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ces, regardless of notice to stop, required to which the city thereupon did, and reimbursed anticipate that a car might strike his horse, her for her expenditures. Thereafter she exe
cuted a deed to the city for the square, with and hence to keep him clear of the track
the condition that within 10 years it. should when discharging his load. It was yet light, cause the square to be improved as a public and the motorman had a clear, unobstruct. square. This condition was not fulfilled. Held, ed view of the horse and wagon for at least
in ejectment by the heirs of the owner, that the
deed and conditions therein were of no effect, three or four squares. The plaintiff had a
as the transaction was completed when the right to assume that the motorman would be dedication was accepted by the city. on the lookout for objects in front of him, as
Appeal from Court of Common Pleas, Alleit was his duty to do, and have his car un.
gheny County. der proper control so that he could stop it to
Action by Mary O'H. Spring and others prevent a collision with a person or an object
against the city of Pittsburg. Verdict for properly in use of the track. Under these
defendant, and plaintiffs appeal. Affirmed. circumstances, the plaintiff was justified in using the car tracks temporarily without in. Edwin W. Smith, Charles S. Crawford, curring the charge of negligence. A con J. H. Reed, George E. Shaw, and J. H. Beal, trary view of the right of the plaintiff would for appellants. W. A. Blakely and T. D. make him a trespasser, and deny to the pub Carnahan, for appellee. lic a right which it indubitably possesses in common with a street railway company. POTTER, J. On June 9, 1873, Mrs. Eliz
A street car company has not the exclu abeth F. Denny presented a petition to the sive right to the use of a street on which it common council of the city of Pittsburg. operates its road, nor has it such right to its In this petition she set forth that the comown tracks. The streets of the municipali- missioners, who were appointed by the court ties of the state are for the use of the travel of quarter sessions of Allegheny county, uning public, and the right of the street railway der the act of assembly of June 16, 1836, company to use them is in common with the to lay out and report a plan of the territory public. The street railway company and the adjacent to the then city of Pittsburg, and public are alike liable for the negligent use known as the city district, did, in their of the street; each must exercise its rights plan and report made to the court, reserve thereon with care and a due regard for the out of her land a block of ground between rights of the other. While, for reasons which Twenty-Ninth and Tbirtieth streets, to be are apparent, a street car company must have appropriated and used as a public square a superior right to use its tracks in the opera under the name of "Snyder Square.” This tion of its road, yet this does not forbid their plan and report were finally approved on use by the public, but only requires that in October 19, 1843. Mrs. Denny further states their use the right of the public, under cer in her petition that she was satisfied, and tain circumstances, shall be subordinate to consented at the time, to the said appropriathat of the railway company. By placing tion as a free gift to her native city, for the himself or his borse and vebicle on the tracks use, benefit, and comfort of its inhabitants, of a street railway for any legitimate use of but that this consent was given on the conthe street, the traveler does not become a dition that the public square should be actrespasser, and will not become such unless cepted by the city and appropriately cared he unreasonably and unnecessarily obstructs for as such. But for a period of some 30 the company in the use of the tracks. These years the city had not assumed possession principles are well settled and have been and control of said square, but had permit. recognized in the decisions of this court, ted it to remain in her possession and conamong them being the very recent case of trol. During that period she had paid to the Fenner v. Wilkes-Barre, etc., Traction Con city in taxes and for the cost of street impany, 202 Pa, 365, 51 Atl. 1034.
provements a sum aggregating $14,693.45. The assignments of error are overruled, and She therefore desired the city to say defithe judgment is affirmed.
nitely whether or not it would accept this gift of land proffered so long before, and
assume the obligation of putting and keep(204 Pa. 530)
ing it in good shape and condition. This SPRING et al. v. CITY OF PITTSBURG. petition was referred to the committee on (Supreme Court of Pennsylvania. Jan. 5,
city property, who afterwards reported that 1903.)
at a conference with the agent of Mrs. DenDEDICATION-PUBLIC SQUARE-ACCEPTANCE.
ny terms were agreed upon as contained in 1. Commissioners appointed by the court laid
a preamble and resolution, whose adoption out lands adjacent to a city in streets and they recommended, and which was duly blocks, one of which was shown on the plan filed as a public square.
passed by both branches of city councils
The owner thereof agreed that it should be so used if the city
upon June 30, 1873. The preamble recites would accept the square and properly care for
the facts as set forth in the petition of Mrs. it. For 30 years the city allowed it to remain Denny, and recognizes her desire that the in the owner's control, who paid taxes for a
city take possession of said square and aplarge amount, and at the end of that period requested the city to take the square and repay
propriate it to the uses for which it was her for the taxes and street improvements,
dedicated. It also refers to her desire to
be reimbursed for the payments made by by the city solicitor, the duty performed in her for taxes and street improvements dur receiving the deed would be purely minising the period which had elapsed since the terial and administrative. The power of city date of the original dedication. By the councils to accept the dedication of land for terms of the resolution, the city accepts and public purposes, and to fix the conditions assumes possession of said Snyder Square of acceptance, was not delegated to the city for the uses and purposes for which it was controller. Mrs. Denny was bound to know laid out and dedicated, and the controller this, for the rule is well established that inis directed to issue a certificate for a war dividuals as well as courts must take notice rant in favor of Elizabeth F. Denny for of the extent of the authority conferred by the sum of $14,693.45.
law upon a person acting in an official capacThe effect of this transaction was to place ity. the city and Mrs. Denny in the same posi The trial judge held that the deed was of tion as though the ground had been accepted no effect in this case. As stated by him in at the date of the original dedication, and the charge, the transaction, in his view, was had been held for public use during the in completed when the dedication was accepted tervening time. It was only upon this basis by councils. He further points out that nelthat she could rightfully ask to be reim ther in preamble nor resolution is there any bursed for the amount paid out by her for mention of these conditions, or of any time taxes and street improvements.
at which they are to be performed, and that It might well be held that this was all the controller would have no power to bind in affirmance of the original intent to dedi. the city or to accept the deed with such cate at the time of the confirmation of the conditions. Under this view, there was nothcity district plan. Certainly if there had ing left in the case to support the claim of been an acceptance at that time by the city, the plaintiffs that the title bad reverted to Mrs. Denny would have been precluded from them. It does not follow, however, that the afterwards asserting any right incompatible city has any right to disregard the purposes with the purpose of the dedication. Be that for which this land was dedicated to public as it may, whether the petition to councils use. If the authorities are derelict in the in 1873 be considered as a new dedication, performance of their duty in this respect, or simply as an affirmance of the prior offer there are appropriate remedies which may to dedicate, we think that the ternis and be followed. It is enough for the purposes conditions of the acceptance are such, and of this case to say that the conclusion reachsuch only, as are set out in the resolution ed by the court below was right. of the city councils. The dedication was The specifications of error are overruled, completed when it was accepted upon behalf and the judgment is now affirmed. of the public by the city councils. No particular formality is required to constitute a dedication. Any act or declaration which
(204 Pa. 509) clearly expresses an intent to dedicate will HERRON V. CITY OF PITTSBURG. amount to a dedication if accepted by or on
(Supreme Court of Pennsylvania. Jan. 5, behalf of the public.
1903.) Nearly one year after this action by the
MUNICIPAL CORPORATIONS-NEGLIGENCEcity councils accepting the dedication and LIVE WIRE-NOTICE TO CITY-CONassuming possession of Snyder Square Mrs.
TRIBUTORY NEGLIGENCE. Denny executed a deed to the city of Pitts.
1. Iu an action to recover for injuries sus. burg for the said square, containing a con
tained by a boy from contact with a live tele.
phone wire used in the police service of a city, dition that within the period of 10 years and which had fallen and had become charged the city should cause the said square to be
from a feed wire of the electric railway, the inclosed and improved as a public square.
case is for the jury where the break was
known to the police within an hour after it The contention of the plaintiffs is that all
occurred, and it was also known that the wire the conditions of this deed are binding up was in close proximity to other wires carrying on the city, and by reason of a breach of
dangerous currents of electricity. the conditions the land has reverted to them.
2. In an action for injuries received by con
tact with a live telephone wire used by the This deed was delivered to the city control police department, evidence of the ordinance ler by the agent of Mrs. Denny, when he and of rules of the police department as to the received the money appropriated to her, un
inspection of wires owned by the city is admis
sible. der the terms of the resolution of city
3. Where a father, after leaving his home to councils, in reimbursement of the payment go to work, saw a telephone wire on the paveof taxes and street improvements. Why the
ment, and avoided it, it is a question for the deed was given to the controller does not
jury, in an action for injuries to his son, who
passed the same place on his way to school appear. It would
that it ought to
shortly after, whether the father was guilty of have gone to the city solicitor, as the duty contributory negligence in not warning the son of examination and approving the deed
of the danger of contact with it. would require technical knowledge of con Appeal from Court of Common Pleas, Alveyancing, and therefore it should have been legheny County; Brown, Judge. performed by the law officer of the city. Action by Vincent Herron and Hugh HerBut, whether accepted by the controller or ron against the city of Pittsburg. Judgment
for plaintiffs, and defendant appeals. Af. cise of proper care, under the circumstances, firmed.
would have discovered, or ought to have disPlaintiff was injured by coming in contact
covered, its dangerous condition on the highwith a police call wire which had broken and
way-then the city was guilty of want of fallen to the street. The call wire was of
care, and is responsible for the damages, at itself harmless, but after falling it became
least to the little boy, and perhaps to the charged with a heavy current of electricity father; but that is further along. from a feed wire of an electric railway. It
"Not only was it the duty of the city to appeared that about 8 o'clock on the morning
exercise a high degree of care in the situaof the accident the father of the plaintiff on
tion, by ordinance (and entirely outside of his way to work saw the wire and carefully
the ordinance that same duty remained), but avoided it. He did not return to his home,
in the exercise of that care it had methods which was a short way off, to warn his son.
and means, and it was bound to secure the The boy was injured in the afternoon on his
reasonable method and means by which the return from school. There was evidence
proper inspection could be made. It had inthat the police officials knew of the breakspectors, or it was within the power of the in the wire within an hour after it occurred.
city to have inspectors, to make proper inThe court admitted, under objection and ex
spection at proper times, having due regard ception, an ordinance of the city and rules
to the locality and situation. That is, if a of the police department relating to the in
dangerous condition might arise in a section spection and use of the city wires.
of the town that was very slightly populated, The court charged in part as follows:
where perhaps few passengers would go by "While the call wire was harmless in itself, during the day, a less degree of care, in a yet by its proximate relations to highly or
sense as to time perhaps, would be required heavily charged wires about it, or in close
there than in a populous center, where it proximity to it, it might, by contact with
might be that millmen or other persons in such wires, become a source of great dan large numbers frequently passed (as in this ger. Against such danger the city was bound
case) a point of danger." to guard by a high degree of care. This is
Defendant presented these points: the rule of care, clearly stated, by the Su
“(1) That under the pleadings and evidence preme Court in Fitzgerald v. Edison Electric
in this case the verdict should be for the Illuminating Company, 200 Pa. 540 (50 Atl.
defendant. Answer. Refused. It is for the 161, 86 Am. St. Rep. 732]. Mr. Justice jury to say whether it is or not. Mitchell, delivering the opinion, says: “Wire
"Notice to a police or lineman employed charged with an electric current may be harm- by the city of Pittsburg that a telephone wire less, or they may be in the highest degree
is down upon the street of the city of Pittsdangerous. The difference in this respect is
burg is not notice to the city. Answer. Renot apparent to the ordinary observation, and
fused, under the evidence and testimony in
this case, the public, therefore, ile presumed to know that danger may be present, are not
“Before the jury can find the defendant bound to know its degree in any particular guilty of negligence, it must be satisfied by The company, however in this case
the weight of the evidence that its negligence the city), which uses such a dangerous agent,
was the proximate cause of the injury. An. is bound not only to know the extent of the
swer. Affirmed, and the proximate cause of danger, but to use the very highest degree
the injury, as we instruct you, would be the of care practicable to avoid injury to every
failure of the city, after the lapse of a reaone who may be lawfully in proximity to its
sonable time, to remedy that which it was wires, and liable to come, accidentally or oth
its duty to remedy in order to prevent injury erwise, in contact with them. The duty is
to persons passing along the sidewalk." not only to make the wire safe, but to keep
Verdict and judgment for Vincent Herron it so by constant oversight and repair. The
for $6,364, and for Hugh Herron for $864. case, in this aspect, is analogous to an action W. A. Blakeley and Thomas D. Carnaban, against a municipal corporation for an injury for appellant. Joseph Howley and W. A. from a defective highway. The plaintiff is Hudson, for appellee. not bound to show direct and express notice of the defect (to the city in this case), but MITCHELL, J. It is the duty of all parmay show that it has existed for such a ties using a highly dangerous agent to use period that it ought to have been known to care commensurate with the danger, in order the authorities (in this case the city of Pitts to prevent injury to persons or property ex. burg).'
posed to its influence. Fitzgerald v. Edison “This raises a question for the jury, viz., Electric Illuminating Co., 200 Pa. 540, 50 Atl. as to whether the city, by the exercise of 161, 86 Am. St. Rep. 732. Cities are not ex proper care, under all circumstances, ought cepted from the rule, and the fact that the to have known of this highly dangerous con agent is used or supervised under the police dition upon the pavement. If it ought to power does not excuse negligence in such have known; if there was such a reasonable
Mooney V. Luzerne Borough, 186 Pa. time, or, rather, if such a reasonable time 161, 40 Atl. 311, 40 L. R. A. 811. The cases elapsed, within which the city, by the exer deciding that municipal corporations are not
liable for errors of judgment or discretion a blank space of two lines at the foot of the rest on entirely different principles.
first page of the paper propounded renders The wire in this case was a police call it inoperative as a will; and (2) whether there wire, and broke as early as 8 o'clock in the has been sufficient proof of execution-esmorning. The fact of the break was known pecially in view of an erasure appearing or to the police officials presumably at or near the face of the original will. The facts are that time, and according to the evidence cer these: tainly as early as 9 o'clock. The wire was “The paper propounded consists of one very lightly charged, and not in itself dan sheet of foolscap, on the obverse and reverse gerous, but it was a naked wire, and strung sides of which are written a will dated 1894 on poles in close proximity to other wires, and a codicil dated 1900. The will begins at some of which carried strong and dangerous the top of the obverse page, 'I, Mrs. Nancy currents of electricity. The fact of the A. Morrow,
do make this my last break, therefore, was notice that it might be will and testament in the manner following, come dangerous, and imposed the duty of
and continues in consecutive paraexamination. Whether that duty was prop graphs to within two lines of the bottom, erly met under all the circumstances, the where there is a blank without signature; lapse of time, the condition and population but at the top of the reverse page there is an of the neighborhood, the urgency of the pos attestation clause, which begins thus: “Signsible danger, etc., was a question for the ed, sealed and declared by the above-named jury.
Nancy A. Morrow as her last will and testaThe evidence as to the ordinance, policement;
and following this is the regulations, etc., though not important, was signature 'Nancy A. Morrow,' and 'Witnesses, not incompetent. It merely tended to make America W. Wallace and I. N. Forney. Miss more clear and definite the responsibility for Wallace testified that the will was, at the redue care which existed outside of them. quest of Mrs. Morrow, written by Mr. Forney,
The father saw the wire on the pavement and each paragraph read to her as written, as he went to work in the morning, and and again read as a whole, before it was knew that his son would shortly pass the signed, and that Mrs. Morrow signed in their same place on his way to school. He testi
presence; and that they signed as witnesses fied that he avoided stepping on the wire, at her request, and in her presence, on the though he did not know whether it was dan day of the will's date. Mr. Forney, the gerous or not. This was the act of a prudent scrivener and other witness, is dead, but his man. Whether he ought further to have re
signature was proved by ample testimony. turned to his house, which was close at Thére also appears in the face of the will hand, to warn his son, was not so clear a erasure, and the word 'Pennsylvania' duty that the court could declare it as a mat written over it. Miss Wallace said the word ter of law. It was a question of reasonable 'Allegheny' was erased and 'Pennsylvania' prudence or contributory negligence which
written at the instance of Mrs. Morrow, bewas properly left to the jury.
fore execution, so that the name of a legaJudgment affirmed.
tee should read, "The Reformed Episcopal
Church of Pennsylvania,' and Prof. Farrar (204 Pa. 479)
testified that the paper was in this condition In re MORROW'S ESTATE. (No. 1.) when the codicil was signed. The evidence (Supreme Court of Pennsylvania. Jan. 5,
leares no room for doubt, and the court ac1903.)
cordingly finds, that the paper as now proWILL-EXECUTION-VALIDITY-ALTERATION.
pounded was 'signed, sealed, and declared by 1. All of the granting part of a will was on
the above-named Nancy A. Morrow, as her a page with a blank space of two lines at the last will and testament.' The codicil follows foot of the page. On the reverse side was
on the same page testator's signature, and written the usual attestation clause, followed by the words, “Witness my hand and seal,"
runs over on the next page. Its execution is and by the signature of the testator. Held, that admitted. Mrs. Morrow died December 21, it was fully executed.
1900. 2. Where an alteration was in the handwriting of the scrivener, and the testatrix subse
“The paper propounded here bears on its quently republished the will by a codicil, and face in form and contents the evidence of the subscribing witness testified that the alter its own integrity. It is written on the same ation was made at the suggestion of the testa
leaf, and in such manner as would commonly trix before execution, the will is valid.
be understood as consecutive. It begins with Appeal from Orphans' Court, Allegheny
a declaration of purpose, which raises a preCounty.
sumption of intended compliance with statuIn the matter of the estate of Nancy A.
tory requirements in the making of wills, and Morrow. From a decree dismissing the ap
therefore that dispository and attestation peal from the register of wills, Frank Lewis
clauses and signature at the end would fol. Bridge appeals. Affirmed.
low. The testatrix declares that 'I, Mrs. The following is the opinion of the court Nancy A. Morrow,
• do make this below:
my last will and testament in the manner There are two questions involved in this ap following,' and then in fact follow dispositive peal: (1) Whether the fact of the presence of clauses on the same page. The absence of
attestation clause and signature at the foot written on distinct pieces of paper, in whose of the page naturally leads to inquiry as arrangement there was even some confusion, to the completion of her purpose, and this is good if they are connected by their interis found on the reverse side of the leaf. nal sense. So, where the name of the legatee The facts that an attestation clause and was written, not in the body of a codicil, but signature were written on the same leaf as was indorsed on the envelope in which the the declaratory and dispository portion of codicil had been placed, the two together conthe will; that they were written at the top stitute a valid will. Fosselman v. Elder, 98 of the reverse page, and purport to have Pa. 159. So where, as here, the whole of the been 'signed, sealed, and declared by the disposing portion of a will was written on above-named Nancy A. Morrow as her last the first page of a double sheet of foolscap, will and testament,' leave no room for doubt the second and third pages were blank, and that they had reference to, and were the the attestation clause with the signatures of completion of, the will begun on the ob the testator and witnesses were on the fourth verse page of the leaf. 'The above-named page, it was held there was a good execuNancy A. Morrow' can only be that Nancy tion. In re Goods of Fuller, L. R. Probate A. Morrow whose name appears in the be (1892) 377. 'An instrument is signed at the ginning, and whose signature follows the end,' said Mr. Justice Leonard in In re Gilattestation clause as testatrix. Identity of man, 38 Barbour, 364, 'when nothing intername implies identity of person. The at venes between the instrument and the subtestation clause is in the position in which scription. Who shall undertake judicially to the majority of persons would expect to find say that the subscription shall be one-eighth it, and would be vain and useless without of an inch, half an inch, two inches, or ten this antecedent. Who that writes or reads inches from the last line of the instrument? a letter does not involuntarily turn over The distance from the last line has not been leaf after leaf, seeking the continuation, un fixed by statute. The place named by the til he comes to the signature? How many
statute is the end.' The result of the auare there who, from force of habit, or pru thorities is summed up by Underhill on Wills, dence, or economy, or necessity, have writ $ 185, by the statement that the interposition ten wills on both sides of a leaf of foolscap, of a blank space between the dispository porand how many titles have passed, without a tion of the will and the testator's signature thought of invalidity? After all, it is the com is never material. The test of integrity of mon understanding and practice which must the will is, to use Mr. Justice Clark's phrase, determine questions of this kind. There the 'internal sense'; and as has been shown, have been hundreds of wills written in cir there is enough on the face of this will to cumstances of necessity beyond professional stand the test. aid, and in which the application of technical "2. It was said in Wikoff's Apr., supra, rules would produce hardships not to be and repeated in Linnard's App., 93 Pa. 313, 39 endured.
Am. Rep. 753, that interlineations made in "While leaving a blank at the foot of the testatrix's handwriting are presumed to have first page was imprudent, in that it afforded been made at or before the time which the an opportunity for fraudulent practice, it cer will was prepared for the final act. Libertainly would not of itself invalidate the will. ality of construction in this respect is shown 'The general principle,' said Mr. Justice in the extension of the presumption to interClark in Baker's App., 107 Pa. 381, 52 Am. lineations in pencil in the later case of Tom. Rep. 478, 'has been clearly established that linson's Est., 133 Pa. 245, 19 Atl. 482, 19 Am. a will is to be read in such order of pages or St. Rep. 637, and there is just as much reaparagraphs as the testator manifestly intend son for its application where the whole body ed, and the coherence and adaptation of the of the will is in the scrivener's bandwriting. facts clearly require. In writing a will upon It was probably for this reason that the scrive. pages of foolscap paper, a testator may or ner's testimony was admitted without quesmay not conform to the order of the con tion in Baker's App. This testatrix having secutive pages of the folio. There is no law herself trusted the scrivener to write her which binds him in this respect. He may will, it would be strange, indeed, if those begin upon the fourth page and conclude claiming under her could discredit her judgupon the first, or he may commence on the ment, and shift the burden of proof on profirst, continue upon the third, and conclude ponents by mere assumption. This presumpupon the second; but in whatever order of tion is strengthened, if not made conclusive, pages it may be written however, it is to be by the republication of the will long after the read
according to the internal scrivener's death; for, being in the scrivesense, the coherence or adaptation of parts.' ner's handwriting, the will must have been in It was accordingly held in Ginder v. Far the condition which it now is, with the eranum, 10 Pa. 98, that where a will is written sure and superscription appearing on its face, on several sheets of paper fastened together when the republication took place, and therewith a string, proof by two witnesses of the fore with testatrix's knowledge and apsignature of the testator at the end thereof probation. The presumption was further is sufficient. So, in Wikoff's App., 15 Pa. strengthened by the direct testimony of Pro281, 53 Am. Dec. 597, it was held that a will fessor Farrar that the will was in the same