judgment would have to be reversed for the misconduct of a juror following an improper remark and a misstatement of the law by the trial judge during the argument on the motion for a nonsuit. Counsel for the defendant stated in that argument that the case was one of a railroad so constructed across a public road that there was no point where a traveler could stop, look, and listen, and, as he avers, before he could follow this with the statement that there was such a point beyond the mill siding, he was interrupted by the court with the remark that, if that were so, "the railroad ought certainly to have had somebody there to give warning." This was followed by applause from the audience in the courtroom, in which one of the jurors impaneled in the case joined by clapping his hands. A motion was promptly made by counsel for the defendant for the withdrawal of a juror and the continuance of the case until the next term, which was refused. On the instant the court should, of its own motion, have taken notice of the misconduct of the juror and, after discharging him from further service and continuing the case, imposed a proper penalty upon him. This was due to the orderly administration of justice and to the court's own dignity. Neither the trial judge's "knowledge of the offending jury man" nor his apology can be regarded as an excuse for the court's failure to discharge its duty, and, in neglecting to do so, the case went on, in the face of defendant's protest, before at least one juror who had shown himself unfit to try it. In view of his open exhibition of feeling and his applauding concurrence in the incorrect statement of the white linen. One in the very nature of (223 Pa. 50) KEIFNER v. PITTSBURG, C., C. & ST. L. (Supreme Court of Pennsylvania. Jan. 4, 1909.) A person who has purchased a ticket for his transportation and is at the station awaiting arrival of the train is a passenger, and entitled to the company's protection as such. Cent. Dig. 88 984, 987; Dec. Dig. § 247.* [Ed. Note.-For other cases, see Carriers, For other definitions, see Words and Phrases, vol. 6, pp. 5219, 5220; vol. 8, p. 7748.] 2. CARRIERS (§ 286*)-CARRIAGE OF PASSENGERS-INTERVENING TRACKS AT STATION. It is the duty of a carrier to provide a reasonably safe passage over tracks intervening between a station and a train, and not to permit locomotives to pass over them while passengers are crossing. [Ed. Note. For other cases, see Carriers, Cent. Dig. § 1142; Dec. Dig. § 286.*] 3. CARRIERS (§ 327*)-CARRIAGE OF PASSEN GERS-INTERVENING TRACKS AT STATION. Where a passenger is required to cross a track to reach his train from the station, he is endangered by permitting a train to pass on entitled to assume that his safety will not be the intervening track, and his duty to stop, look, and listen is not the same as that of a person about to cross a public crossing. Cent. Dig. § 1365; Dec. Dig. § 327.*] In an action for the death of a passenger, who was struck by a train while attempting to cross an intervening track upon the planked way provided for the use of passengers, to reach his train from the station, whether he was guilty of contributory negligence held for the jury. [Ed. Note. For other cases, see Carriers, Cent. Dig. §. 1365; Dec. Dig. § 347.*] Appeal from Court of Common Pleas, Allegheny County. Action by Maria Keifner, in her own right and for the use of John Keifner, and others, against the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for defendant non obstante veredicto, court that it was the duty of the defendant to have had somebody at the crossing to give warning, it was the appellant's clear right to ask that he be declared disqualified to further sit in judgment between it and the plaintiff, for the case could not safely be thereafter committed to him by any admonition of the trial judge in his charge that it would have to be considered and disposed of by the jury "without any reference to that little incident" and the expression of confidence by the court that the offending juror would so dispose of it. The impression made upon the mind of the juror by the remark of the judge was manifestly against the defendant, and not likely to be changed by anything submitted by it in its defense. Those of us who have had experience in jury trials know that impressions once made are not easily erased, in spite of all the caution jurors may receive from the court. Shaeffer v. Kreitzer, 6 Bin. 430. "It is one MESTREZAT, J. We are all of opinion thing to prevent the entry of an influence that the court below erred in entering judginto the mind, and quite another to dislodgement for the defendant non obstante vereit. As well might one attempt to brush off dicto. plaintiff appeals. Reversed. Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ. W. C. Stillwagon, and Pier Dannals, for appellant. Wm. S. Dalzell, for appellee. with the hand a stain of ink from a piece of The defendant company's station at Car negie is on the south side of its four tracks | contributory negligence under the facts of of railroad which run east and west and the case. parallel each other at that place. The track This case is ruled by the doctrine announcnext the station is the east-bound passenger, ed in Harper v. Pittsburg, etc., Railroad the next track, 15 feet distant, is the west- Company, 219 Pa. 368, 68 Atl. 831, and Bebound passenger track, and the two tracks secker v. Delaware, etc., Railroad Company, beyond are for freight traffic. The station 220 Pa. 507, 69 Atl. 1039, 123 Am. St. Rep. platform extends to the rail of the east- 714. There, as here, the only question prebound track, is 8 or 9 feet wide, and about sented for the consideration of this court 150 feet long. Three or four steps lead from was whether the plaintiff's negligence was so the door of the station down to the platform. clear that the court was justified in declarThere is a track platform between the west- ing it as matter of law. The deceased havbound and the east-bound tracks from which ing purchased a ticket for his transportapassengers enter and on which they alight tion, and being in the defendant's station from the west-bound train. At this point the awaiting the arrival of the train, was a passpace between the rails of the east-bound senger, and entitled to the company's protectrack is planked for a distance of about 30 tion until he entered the train. It was therefeet. This is the way provided by the com- fore the duty of the defendant company to pany for passengers to enter a west-bound use care in providing a safe way or approach train from the station and for passengers to the platform from which its west-bound alighting on the platform between the west- train could be entered. His right to a safe bound and east-bound tracks to enter the sta-transit over the east-bound track is the same tion. There is a gong in the station, operated by an electric button in an adjoining telegraph tower, which gives notice of trains approaching the station. On the morning of in attempting to reach his train from the station as a passenger who, having alighted from a train, attempts to cross intervening tracks to enter the station. There is a positive duty imposed upon the company in such cases to provide a reasonably safe passage over intervening tracks, and not to permit locomotives or trains to pass over them 7:05. While he was at the window purchas-ligence in the performance of this duty will while passengers are on the crossing. Neg December 3, 1901, John Keifner, appellant's husband, went to the station at Carnegie to take a west-bound train for Iffley, a station three miles west of Carnegie. It was due at subject the company to liability for any resulting injury. The deceased had a right to assume that his safety would not be endangered by permitting a train to pass on the east-bound track while he was crossing to enter the west-bound train, and he could rely upon the ing his ticket, the gong sounded giving notice of the approach of the west-bound train, and the ticket agent immediately announced to Keifner and the other 12 or 15 passengers intending to take that train, "Train going west." Keifner and the other passengers started at once on the announcement of the agent for the platform from which the west-company to keep the track clear. Harper v. bound train was to be entered. They passed through the door leading out of the station, and down the steps to the station platform. Keifner was in advance of the other passengers, and as he was about stepping from the planks between the rails of the east-bound track to the track platform from which he was to enter the west-bound train, he was struck and killed by an express train going east on the east-bound track, running from 25 to 30 miles an hour. This train was 27 minutes late. The ticket agent testified that from the time the gong sounded it requires about a minute and a half to two minutes for the train to reach the platform. On the trial of the cause, the court submitted to the jury the negligence of the defendant company and also the contributory negligence of the deceased. The jury returned a verdict for the plaintiff, but the court entered judgment for the defendant non obstante veredicto, citing as authority for its action the cases of Carroll v. Pennsylvania Railroad Company, 12 Wkly. Notes Cas. 348, and Irey v. Pennsylvania Railroad Company, 132 Pa. 563, 19 Atl. 341. The learned judge held that Pittsburg, etc., Railroad Company, 219 Pa. 368, 68 Atl. 831; Besecker v. Delaware, etc., Railroad Company, 220 Pa. 507, 69 Atl. 1039, 123 Am. St. Rep. 714. His duty therefore to stop, look, and listen was not the same as a footman about to cross at a public crossing. Pennsylvania Railroad Co. v. White, 88 Pa. 327; Betts v. Lehigh Valley R. R. Co., 191 Pa. 575, 43 Atl. 362, 45 L. R. A. 261; 6 Cyc. 608. While he was required to exercise prudence and care in crossing the east-bound track, it was such care as the circumstances demanded. Had he been attempting to cross a railroad track at a public crossing, the failure to stop, look, and listen would have been negligence to be declared by the court. There the railroad company has the right to run its trains at any time it sees proper, and persons who attempt to cross the track are required to look out for approaching trains. Under those circumstances the company does not invite the public to cross its tracks for any purpose, nor if its employés in charge of a train exercise care in approaching a crossing is it under obligation to protect the public from injury while crossing the tracks; cross in front of it. In other words, if a reasonably prudent man would have anticipated danger in crossing from the conditions as they existed there, it was negligence in the deceased to attempt to make the crossing. These were questions for the jury. effect the company, by providing this means the crossing, he should not have attempted to of access to its trains, makes the crossing a part of its station so far as its duty to protect the passenger is concerned. The public have no right to cross it except when they, as passengers, intend to take passage on the company's west-bound train. Here the way used by the deceased was specially provided The cases relied upon by the court below by the company for crossing its tracks. have no application to the facts of this case. Plank 30 feet in length had been laid be- In the Carroll Case the plaintiff when injurtween the rails of the east-bound track so as ed was crossing the railroad "at the Queen to make a proper and safe way for passen- street crossing, which adjoins the depot on gers to walk from the station to the track the west." He stepped directly in front of platform of the west-bound track. This was the locomotive, which, if he had used his the only way provided by the defendant sense of sight or hearing, he would have company for passengers to reach the west-known was approaching. His duty was to bound train, and therefore every passenger stop, look, and listen, which manifestly, if he who had purchased a ticket at the station for that train was invited by the company to cross the track by this way to reach the train. had done, he would not have been struck by the locomotive. In Irey v. Penna. Railroad Company, 132 Pa. 563, 19 Atl. 341, the deceased attempted to reach his train by crossing the tracks at a different place than that provided by the company. A nonsuit was entered, which was sustained by this court in a per curiam opinion. In the opinion of the trial judge it is said (page 565 of 132 Pa.): "If the accident had happened while the deceased was walking upon the planked way leading from the station to the platform on the opposite side, the question of contributory negligence would have to be decided by the jury, and not by the court; but, unfortunately for the plaintiff, this was not the case. He left a place of comparative safety, and without any invitation, actual or implied, he attempted to reach his train before it was ready to receive him, and by a way much more dangerous than the one provided for him by the company." Keifner was killed when he, by the implied invitation of the company, was walking upon the planked way prepared by it for the use of passengers intending to board a train from the platform on the opposite side of the east-bound track. The announcement of the arrival of the west-bound train by the ticket agent was a direction to the passengers in the station to proceed to the train. All the passengers in the station so treated the announcement and acted upon it accordingly. They had a right to assume that the approach to the train was reasonably safe, and they were not bound to anticipate that their safety would be endangered by the company permitting a train to be run over the crossing on the east-bound track at this time. They could rely upon the performance of the company's duty not to permit a train to pass on that track. In fact there was no train due on the eastbound track at that time, and Keifner's death was caused by a train running 27 minutes late. He was not struck when he stepped upon the track, but he was in the act of stepping from the track when he was hit by the locomotive. He manifestly thought that he could cross the track in safety, and there is nothing in the evidence to show the contrary. The other passengers saw this train and avoided a collision, but they were in the rear of the deceased and had an opportunity to do what he did not have. Of course, if he had stopped and waited on the platform to see whether the east-bound track was clear or not, he would not have been run down by the train; but, in the absence of evidence showing that he saw the train ap-| proaching and had reason to believe that his safety would be endangered, he might rely upon the presumption that the company would do its duty, and proceed to the train as he was directed by the company's agent. The care required of him was such as the circumstances demanded, and whether he exercised that care or not a jury must determine. If, when the deceased arrived on the station platform at the east-bound track, the train was approaching at a high rate of speed, and so near the crossing that he prior indorser, an affidavit of defense, not denyshould have known that it intended to passing the making and indorsing of the note, but The assignment of error is sustained, the judgment of the court below is reversed, and judgment is now directed to be entered on the verdict for the plaintiff. BURNS v. ARMSTRONG. (223 Pa. 66) (Supreme Court of Pennsylvania. Jan. 4, 1909.) 1. APPEAL AND ERROR (§ 884*)—ESTOPPEL. sufficient affidavit of defense has been discharg Where a rule for judgment for want of a ed, and plaintiff filed an amended statement of demand, and a second rule for judgment is taken to the affidavit of defense then filed voluntarily, defendant cannot complain that the court has no power to entertain the second rule. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3612-3616; Dec. Dig. § 884.*] 2. BILLS AND NOTES (§ 474*)-ACTION AGAINST INDORSER-AFFIDAVIT OF DEFENSE. Where the last indorser on a note sues the [Ed. Note. For other cases, see Bills and Notes, Dec. Dig. § 474.*] Appeal from Court of Common Pleas, Allegheny County. that the copy attached is a correct copy, without | prior to May 1, 1907; but the defendant does showing in what respect it is incorrect, and not allege that he believes such information, not denying that plaintiff was the holder of the note, or that it was presented at maturity at and that he expects to prove it. He denies the place named in the note for payment, and that the note in suit was delivered to said not denying that notice of dishonor was receiv-nk in payment of the prior note. He, 'on ed, but merely alleging that it was not sent by information received,' denies that Exhibit A plaintiff, is insufficient. is a true and correct copy of the note, upon which suit is brought; but he does not state wherein said copy is incorrect, nor that he believes the information, and expects to prove it. He, 'on information received,' denies that the plaintiff had the note in suit protested; and he denies that the plaintiff, as junior indorser, gave notice of protest or dishonor to defendant. But the defendant does not deny that notice of protest was sent to him and to the other indorsers. Thereupon the plaintiff entered a second rule for judgment for want of a sufficient affidavit of defense. The defendant now takes the position that the court has no power to entertain the second rule. But we cannot agree with him. The purpose of the practice is to avoid delay, by having the court upon a rule determine what it must determine upon trial, whether or not, assuming all that is alleged in the defense as true, the plaintiff is entitled to binding instructions. The reason for the practice applies to a case where an amended statement is filed, and an affidavit of defense thereto is filed, equally as strong as it does in the first instance. It will be observed that the defendant voluntarily filed his affidavit Actions by T. Burns against John H. Armstrong, against A. I. Cooke, against C. A. Muehlbronner, and against Thomas McGovern. From orders making absolute rules for judgment, defendants appeal. Affirmed. Swearingen, P. J., filed the following opinion in the court of common pleas: "In this case, after an affidavit of defense was filed, a rule for judgment was taken, which upon argument, without objection of plaintiff's counsel, was discharged. Thereupon the plaintiff, by leave of court, filed an amended statement of demand. In this amended statement, the plaintiff declared upon a promissory note, of which a copy was attached, marked 'A.' The following is a copy of the note: "Pittsburg, Pa., May 1, 1907. $6,000.00. Four months after date I promise to pay to the order of James E. Glass, six thousand dollars, at the Treasury Trust Company, Pittsburg, Pa., without defalcation, for value received. James E. Glass.' "Indorsed: James E. Glass. A. I. Cooke. Chas. H. Muehlbronner. Thos. McGovern. of defense to the amended statement. There is no question here as to the right of the plaintiff to compel the defendant to file such an affidavit of defense. He has filed it. But we think the point is decided in the case of Cook v. Forker, 193 Pa. 461, 44 Atl. 560, 74 Am. St. Rep. 699. "The plaintiff averred that prior to May 1, 1907, he became the holder in due course of a certain promissory note, of which one "The defendant has not denied the making James E. Glass was maker, and the defendant, among others, indorser; that, being and indorsing of the note in suit, and he has such holder, he had said note discounted at not sufficiently denied the copy attached. He the Lincoln National Bank of Pittsburg; has not demanded inspection of the original. that upon maturity thereof, the aforesaid The defendant has not denied that the plainnote, now marked 'A,' was made and indors-tiff is the holder of the note in suit. He has ed as aforesaid, and delivered to the Lincoln not denied that said note at maturity was National Bank in payment of said note pre- presented at the place named in the note for viously discounted by it; that upon ma-payment, and that payment was refused. turity of said note now marked 'A,' payment He has not denied that said note was prothereof was refused, and it was protested, tested. He does say that the plaintiff gave notice of which was given to the defendant him no notice of dishonor. But this is immaand to the other indorsers and to the mak-terial. It was the duty of the Lincoln Naer; that plaintiff has been obliged to pay and lift said note, which he now holds. To this amended statement of demand the defendant filed what he called a protest, in which he denied the right of the plaintiff to require him to file an affidavit of defense to said amended statement, and then the defendant filed an affidavit of defense to said amended statement of demand. "In the latter affidavit, the defendant 'on information received' denies that the Lincoln National Bank discounted the note executed tional Bank to protest the note, upon nonpayment, and to give the notice. There is no averment that said bank did not do so, and there is no averment that notice of dishonor was not sent to the defendant. Odd Fellows' Savings Bank v. Miller, 179 Pa. 412, 36 Atl. 324. The defendant indorsed this note, gave the credit of his name to all subsequent indorsers, and he cannot avoid liability by proving the allegations in this affidavit of defense. "The rule for judgment is made absolute." Argued before MITCHELL, C. J., and, plaintiff, the coke company, on the order of FELL, BROWN, MESTREZAT, POTTER, the ballast company, and charged to its acELKIN, and STEWART, JJ. count. The contract also provided for month T. L. Gartner, for appellants. C. C. Dickly estimates in accordance with which the ey, Robert T. McElroy, and Arthur D. Harnden, for appellee. PER CURIAM. The judgments are affirmed on the opinion of the court below. (223 Pa. 84) BESSEMER COKE CO. v. GLEASON. (Supreme Court of Pennsylvania. Jan. 4, 1909.) 1. PRINCIPAL AND SURETY (§ 88*)-DISCHARGE OF SURETY-CHANGE IN CONTRACT. A surety is entitled to stand upon the terms of the contract secured precisely as they were when he agreed to become responsible for its performance. [Ed. Note.-For other cases, see Principal and Surety, Cent. Dig. § 135; Dec. Dig. § 88.*] 2. PRINCIPAL AND SURETY (§ 117*)- DISCHARGE OF SURETY - UNAUTHORIZED PAYMENT TO PRINCIPAL. Where a contract for the erection of coke ovens provided that 15 per cent. of the monthly estimates should be retained by the coke company until final settlement, the surety on the bond securing performance of the contract cannot be required to refund an overpayment by the coke company on account of the contractor for labor and supplies. [Ed. Note.-For other cases, see Principal and Surety, Cent. Dig. §§ 283-285; Dec. Dig. 8 117.*] contractor was to be paid, less 15 per cent., which was to be retained until final settlement. Pursuant to the agreement the bond was given with the defendant as surety. It was conditioned upon the faithful performance of the contract by the ballast company, and for the payment of all bills for labor and materials, and for the protection of the coke company from all claims and liens on account thereof. The contract contained a forfeiture clause authorizing the engineer in charge of the work to terminate the contract on 24 hours' notice, if in his judgment the work was not being satisfactorily pushed. Under this clause the plaintiff canceled the contract on November 8th. It alleged that it had at that time paid out for labor and supplies the sum of $2,655.32 in excess of the amount due to the contracting company for its work, and brought suit upon the bond to recover the amount so overpaid; but, as the trial judge says, there is no provision in the bond which requires the surety to refund to the plaintiff any amounts which it may have overpaid on account of the contractor, up to the date of the cancellation of the contract. There is no evidence of anything being due on back payments to any one, or that any liens have been filed, or that any other liabil Appeal from Court of Common Pleas, Al-ity exists for which the surety is responsible. legheny County. Assumpsit by the Bessemer Coke Company against Fred S. Gleason, Sr. Plaintiff was nonsuited, and, from an order refusing to take the same off, appeals. Affirmed. Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ. Wm. A. Griffith and David E. Mitchell, for appellant. J. McF. Carpenter and Geo. N. Chalfant, for appellee. No provision appears in the contract permitting overpayments to be made, and, on the contrary, there is an express provision that 15 per cent. should be retained until final settlement. What the situation would have been, had the contract not been taken away from the ballast company, and had it been permitted to finish the operation, does not appear; but, when the contract was terminated by the plaintiff, it did appear that it had made payments faster than it should have done under the terms of the contract. The POTTER, J. This suit was brought to en- surety had the right to rely strictly upon those force the liability of the defendant as surety terms. Beyond them the plaintiff could not go, upon a bond given to secure the performance to the detriment of the surety. This action of a contract by the Bessemer Contracting is not brought to recover the amount paid out & Ballast Company. It appears that the for the completion of the contract by the plainplaintiff on July 9, 1906, entered into a writ- tiff, for it does not appear that the contract ten contract with said ballast company for was ever completed. The only claim made the erection of 100 coke ovens. On October is to recover for overpayments made to or on 16th of the same year, another contract was account of the contracting company. As has made in respect to the same work, in which it been said, no provision in the bond requires was stipulated that the first agreement should the surety to make good any such advance. be canceled upon the understanding that un- The surety was entitled to stand upon the der the new contract the Bessemer Contract- terms of the contract precisely as they were ing & Ballast Company should furnish bond when he agreed to become responsible for in the sum of $2,500 to secure any back pay- its performance. An essential fact of the ments due for work done or supplies con- agreement was that 15 per cent. of the estracted for on the old contract, etc., and that | timates should be retained by plaintiff. If it all payments for work done on the old and had complied with the agreement in this renew contracts were to be paid to the men in spect, and made payments only as called for, the employ of the ballast company, by the and if its adherence to the agreement had •For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes |