ces, regardless of notice to stop, required to anticipate that a car might strike his horse, and hence to keep him clear of the track when discharging his load. It was yet light, and the motorman had a clear, unobstruct ed view of the horse and wagon for at least three or four squares. The plaintiff had a right to assume that the motorman would be on the lookout for objects in front of him, as it was his duty to do, and have his car under proper control so that he could stop it to prevent a collision with a person or an object properly in use of the track. Under these circumstances, the plaintiff was justified in using the car tracks temporarily without incurring the charge of negligence. A contrary view of the right of the plaintiff would make him a trespasser, and deny to the public a right which it indubitably possesses in common with a street railway company.

A street car company has not the exclusive right to the use of a street on which it operates its road, nor has it such right to its own tracks. The streets of the municipalities of the state are for the use of the traveling public, and the right of the street railway company to use them is in common with the public. The street railway company and the public are alike liable for the negligent use of the street; each must exercise its rights thereon with care and a due regard for the rights of the other. While, for reasons which are apparent, a street car company must have a superior right to use its tracks in the operation of its road, yet this does not forbid their use by the public, but only requires that in their use the right of the public, under certain circumstances, shall be subordinate to that of the railway company. By placing himself or his horse and vehicle on the tracks of a street railway for any legitimate use of the street, the traveler does not become a trespasser, and will not become such unless he unreasonably and unnecessarily obstructs the company in the use of the tracks. These principles are well settled and have been recognized in the decisions of this court, among them being the very recent case of Fenner v. Wilkes-Barre, etc., Traction Company, 202 Pa. 365, 51 Atl. 1034.

The assignments of error are overruled, and the judgment is affirmed.

(204 Pa. 530)

SPRING et al. v. CITY OF PITTSBURG. (Supreme Court of Pennsylvania. Jan. 5, 1903.)

DEDICATION-PUBLIC SQUARE-ACCEPTANCE. 1. Commissioners appointed by the court laid out lands adjacent to a city in streets and blocks, one of which was shown on the plan filed as a public square. The owner thereof agreed that it should be so used if the city would accept the square and properly care for it.

For 30 years the city allowed it to remain in the owner's control, who paid taxes for a large amount, and at the end of that period requested the city to take the square and repay her for the taxes and street improvements,

which the city thereupon did, and reimbursed her for her expenditures. Thereafter she executed a deed to the city for the square, with the condition that within 10 years it. should cause the square to be improved as a public square. This condition was not fulfilled. Held, in ejectment by the heirs of the owner, that the deed and conditions therein were of no effect, as the transaction was completed when the dedication was accepted by the city.

Appeal from Court of Common Pleas, Allegheny County.

Action by Mary O'H. Spring and others against the city of Pittsburg. Verdict for defendant, and plaintiffs appeal. Affirmed.

Edwin W. Smith, Charles S. Crawford, J. H. Reed, George E. Shaw, and J. H. Beal, for appellants. W. A. Blakely and T. D. Carnahan, for appellee.

POTTER, J. On June 9, 1873, Mrs. Elizabeth F. Denny presented a petition to the common council of the city of Pittsburg. In this petition she set forth that the commissioners, who were appointed by the court of quarter sessions of Allegheny county, under the act of assembly of June 16, 1836, to lay out and report a plan of the territory adjacent to the then city of Pittsburg, and known as the city district, did, in their plan and report made to the court, reserve out of her land a block of ground between Twenty-Ninth and Thirtieth streets, to be appropriated and used as a public square under the name of "Snyder Square." This plan and report were finally approved on October 19, 1843. Mrs. Denny further states in her petition that she was satisfied, and consented at the time, to the said appropriation as a free gift to her native city, for the use, benefit, and comfort of its inhabitants, but that this consent was given on the condition that the public square should be accepted by the city and appropriately cared for as such. But for a period of some 30 years the city had not assumed possession and control of said square, but had permitted it to remain in her possession and control. During that period she had paid to the city in taxes and for the cost of street improvements a sum aggregating $14,693.45. She therefore desired the city to say definitely whether or not it would accept this gift of land proffered so long before, and assume the obligation of putting and keeping it in good shape and condition. This petition was referred to the committee on city property, who afterwards reported that at a conference with the agent of Mrs. Denny terms were agreed upon as contained in a preamble and resolution, whose adoption they recommended, and which was duly passed by both branches of city councils upon June 30, 1873. The preamble recites the facts as set forth in the petition of Mrs. Denny, and recognizes her desire that the city take possession of said square and appropriate it to the uses for which it was dedicated. It also refers to her desire to

be reimbursed for the payments made by her for taxes and street improvements during the period which had elapsed since the date of the original dedication. By the terms of the resolution, the city accepts and assumes possession of said Snyder Square for the uses and purposes for which it was laid out and dedicated, and the controller is directed to issue a certificate for a warrant in favor of Elizabeth F. Denny for the sum of $14,693.45.

The effect of this transaction was to place the city and Mrs. Denny in the same position as though the ground had been accepted at the date of the original dedication, and had been held for public use during the intervening time. It was only upon this basis that she could rightfully ask to be reimbursed for the amount paid out by her for taxes and street improvements.

It might well be held that this was all in affirmance of the original intent to dediIcate at the time of the confirmation of the city district plan. Certainly if there had been an acceptance at that time by the city, Mrs. Denny would have been precluded from afterwards asserting any right incompatible with the purpose of the dedication. Be that as it may, whether the petition to councils in 1873 be considered as a new dedication, or simply as an affirmance of the prior offer to dedicate, we think that the terms and conditions of the acceptance are such, and such only, as are set out in the resolution of the city councils. The dedication was completed when it was accepted upon behalf of the public by the city councils. No particular formality is required to constitute a dedication. Any act or declaration which clearly expresses an intent to dedicate will amount to a dedication if accepted by or on behalf of the public.

Nearly one year after this action by the city councils accepting the dedication and assuming possession of Snyder Square Mrs. Denny executed a deed to the city of Pittsburg for the said square, containing a condition that within the period of 10 years the city should cause the said square to be inclosed and improved as a public square. The contention of the plaintiffs is that all the conditions of this deed are binding upon the city, and by reason of a breach of the conditions the land has reverted to them. This deed was delivered to the city controller by the agent of Mrs. Denny, when he received the money appropriated to her, under the terms of the resolution of city councils, in reimbursement of the payment of taxes and street improvements. Why the deed was given to the controller does not appear. It would seem that it ought to have gone to the city solicitor, as the duty of examination and approving the deed would require technical knowledge of conveyancing, and therefore it should have been performed by the law officer of the city. But, whether accepted by the controller or

by the city solicitor, the duty performed in receiving the deed would be purely ministerial and administrative. The power of city councils to accept the dedication of land for public purposes, and to fix the conditions of acceptance, was not delegated to the city controller. Mrs. Denny was bound to know this, for the rule is well established that individuals as well as courts must take notice of the extent of the authority conferred by law upon a person acting in an official capacity.

The trial judge held that the deed was of no effect in this case. As stated by him in the charge, the transaction, in his view, was completed when the dedication was accepted by councils. He further points out that neither in preamble nor resolution is there any mention of these conditions, or of any time at which they are to be performed, and that the controller would have no power to bind the city or to accept the deed with such conditions. Under this view, there was nothing left in the case to support the claim of the plaintiffs that the title had reverted to them. It does not follow, however, that the city has any right to disregard the purposes for which this land was dedicated to public use. If the authorities are derelict in the performance of their duty in this respect, there are appropriate remedies which may be followed. It is enough for the purposes of this case to say that the conclusion reached by the court below was right.

The specifications of error are overruled, and the judgment is now affirmed.

(204 Pa. 509)

HERRON v. CITY OF PITTSBURG. (Supreme Court of Pennsylvania. Jan. 5, 1903.)

MUNICIPAL CORPORATIONS-NEGLIGENCELIVE WIRE-NOTICE TO CITY-CONTRIBUTORY NEGLIGENCE.

1. In an action to recover for injuries sustained by a boy from contact with a live telephone wire used in the police service of a city, and which had fallen and had become charged from a feed wire of the electric railway, the case is for the jury where the break was known to the police within an hour after it occurred, and it was also known that the wire was in close proximity to other wires carrying dangerous currents of electricity.

2. In an action for injuries received by contact with a live telephone wire used by the police department, evidence of the ordinance and of rules of the police department as to the inspection of wires owned by the city is admissible.

3. Where a father, after leaving his home to go to work, saw a telephone wire on the pavement, and avoided it, it is a question for the jury, in an action for injuries to his son, who passed the same place on his way to school shortly after, whether the father was guilty of contributory negligence in not warning the son of the danger of contact with it.

Appeal from Court of Common Pleas, Allegheny County; Brown, Judge.

Action by Vincent Herron and Hugh Herron against the city of Pittsburg. Judgment

for plaintiffs, and defendant appeals. Affirmed.

Plaintiff was injured by coming in contact with a police call wire which had broken and fallen to the street. The call wire was of itself harmless, but after falling it became charged with a heavy current of electricity from a feed wire of an electric railway. It appeared that about 8 o'clock on the morning of the accident the father of the plaintiff on his way to work saw the wire and carefully avoided it. He did not return to his home, which was a short way off, to warn his son. The boy was injured in the afternoon on his return from school. There was evidence that the police officials knew of the break in the wire within an hour after it occurred. The court admitted, under objection and exception, an ordinance of the city and rules of the police department relating to the inspection and use of the city wires.

The court charged in part as follows: "While the call wire was harmless in itself, yet by its proximate relations to highly or heavily charged wires about it, or in close proximity to it, it might, by contact with such wires, become a source of great danger. Against such danger the city was bound to guard by a high degree of care. This is the rule of care, clearly stated, by the Supreme Court in Fitzgerald v. Edison Electric Illuminating Company, 200 Pa. 540 [50 Atl. 161, 86 Am. St. Rep. 732]. Mr. Justice Mitchell, delivering the opinion, says: 'Wire charged with an electric current may be harmless, or they may be in the highest degree dangerous. The difference in this respect is not apparent to the ordinary observation, and the public, therefore, while presumed to know that danger may be present, are not bound to know its degree in any particular

case.

The company, however (in this case the city), which uses such a dangerous agent, is bound not only to know the extent of the danger, but to use the very highest degree of care practicable to avoid injury to every one who may be lawfully in proximity to its wires, and liable to come, accidentally or otherwise, in contact with them. The duty is not only to make the wire safe, but to keep it so by constant oversight and repair. The case, in this aspect, is analogous to an action against a municipal corporation for an injury from a defective highway. The plaintiff is not bound to show direct and express notice of the defect (to the city in this case), but may show that it has existed for. such a period that it ought to have been known to the authorities (in this case the city of Pittsburg).'

"This raises a question for the jury, viz., as to whether the city, by the exercise of proper care, under all circumstances, ought to have known of this highly dangerous condition upon the pavement. If it ought to have known; if there was such a reasonable time, or, rather, if such a reasonable time elapsed, within which the city, by the exer

cise of proper care, under the circumstances, would have discovered, or ought to have discovered, its dangerous condition on the highway-then the city was guilty of want of care, and is responsible for the damages, at least to the little boy, and perhaps to the father; but that is further along.

"Not only was it the duty of the city to exercise a high degree of care in the situation, by ordinance (and entirely outside of the ordinance that same duty remained), but in the exercise of that care it had methods and means, and it was bound to secure the reasonable method and means by which the proper inspection could be made. It had inspectors, or it was within the power of the city to have inspectors, to make proper inspection at proper times, having due regard to the locality and situation. That is, if a dangerous condition might arise in a section of the town that was very slightly populated, where perhaps few passengers would go by during the day, a less degree of care, in a sense as to time perhaps, would be required there than in a populous center, where it might be that millmen or other persons in large numbers frequently passed (as in this case) a point of danger."

Defendant presented these points:

"(1) That under the pleadings and evidence in this case the verdict should be for the defendant. Answer. Refused. It is for the jury to say whether it is or not.

"Notice to a police or lineman employed by the city of Pittsburg that a telephone wire is down upon the street of the city of Pittsburg is not notice to the city. Answer. Refused, under the evidence and testimony in this case.

"Before the jury can find the defendant guilty of negligence, it must be satisfied by the weight of the evidence that its negligence was the proximate cause of the injury. Answer. Affirmed, and the proximate cause of the injury, as we instruct you, would be the failure of the city, after the lapse of a reasonable time, to remedy that which it was its duty to remedy in order to prevent injury to persons passing along the sidewalk."

Verdict and judgment for Vincent Herron for $6,364, and for Hugh Herron for $864.

W. A. Blakeley and Thomas D. Carnahan, for appellant. Joseph Howley and W. A. Hudson, for appellee.

MITCHELL, J. It is the duty of all parties using a highly dangerous agent to use care commensurate with the danger, in order to prevent injury to persons or property exposed to its influence. Fitzgerald v. Edison Electric Illuminating Co., 200 Pa. 540, 50 Atl. 161, 86 Am. St. Rep. 732. Cities are not ex cepted from the rule, and the fact that the agent is used or supervised under the police power does not excuse negligence in such use. Mooney v. Luzerne Borough, 186 Pa. 161, 40 Atl. 311, 40 L. R. A. 811. The cases deciding that municipal corporations are not

liable for errors of judgment or discretion rest on entirely different principles.

The wire in this case was a police call wire, and broke as early as 8 o'clock in the morning. The fact of the break was known to the police officials presumably at or near that time, and according to the evidence certainly as early as 9 o'clock. The wire was very lightly charged, and not in itself dangerous, but it was a naked wire, and strung on poles in close proximity to other wires, some of which carried strong and dangerous currents of electricity. The fact of the break, therefore, was notice that it might become dangerous, and imposed the duty of examination. Whether that duty was properly met under all the circumstances, the lapse of time, the condition and population of the neighborhood, the urgency of the possible danger, etc., was a question for the jury.

The evidence as to the ordinance, police regulations, etc., though not important, was not incompetent. It merely tended to make more clear and definite the responsibility for due care which existed outside of them.

The father saw the wire on the pavement as he went to work in the morning, and knew that his son would shortly pass the same place on his way to school. He testified that he avoided stepping on the wire, though he did not know whether it was dangerous or not. This was the act of a prudent man. Whether he ought further to have returned to his house, which was close at hand, to warn his son, was not so clear a duty that the court could declare it as a matter of law. It was a question of reasonable prudence or contributory negligence which was properly left to the jury. Judgment affirmed.

WILL-EXECUTION-VALIDITY-ALTERATION.

1. All of the granting part of a will was on a page with a blank space of two lines at the foot of the page. On the reverse side was written the usual attestation clause, followed by the words, "Witness my hand and seal," and by the signature of the testator. Held, that it was fully executed.

2. Where an alteration was in the handwriting of the scrivener, and the testatrix subsequently republished the will by a codicil, and the subscribing witness testified that the alteration was made at the suggestion of the testatrix before execution, the will is valid.

Appeal from Orphans' Court, Allegheny County.

In the matter of the estate of Nancy A. Morrow. From a decree dismissing the appeal from the register of wills, Frank Lewis Bridge appeals. Affirmed.

The following is the opinion of the court below:

There are two questions involved in this appeal: (1) Whether the fact of the presence of

a blank space of two lines at the foot of the first page of the paper propounded renders it inoperative as a will; and (2) whether there has been sufficient proof of execution-especially in view of an erasure appearing or the face of the original will. The facts are these:

*

"The paper propounded consists of one sheet of foolscap, on the obverse and reverse sides of which are written a will dated 1894 and a codicil dated 1900. The will begins at the top of the obverse page, 'I, Mrs. Nancy A. Morrow, * do make this my last will and testament in the manner following, and continues in consecutive paragraphs to within two lines of the bottom, where there is a blank without signature; but at the top of the reverse page there is an attestation clause, which begins thus: 'Signed, sealed and declared by the above-named Nancy A. Morrow as her last will and testament; · and following this is the signature 'Nancy A. Morrow,' and 'Witnesses, America W. Wallace and I. N. Forney.' Miss Wallace testified that the will was, at the request of Mrs. Morrow, written by Mr. Forney, and each paragraph read to her as written, and again read as a whole, before it was signed, and that Mrs. Morrow signed in their presence; and that they signed as witnesses at her request, and in her presence, on the day of the will's date. Mr. Forney, the scrivener and other witness, is dead, but his signature was proved by ample testimony. There also appears in the face of the will an erasure, and the word 'Pennsylvania' written over it. Miss Wallace said the word 'Allegheny' was erased and 'Pennsylvania' written at the instance of Mrs. Morrow, before execution, so that the name of a legatee should read, "The Reformed Episcopal Church of Pennsylvania,' and Prof. Farrar testified that the paper was in this condition when the codicil was signed. The evidence leaves no room for doubt, and the court accordingly finds, that the paper as now propounded was 'signed, sealed, and declared by the above-named Nancy A. Morrow, as her last will and testament.' The codicil follows on the same page testator's signature, and runs over on the next page. Its execution is admitted. Mrs. Morrow died December 21, 1900.

"The paper propounded here bears on its face in form and contents the evidence of its own integrity. It is written on the same leaf, and in such manner as would commonly be understood as consecutive. It begins with a declaration of purpose, which raises a presumption of intended compliance with statutory requirements in the making of wills, and therefore that dispository and attestation clauses and signature at the end would follow. The testatrix declares that 'I, Mrs. Nancy A. Morrow, * do make this

my last will and testament in the manner following,' and then in fact follow dispositive clauses on the same page. The absence of

attestation clause and signature at the foot of the page naturally leads to inquiry as to the completion of her purpose, and this is found on the reverse side of the leaf. The facts that an attestation clause and signature were written on the same leaf as the declaratory and dispository portion of the will; that they were written at the top of the reverse page, and purport to have been 'signed, sealed, and declared by the above-named Nancy A. Morrow as her last will and testament,' leave no room for doubt that they had reference to, and were the completion of, the will begun on the obverse page of the leaf. "The above-named Nancy A. Morrow' can only be that Nancy A. Morrow whose name appears in the beginning, and whose signature follows the attestation clause as testatrix. Identity of

name implies identity of person. The attestation clause is in the position in which the majority of persons would expect to find it, and would be vain and useless without this antecedent. Who that writes or reads a letter does not involuntarily turn over leaf after leaf, seeking the continuation, until he comes to the signature? How many are there who, from force of habit, or prudence, or economy, or necessity, have written wills on both sides of a leaf of foolscap, and how many titles have passed, without a thought of invalidity? After all, it is the common understanding and practice which must determine questions of this kind. There have been hundreds of wills written in circumstances of necessity beyond professional aid, and in which the application of technical rules would produce hardships not to be endured.

"While leaving a blank at the foot of the first page was imprudent, in that it afforded an opportunity for fraudulent practice, it certainly would not of itself invalidate the will. "The general principle,' said Mr. Justice Clark in Baker's App., 107 Pa. 381, 52 Am. Rep. 478, 'has been clearly established that a will is to be read in such order of pages or paragraphs as the testator manifestly intended, and the coherence and adaptation of the facts clearly require. In writing a will upon pages of foolscap paper, a testator may or may not conform to the order of the consecutive pages of the folio. There is no law which binds him in this respect. He may begin upon the fourth page and conclude upon the first, or he may commence on the first, continue upon the third, and conclude upon the second; but in whatever order of pages it may be written however, it is to be read * * * according to the internal sense, the coherence or adaptation of parts.' It was accordingly held in Ginder v. Farnum, 10 Pa. 98, that where a will is written on several sheets of paper fastened together with a string, proof by two witnesses of the signature of the testator at the end thereof is sufficient. So, in Wikoff's App., 15 Pa. 281, 53 Am. Dec. 597, it was held that a will

written on distinct pieces of paper, in whose arrangement there was even some confusion, is good if they are connected by their internal sense. So, where the name of the legatee was written, not in the body of a codicil, but was indorsed on the envelope in which the codicil had been placed, the two together constitute a valid will. Fosselman v. Elder, 98 Pa. 159. So where, as here, the whole of the disposing portion of a will was written on the first page of a double sheet of foolscap, the second and third pages were blank, and the attestation clause with the signatures of the testator and witnesses were on the fourth page, it was held there was a good execution. In re Goods of Fuller, L. R. Probate (1892) 377. 'An instrument is signed at the end,' said Mr. Justice Leonard in In re Gilman, 38 Barbour, 364, 'when nothing intervenes between the instrument and the subscription. Who shall undertake judicially to say that the subscription shall be one-eighth of an inch, half an inch, two inches, or ten inches from the last line of the instrument? The distance from the last line has not been fixed by statute. The place named by the statute is the end.' The result of the authorities is summed up by Underhill on Wills, § 185, by the statement that the interposition of a blank space between the dispository portion of the will and the testator's signature is never material. The test of integrity of the will is, to use Mr. Justice Clark's phrase, the 'internal sense'; and as has been shown, there is enough on the face of this will to stand the test.

"2. It was said in Wikoff's App., supra, and repeated in Linnard's App., 93 Pa. 313, 39 Am. Rep. 753, that interlineations made in testatrix's handwriting are presumed to have been made at or before the time which the will was prepared for the final act. Liberality of construction in this respect is shown in the extension of the presumption to interlineations in pencil in the later case of Tomlinson's Est., 133 Pa. 245, 19 Atl. 482, 19 Am. St. Rep. 637, and there is just as much reason for its application where the whole body of the will is in the scrivener's handwriting. It was probably for this reason that the scrivener's testimony was admitted without question in Baker's App. This testatrix having herself trusted the scrivener to write her will, it would be strange, indeed, if those claiming under her could discredit her judgment, and shift the burden of proof on proponents by mere assumption. This presumption is strengthened, if not made conclusive, by the republication of the will long after the scrivener's death; for, being in the scrivener's handwriting, the will must have been in the condition which it now is, with the erasure and superscription appearing on its face, when the republication took place, and therefore with testatrix's knowledge and approbation. The presumption was further strengthened by the direct testimony of Professor Farrar that the will was in the same