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was rested mainly on the ground that a man cannot lawfully do indirectly that which it is unlawful for him to do directly. He cannot shoot or maim, or set a ferocious dog upon, a mere trespasser. He shall not there place a concealed machine where it be likely to do the same thing, or let such a dog loose in his grounds without warning: Deane v. Clayton, 7 Taunt. 489; Пlott v. Wilkes, 3 Barn. & Ald. 304; Bird v. Holbrook, 4 Bing. 628. It is, however, equally well settled that the owner of property is not liable to a trespasser, or to one who is on it by mere permission or sufferance, for negligence of himself or servants, or for that which would be a nuisance if it were in a public street or common, where all persons had a legal right to be without question as to their purpose or business.

It will be unnecessary to pass in review all the cases which in England and this country establish the principle, or to examine and reconcile if possible those which seem to conflict with it. It is put in many of them on the grounds of contributory negligence in the trespasser. It is plain, however, that the two principles are entirely independent of each other, though they do in fact often concur, and thereby have made confusion. In Hounsell v. Smith, 7 Com. B., N. S., 731, the plaintiff fell down a quarry, which was left open and unguarded on the uninclosed waste lands of the defendant, over which, in passing from one public highway to another, the public were freely allowed to walk; it was held that the defendant, the owner, was under no legal obligation to fence the excavation, unless it was made so near to a public road or way as to constitute a public nuisance, or in other words, to render the lawful use of such public road dangerous. "No right is alleged," says Mr. Justice Williams; "it is merely stated that the owners allowed all persons who chose to do so, for recreation or for business, to go upon the waste without complaint; that they were not churlish enough to interfere with any person who went there. He must take the permission with its concomitant conditions, and it may be perils." This decision was cited with approbation and affirmed in Binks v. South Yorkshire R'y etc. Co., 3 Best & S. 244. But a much stronger case, and more directly in point, is Lygo v. Newbold, 9 Ex. 302. It was there decided that even an express permission given to the plaintiff by the defendant's servant to occupy a place to which she had no right would not cast responsibility on the master. The plaintiff in that case, without the defendant's authority, but by the permission of his servant, rode in a cart along with some goods which the de

fendant had contracted to carry for her. The cart, being insufficient, broke down, and the plaintiff was injured. It was held that she could not recover.

Thus the three superior courts of England, the common pleas, queen's bench, and exchequer, concur in this doctrine.

But our own case of Knight v. Abert, 6 Pa. St. 472 [47 Am. Dec. 478], is on all fours with them. It was there decided that though no action lies in Pennsylvania for trespass by cattle pasturing on uninclosed woodland, yet, that not being a matter of right, the owner of land is not liable for an injury sustained by such cattle falling into a hole dug by him within the bounds of his land, and left uninclosed. "He who suffers his cattle to go at large," says Gibson, C. J., "takes upon himself the risks incident to it." So must a person, using by permission or sufferance the private property of another, take upon himself the risks incident to it. To the same effect, if closely examined, is Philadelphia and Reading R. R. Co. v. Hummel, 44 Pa. St. 378 [84 Am. Dec. 457]. The plaintiff below in that case was a boy of tender years, to whom no contributory negligence could be imputed. He was on the track of a railroad, not at a crossing. It was held that the railroad company, as to persons so on the track, were not bound to give any warning at starting. "Blowing the whistle of the locomotive, or making any other signal," said Mr. Justice Strong, "was not a duty owed to the persons in the neighborhood, and consequently the fact that the whistle was not blown nor signal made was no evidence of negligence." And again: "There is as perfect a duty to guard against an accidental injury to a night intruder into one's bed-chamber as there is to look out for trespassers upon a railroad, where the public has no right to be." No reference is made in the opinion to Lynch v. Nurdin, 1 Q. B. 29, a decision much controverted, but one which has stood its ground. But in that case the careless act of the defendant, in leaving a horse and cart standing in a public street without anybody to watch it, amounted to a nuisance, and it is to be distinguished on that ground. Had it been left standing on an open, uninclosed lot, the ruling in all probability would have been different. Yet a doubt has been more than once expressed, whether when a child receives an injury from indulging in what is called "the natural instinct of a child," by getting up behind a gentleman's carriage whilst it is in motion, or standing in charge of a coachman, though without a servant on the foot-board, the principle of Lynch v. Nurdin supra, would apply: Wilson v. Brett, 11 Mees. &

W. 113; Lygo v. Newbold, 9 Ex. 302. It would matter not, so far as his master was concerned, whether the coachman allowed it or not.

The application of this principle to the determination of the case in hand is not difficult. The plaintiff may not have been technically a trespasser. The platform was open; there was a general license to pass over it. But he was where he had no legal right to be. His presence there was in no way connected with the purposes for which the platform was constructed. Had it been the hour for the arrival or departure of a train, and he had gone there to welcome a coming or speed a parting guest, it might very well be contended that he was there by the authority of defendants, as much as if he was actually a passenger, and it would then matter not how unusual might have been the crowd, the defendants would have been responsible. As to all such persons to whom they stood in such a relation as required care on their part, they were bound to have the structure strong enough to bear all who could stand on it. As to all others, they were liable only for wanton or intentional injury. The plaintiff was on the spot merely to enjoy himself, to gratify his curiosity, or to give vent to his patriotic feelings. The defendants had nothing to do with that. They were conveying the President of the United States and his party on a special excursion train. They must have stopping-places. They were certainly under no obligation to keep them secret. On the occasion in question, it seems that they meant to do so in order to prevent detention and confusion. As we have seen, they cannot be made liable by the unauthorized act of one of their employees, through whom it leaked out what the hour was the train was expected to arrive at Johnstown, nor for that of another in backing up the train so as to give the people who had assembled an opportunity of seeing and hearing the President. I am bound to have the approach to my house sufficient for all visitors on business or otherwise; but if a crowd gathers upon it to witness a passing parade and it breaks down, though it may be shown not to have been sufficient even for its ordinary use, I am not liable to one of the crowd, I owe no duty to him. If a traveler by foot, on the open track of a railroad, crosses a bridge which ought to be, but is not in its ordinary use, strong enough to bear a locomotive and train of cars, and a rotten board breaks down under him, the company are not iable to him, for they owe him no duty. However much to be lamented was the sad occurrence which occasioned this suit,

AM. DEC. VOL. XCVIII-21

and however much sympathy may be felt for those who were injured, and the families of those who lost their lives, we are of the opinion that the circumstances of the case were not such as to cast any pecuniary responsibility on the railroad company, and that the learned judge below was therefore right in directing the jury to find a verdict for the defendants. Judgment affirmed.

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LIABILITY FOR INJURY TO TRESPASSER. - That plaintiff was technically a trespasser at the time he received a certain injury, inflicted through the negligence of another, does not defeat his action, unless he was also negligent: Daley v. Norwich etc. R. R. Co., 68 Am. Dec. 413, and note; Norris v. Litchfield, 69 Id. 546. Negligence resulting in injury to another's property is not excused by the fact that the owner of the property committed a trespass in placing the property where it received the injury; the property of a trespasser cannot be negligently injured or destroyed without liability for the consequences: Brown v. Lynn, 72 Id. 768; see Little Schuylkill etc. Co. v. Norton, 64 Id. 672; Kerwhacker v. Cleveland etc. R. R. Co., 62 Id. 246, and the notes to above cases.

OWNER OF LAND IS NOT LIABLE TO TRESPASSER who falls into an excavation which he has made on his land, away from the public highway: Gramlich v. Wurst, 86 Pa. St. 74. Owners of a lot upon which children were accustomed to play will not be liable for maintaining an uncovered and uninclosed well upon the lot, into which a child fell: Gillespie v. McGowan, 100 Id. 144. A boy standing upon a railroad platform to see a train come in was caught by a disarranged step on the locomotive and was injured. In an action therefor by him, it was held that the company owed him no duty in his position, and that they were not liable: Baltimore etc. R. R. Co. v. Schwindling, 101 Id. 258. A mere naked license or permission to enter or pass over an estate will not create a duty or impose an obligation on the part of the owner to provide against the danger of accidents. In this case, one using the track of a railroad was held a trespasser, and not entitled to recover for an injury sustained: Illinois Central R. R. Co. v. Godfrey, 71 IIL 500-507. To the same effect, Jefferson etc. R. R. Co. v. Goldsmith, 47 Ind. 43; Terre Haute etc. R. R. Co. v. Graham, 95 Id. 286, 296. A railroad company is not liable to one who is injured by their defectively constructed station-house, if he was at the house without business, and by mere permission: Pittsburgh etc. R. R. Co. v. Bingham, 29 Ohio St. 364, all citing the principal case. But where a person was injured by a defect in a railroad platform, upon which he was walking while looking after some freight, the company is liable: Toledo etc. R'y Co. v. Grush, 67 Ill. 262, also citing it. It is cited and distinguished in Kay v. Pennsylvania R. R. Co., 65 Pa St. 275.

SCHAFER V. FARMERS' AND MECHANICS' BANK.

159 PENNSYLvania State, 144.]

INDORSEMENT BY THIRD PERSON BEFORE PAYEE-LIABILITY OF INDORSER. - One person made a note payable to another, and it was indorsed by a third party. The payee afterwards indorsed it, and it was discounted for him by a bank. In an action by the bank against the one who in. dorsed the note at the time it was made, held, that he was not liable to either the bank or the payee without evidence dehors that he had assumed a liability to them. INDORSEMENT OF NOTE BY ONE NOT PAYEE AT TIME IT WAS MADE does not authorize the holder or an indorsee to write a guaranty over his indorsement, although a special original agreement may be established by proof. But proof of an agreement other than that which the indorsement imports cannot be by parol, under the statute of frauds. WITNESS.-PAYEE WHO IS ALSO INDORSER OF NOTE which had been indorsed

by a third person before its delivery to him is incompetent to testify as to any special liability which the latter thereby undertook to assume, other than such as his mere indorsement imported.

THIRD PARTY WHO INDORSES NOTE AT TIME IT IS MADE BECOMES LIABLE AS SECOND INDORSER, unless evidence dehors is produced, which may show a special collateral agreement, and in accordance with the understanding of the parties.

INDORSEMENT OF NOTE BY ONE NOT OTHERWISE PARTY TO IT AT TIME IT WAS MADE is not a note in writing, within the statute of frauds, establishing any special or collateral liability of the indorser, for the debt of the maker, different from that which his indorsement imports.

ACTION on a promissory note made by Benjamin Schafer to Jacob and Joseph Schafer, and indorsed by Solomon Schafer and the payees. The action is by the Farmers' and Mechanics' Bank against Solomon Schafer; and he is charged in the first count with having agreed to pay the note, if the bank would discount it for the payees, and in the second and third counts, as second indorser, the payees being the first. At the trial the bank showed due demand, non-payment, and protest, and that they had discounted the note, and paid the proceeds to the payees. One of the payees and indorsers of the note was then permitted to testify to the circumstances attending the giving of the note and the liability which Solomon Schafer undertook to assume when he indorsed the note. Judgment was given for plaintiffs, and defendant took this writ of error.

0. H. Meyer and H. Green, for the plaintiff in error.

W. H. Armstrong and H. D. Maxwell, for the defendants in

error.

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