company and the said H. Wiley Ross, made on the 1st day of April, 1901, by which the said George Jonas Glass Company leased the said premises to the said H. Wiley Ross by the month, at the monthly rent of seven dollars, payable at the end of each month; that, in pursuance of the said agreement, the said H. Wiley Ross entered into possession of the said premises on the first day of April, 1901, by virtue of said agreement, and now is indebted to the said George Jonas Glass

Company in the sum of seven dollars for rent of the said premises due on the first day of August, 1902. And deponent further says that the said H. Wiley Ross has not paid the said rent nor delivered up the said premises, but that he has made default in the payment of said rent, and holds over and continues in possession without the permission of the said George Jonas Glass Company."

Argued November term, 1902, before DIXON, COLLINS, and HENDRICKSON, JJ.

Louis H. Miller, for plaintiff. John C. Reed, for defendant.

COLLINS, J. The sole reliance for support of the proceeding under review is upon section 107 of "An act concerning district courts" (Revision of 1898), as amended in 1901 (P. L. p. 68). That section purports to authorize the removal of tenants and others holding over in possession of demised premises in certain cases, one of which is "where such person shall hold over after any default in the payment of the rent pursuant to the agreement under which such premises are held." Under an appropriate title such legislation would apply to every case within its terms, but under a title embracing nothing beyond judicial jurisdiction and procedure it can extend only to cases where, independent of the enactment, a landlord has the right to recover possession of demised premises in default of payment of rent. Under article 4, § 7, par. 4, of the constitution, the object of a law must be expressed in its title, and the title of that cited does not indicate a purpose to declare or change the relative rights of landlords and tenants. We must look elsewhere, therefore, for any right of a landlord which this district court act can effectuate. At common law nonpayment of rent did not work a forfeiture of the demised term. The remedy of the landlord was to sue the tenant for the rent reserved, or which he had agreed to pay, or for use and occupation if the rent was not fixed. It was usual, however, to reserve in a lease a right of re-entry for nonpayment of rent, and in such case there might have been recovery of possession if demand of the rent should have been made on the demised premises on the due day at a convenient time before sunset. Such a demand was an essential prerequisite to the exercise of the right of re-entry unless dispensed with by express agreement of the parties. Co. Litt. 202a, and Hargrave's note 3 to that page; Duppa v. Mayo, 1 Saund. 282, note 16. Except as modified by statute, the law remains, generally, in this country, as stated. Tayl. Landl. & T. § 493, and cases cited. Until 1847 there was no legislation in this state on the subject, except the enactment, in substance, in 1795, of 4 Geo. II, c. 28, whereby ejectment was authorized without formal demand or re-entry if a half year's rent should be in arrear, and no sufficient distress was to be found; but the statute operated only when the landlord had otherwise a right of entry by law. Pater