William A. Challener, Clarence Burleigh, and James C. Gray, for appellant. Rody P. Marshall and Thomas M. Marshall, for appellees.

side of the Hanlon building to the west side of Berlin street is 120 feet by actual measurement. If the car was 120 feet distant when the pony reached the east-bound track, it must have been some distance farther west when the deceased turned to cross over the tracks-so far distant that a jury might fairly find that he was not guilty of contributory negligence in crossing over. Under the evidence submitted by the defendant, he carelessly drove right in front of the approaching car; but the verdict is not to be disturbed, even though we, as jurors, might have found differently. There was evidence upon which the jury could find that the boy's carelessness had not contributed to the collision, and the judgment must therefore be affirmed. Judgment affirmed.

BROWN, J. The son of the plaintiffs, at the time of the collision which resulted in his death, was 11 years and 5 months old. In company with two other boys, he was in a two-wheeled pony cart, driving a pony. This was with the permission of his father, who for some time before had allowed him to drive his team on the streets of the East End, Pittsburg, upon which street railway tracks were laid. The father stated that he had no hesitation in trusting him alone with his pony and cart. When the team was struck by a car of the defendant, the boy was driving it as an advertisement for his brothers' livery stable. He had driven it for that purpose in a procession a short time before he drove across the tracks. The PITTSBURG & W. E. RY. CO. v. POINT case was submitted to the jury under instructions to which no exception has been taken. The single assignment of error is the court's refusal, upon request, to charge that, under all the evidence, the plaintiffs could not recover.

The sole defense set up is the contributory negligence of the boy. In insisting that the judgment ought to be reversed for this reason, it is contended that, in this suit by his parents to recover for their loss in his death, he must, from the testimony, be regarded as a competent driver, familiar with the streets and the dangers incident to travel thereon; that his act in attempting to cross the railway tracks was their act, and they cannot, in view of their permitting him to drive his team upon the streets, say that the test of his contributory negligence was his boyish appreciation of the dangerous situation. Whether this be so or not we need not de cide; for, even conceding it to be, and that under the circumstances the plaintiffs are estopped from saying that their child ought not to be held to the degree of care that would have been required of an adult, the court could not, under the testimony, have declared as a matter of law that he was guilty of contributory negligence. He was driving eastward on Frankstown avenue, on which there were two tracks of the appellant. He was driving between the westbound track and the pavement, and as he approached Berlin street to his right, which runs to, but does not extend over, Frankstown avenue, he turned his pony to cross over and go down the street to his brothers' stable. Two witnesses to the collision, called by the plaintiffs, testified that the team had passed over the first track, and, when the feet of the pony were on the second, or eastbound, one, they saw the car at a fixed point -Hanlon's building-approaching at a rapid rate of speed. The distance from the east

(223 Pa. 133)

BRIDGE CO.
(Supreme Court of Pennsylvania. Jan. 4, 1909.)
EQUITY (8 43*) — JURISDICTION - ADEQUATE
REMEDY AT LAW.

Equity has no jurisdiction to enforce col-
lection of tolls due by a street railroad com-
pany to a bridge company, where the railway
had a charter right to use the bridge, because
a decree had been entered, in a suit by the
bridge company, 14 years before, fixing the tolls
being collectible in an action at law.
to be paid for a period of 5 years; such tolls

[Ed. Note. For other cases, see Equity, Cent. Dig. § 121; Dec. Dig. § 43.*]

Appeal from Court of Common Pleas, Allegheny County.

Bill by the Point Bridge Company against the Pittsburg & West End Railway ComDecree for plaintiff. Defendant appany. peals. Reversed.

The following decree was entered in the trial court:

"And now, to wit, May 16, 1908, this cause came on to be further heard at this term, and was argued by counsel, and, upon consideration thereof, it is ordered, adjudged and decreed as follows, to wit:

"(1) That the Pittsburg & West End Passenger Railway Company pay to the Point Bridge Company, as compensation or tolls for all cars which passed over the Point Bridge from June 1, 1896, to November 12, 1897, at the rate of $8,000 per annum, the total sum of $11,550, with interest thereon at the rate of 6 per cent., from November 12, 1897, amounting to $7,260, making a total of $18,810.

"(2) That the Pittsburg & West End Passenger Railway Company pay to the Point Bridge Company, as compensation or tolls for cars which crossed the Point Bridge from November 12, 1897, to November 12, 1907, at the rate of $8,000 per annum, the total sum of $80,000, together with 6 per cent. interest thereon, computed upon the basis

"(3) That until further order of this court the Pittsburg & West End Passenger Railway Company shall pay to the Point Bridge Company, as compensation for such use of its bridge, in quarterly payments, at the rate of 5 cents per single trip for each car cross-operate a street railway over certain streets ing said bridgė.

"(2) That the Pittsburg & West End Passenger Railway Company pay to the Pointed in the decree no agreement has been made Bridge Company, as compensation or tolls for cars which crossed the Point Bridge from November 12, 1897, to November 12, 1907, at the rate of $8,000 per annum, the total sum of $80,000, together with 6 per cent. interest thereon, computed upon the basis of the monthly payment due, of $666.66, amounting to $26,050, making a total of $106,050.

to cross the said bridge. The few remaining to pay, and the bridge company receive, after facts found by the court below need not be repeated, for they throw no light on the fundamental question of its jurisdiction in this proceeding.

On October 11, 1906, the appellee presented a petition to the court below, praying for a decree to fix the rate of compensation which the Pittsburg & West End Passenger Railway Company should pay it for the use of the bridge in the operation of cars over it from November 12, 1897, to date. We know of no place in equity proceedings or pleadings to which this petition belongs, and the learned pleaders for the appellee have not told us how they designate it. The averments leading up to the prayer are but recitals of conditions existing between November, 1897, and October, 1906; and, while they are evidently relied upon as an excuse for the delay in instituting this proceeding, there is nothing in them to justify it.

that period, and this is conceded by the appellee in its averment that the rate after November 12, 1897, should be much greater than $8,000 a year. After November, 1897, the appellee never fixed any rate of toll to be paid by the railway company, and never attempted to collect anything from it for the use of the bridge from that time until it asked the court, in October, 1906-nearly 9 years afterwards-to fix the amount to be paid for back tolls.

The only reason given for this present proceeding is that, as the court in 1892 had fixed, at the request of the railway company, the rate to be paid by it for the use of the bridge for 5 years, it ought now, against the protest of that company, to stretch its jurisdiction as to fix back tolls to be paid for 10 years. Broad as are the powers of an equity court, they have never been known to reach a controversy between a landlord and his tenant, where the only question is how much back rent is due. This is the bald situation here. Even if the appellee, upon the expiration of the 5-year period, or immediately thereafter, might have asked the court for a decree fixing the rate of tolls to be paid in the future, it did not do so, but after 9 years resorted to this proceeding in a court of equity to recover for past lawful use and occupation of its property. Though reference is made in it to the proceeding in 1892, the latter forms no part of it. The complainant here was the respondent there in a bill to restrain it from interfering with vested rights, and now, merely because a decree was made in that case, at the request of the appellant, fixing the rate of tolls to be paid for a period of 5 years, a court of equity is to be made a collecting medium, instead of a court of law, where, and where alone, if there be any liability on the part of the appellant, it is to be enforced by the ordinary action for reasonable compensation for past lawful use and occupation of appellee's property. Authority to sustain the appellee can nowhere be found. Berks County v. Reading City Passenger Railway Co. et al., 167 Pa. 102, 31 Atl. 474, 663, cited by the court below and relied upon by counsel for appellee, announces no such doctrine as we are asked to sanction. The court was without jurisdiction either to fix a rate to be paid for the past use of the bridge, or to decree payment of any sum, even if one had been agreed upon by the parties.

The error into which the court below fell was that, by the decree of 1892, a "franchise" or "right" was granted to the appellant to operate its cars across the bridge. Its right to use the bridge as a part of one of the highways of the city existed independently of any action by the court, and could not have been taken from it by that tribunal. The right belonged to it under its charter from the moment the city of Pittsburg, by the ordinance of March 31, 1879, granted it permission to operate a street railway over certain streets from Fifth avenue and Liberty street to Stone Tavern. When the bridge company in 1892 attempted to interfere with the exercise of this right, the bill was filed to restrain it, and the complainant asked the court to fix and declare what reasonable toll should be paid in the future. In making the decree prayed for the court but recognized the clearly existing right of the railway company to cross the bridge, which right it not only did not give, but could not have given, to the appellant. Under article 17, § 9, of the Constitution that right could have come only from the city, from which it did come, and all that the court did was to impose, at the request of the complainant, the terms for a fixed period upon which its cars should cross the bridge. The words of the decree are: "This rate shall not control for the use of said bridge for a longer period than five years from this date"-and then follows leave to either party to make application during the .5 years, but not afterwards, for a modifica- After June 1, 1896, the city of Pittsburg tion of the decree, and for such further or having at that time control of the bridge, der as, "under the circumstances then exist- the appellant failed to make further paying," might be proper. After the expiration ments, and, upon appellee's amendment to of the 5-year period no right was preserved its original petition, which, as amended, may or continued to the appellee by the decree. be regarded as one asking the court to enOn November 12, 1897, it had served its pur- force payment of a balance due it under the pose, and thereafter could be invoked only decree of 1892, it was decreed that the apto enforce, in a proper proceeding, payment pellant pay, for the use of the bridge from of the tolls that had accrued during the 5- June 1, 1896, to November 12, 1897, rental at year period. It was not a fixed basis for the rate of $8,000 per annum, with interest,

Appeal from Court of Common Pleas, Al- go in on a switch, or thrown so as to allow legheny County. a car to go along the main track at that A. Why, it was for the straight

Evans, J., of the court below, filed the a stepson of Arnold Geiser, the plaintiff in following opinion:

"Let judgment be entered upon the verdict."

Argued before MITCHELL, O. J., and FELL, BROWN, MESTREZAT, ELKIN, and STEWART, JJ.

switch point was worn flat justify the jury | burg Railways Company, 216 Pa. 584, 66 Atl. in drawing the inference that the accident | 76, we do not think rules this case. In that to the car was occasioned by that condition case the plaintiff's testimony clearly shows of the switch point, and was the condition that the accident was caused by the icy conof the switch point such as to impute negli- dition of the tracks, a condition which was gence to the defendant company in permit- not under the control of the defendant comting it to remain in that condition? It is still pany. We are of the opinion that there was the rule of law that the happening of the sufficient evidence of negligence here to take accident in cases such as this one is not evi- the case to the jury. dence of itself of negligence, but the quantum of proof necessary to establish negligence, under certain circumstances, need be very slight. In Shearman and Redfield on Negligence, §§ 59, 60, quoted with approval in the case of Shafer v. Lacock et al., 168 Pa. 497, 32 Atl. 44, 29 L. R. A. 254, this rule is laid down: "The accident, the injury, and the circumstances under which they occurred are, in some cases, sufficient to raise a presumption of negligence, and thus cast on the defendant the burden of establishing his freedom from fault. When a thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does

not happen, if those who have the manage ment use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from a want of care.'

"Applying that principle to the case at bar, we have the fact that it rarely happens that the forward trucks of the car will proceed upon the main track and the rear trucks take the switch. If some obstruction has been negligently placed upon the track, causing the car to jump from the track upon which it was proceeding, that would natu- | rally have affected the front truck as readily as the rear. No ordinary condition of the tracks of the defendant company explains this accident. As we have suggested, no sudden emergency of something upon the track would explain why one pair of trucks of the car proceeded in its regular way and the other set of trucks did not. In the case of Matthews v. Pittsburg & L. E. Railroad Company, 18 Pa. Super. Ct. 10, Mr. Justice Orlady, after citing the principle quoted from Shearman and Redfield, § 59, says: "While the burden of proof is on the plaintiff in such cases, it is not required that the facts be established by direct or positive proof. Like any other fact, it may be established by circumstantial evidence; and, on account of the great difficulty in proving negligence in such cases, any proper evidence from which negligence may be inferred is sufficient to throw the burden on the defendant. There may be no direct proofs of negligence, yet the way in which an injury is done may be such that negligence is the most probable hypothesis by which it can be explained: and, when this is so, the defendant must disprove negligence by showing that he exercised care.' The case of Small v. Pitts

Wm. A. Challener, Clarence Burleigh, and James C. Gray, for appellant. Rody P. Marshall and Thomas M. Marshall, for appellee.

PER CURIAM. The judgment is affirmed, on the opinion of the court below.

(223 Pa. 174)

KREUSLER v. GLUKOFF CO. et al.

(Supreme Court of Pennsylvania. Jan. 4, 1909.)
VENDOR AND PURCHASER (§ 242*)-RELEASE
OF MECHANIC'S LIEN-NOTICE-INQUIRY-
BURDEN OF PROOF.

A purchaser at a bankrupt's sale had notice of an apparent subsisting mechanic's lien against the property from the record. Held, that the burden was on him to show diligent inquiry if he desired to be relieved from the lien because of an apparent release not of record, and of which he had no knowledge, and which was not intended for his protection, but of which he could have learned.

[Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 603-605; Dec. Dig. § 242.*]

Appeal from Court of Common Pleas, Allegheny County.

Action by H. L. Kreusler against the Glukoff Company and others. Judgment for

defendants notwithstanding the verdict, and plaintiff appeals. Reversed.

At the trial the jury returned a verdict for plaintiff for $6,820.77. Evans, J., of the court below, filed an opinion entering judgment for defendant non obstante veredicto. In this opinion the facts are stated as follows:

"This suit is a sci. fa. sur mechanic's lien, filed by the plaintiff, H. L. Kreusler, and the facts as they appeared on the trial of the case were as follows: The plaintiff was a general contractor, and as such had a contract with the Glukoff Company for the erection of a building in the city of Pittsburg. Under the agreement between the contractor and the owner, the contractor was to furnish a release of liens by himself and all subcontractors and materialmen, to be delivered to one J. M. Stoner, Jr., who, upon the payment of all moneys due upon the contract, was to deliver the release of liens to the owner, the Glukoff Company. The erection of the build