as he came up Thirtieth street, to the southern line of Girard avenue, he stopped his horse and wagon at a point about opposite the building line, and waited for an eastbound car upon the track on Girard avenue nearest him to take on a passenger. While waiting there he looked up, and saw a westbound car approaching upon the other track at Twenty-Ninth street. He made no move until the car going east had passed, and then he started his horse and wagon at a slow walk across Girard avenue, but did not look again for the approaching west-bound car, nor did he notice its position as he was entering upon the track in front of it, nor did he see it until after it struck his wagon. It was apparent that the plaintiff acted in disregard of the simple but effective rule of 'safety, which required him to look for the car just before he entered the track. The rule has often been declared by this court, and is reiterated in Burke v. Union Traction Company, 198 Pa. 497, 48 Atl. 470, as follows: "The duty to look for an approaching car is an absolute duty, and failure to do so is negligence per se. This duty is not performed by looking when first entering on the street, but continues until the track is reached. Ehrisman v. East Harrisburg City Passenger Railway Company, 150 Pa. 180 [24 Atl. 596, 17 L. R. A. 448]; Omsla er v. Pittsburg, etc., Traction Company, 168 Pa. 519 [32 Atl. 50, 47 Am. St. Rep. 901]; Smith v. Electric Traction Company, 187 Pa. 110 [40 Atl. 966]." The opinion emphasizes the fact that no question arises as to the proper place to look, in the crossing of the tracks of electric roads in cities, but that clearly the duty is to look just before crossing. The excellence of this rule as a measure of safety is so apparent that it needs no argument in its justification. No possibility of collision exists until the entry upon the line of the track is made. The driver of a wagon may stop so close to the track of a street railway that the nose of his horse may almost touch the passing car, and yet be safe. But when he undertakes to look for an approaching car while he is yet some distance away from the track, he can be guided by nothing more than conjecture as to the varying rates of speed with which both car and wagon are approaching a common point. Nothing is more commonly erroneous than the estimate of distance passed over by a continuously moving body in a short space of time. In the present case the plaintiff saw the car, which afterwards struck him, while it was yet some distance away. But he probably failed to take due note of the fact that it was steadily nearing, at a rapid gait, the point at which he wanted to cross its track. When he saw it, his team was standing at a point about opposite the southern building line of Girard avenue, waiting for an intervening car to pass out of his way. When it did so, he started his horse. To do this, with a slow-moving animal, would take an appreciable amount of time. He then

drove slowly across the space between the line of the sidewalk and the first track, and across the first track, and upon the second track, without looking again to see where the car was. He was not justified in this indifference to the approach of the car. It was his plain duty, to look for it and observe its position before driving upon the track in front of it. For his disregard of this duty, the trial court held that he could not recover in this action.

The judgment is affirmed.

(205 Pa. 477)

ACKERMAN v. UNION TRACTION CO. (Supreme Court of Pennsylvania. May 4, 1903.)

STREET RAILROADS-INJURY TO BOY-NEGLIGENCE OF MOTORMAN.

1. Evidence in action against a street car company, causing death of boy riding on the side steps of a freight car ou a track parallel to the street car, considered, and held to show the motorman not guilty of negligence.

2. Where a motorman is confronted with a sudden danger, he is not liable for failure to follow what might appear on reflection to be the wiser course.

Appeal from Court of Common Pleas, Philadelphia County.

Action by Charles W. Ackerman against the Union Traction Company. From an order refusing to take off a nonsuit, plaintiff appeals. Affirmed.

Argued before MITCHELL, DEAN, FELL, BROWN, MESTREZAT, and POTTER, JJ.

Bernard Harris, for appellant. Thomas Leaming and Russell Duane, for appellee.

FELL, J. This action is by a father to recover damages for the loss of his son 13 years of age, who was killed under the following circumstances: The boy was riding on the side steps of a freight car of the Philadelphia & Reading Railroad Company, which was running north on Second street. The defendant's electric car was running south, and the tracks of the two roads were parallel, and so close that there was a space of only a few inches between the sides of the cars as they passed. The freight train approached Second street on a curve, and turned onto the street a short distance from the place of the accident. The freight car could be seen by the motorman when it was 300 feet distant, but the boy could not be seen until the freight car reached a position where the tracks were parallel. This was about 150 feet from the spot where the accident occurred. The boy was on the sixth car of the freight train, and according to the testimony the train and the electric car were running as fast as cars usually run between crossings, or, as stated by some of the witnesses, much faster than a horse could trot. As soon as the motorman saw the boy, he called to him and made gestures to indicate that he should jump off the step, or climb on

the bumper at the end of the car, which was one foot from the step. This warning was disregarded. The boy attempted to avoid injury by straightening his body and keeping close to the side of the car. He was struck on the shoulder, thrown to the narrow space between the tracks, and injured by the wheels of both cars. We find nothing in this situation from which negligence on the part of the motorman can fairly be inferred. He first saw the boy when the distance between them was 150 feet, and they were approaching each other at the rate of at least 15 or 20 miles an hour. With a clear understanding that the boy would be injured unless he got out of the way of the electric car, the motorman called and motioned to him to jump off or climb on the bumper. Possibly, under the circumstances, it would have been better to stop the car, and thus lessen the injury, than attempt to avert it altogether; but, since he was confronted by a sudden and unexpected danger, and had but a moment in which to act, the motorman cannot be held liable for failure to see and follow what might appear on reflection to have been the wiser course. Hestonville, etc., R. Co. v. Kelley, 102 Pa. 115; Phillips v. People's Pass. Ry. Co., 190 Pa. 222, 42 Atl. 686.

The judgment is affirmed.

(205 Pa. 470)

RICHMOND v. BENNETT. (Supreme Court of Pennsylvania. May 4, 1903.)

SHERIFF'S DEED

་

INTEREST CONVEYED EASEMENT-NONUSER-REFERENCE-OB

JECTIONS WAIVED-INJUNCTION. 1. A sheriff's deed on a foreclosure affects a transfer of an easement appurtenant to the land, though no mention of it is made in the deed.

2. After a mortgage was executed on certain land, a right of way was created in favor of the land. Held, that a sheriff's deed on foreclosure passed the easement.

3. Nonuser will not terminate an easement created by express grant.

4. Where, by agreement, a case in equity has been referred to referee, defendant cannot first raise the question of jurisdiction after the testimony has been closed.

5. Where, in a bill to restrain the obstruction of an easement; the evidence as to plaintiff's title is such that a judge in an action at law would direct a verdict, equity will grant relief, though there has been no adjudication of title at common law.

Appeal from Court of Common Pleas, Philadelphia County.

Bill by James Richmond against S. Bennett. Decree for plaintiff, and defendant appeals. Affirmed.

Plaintiff was owner of a lot on Fortieth street, in the city of Philadelphia, running back to a 10-feet strip of ground extending northward from Locust street to the property of defendant. Defendant, claiming that the 10-feet strip was a private way, the fee

3. See Easements, vol. 35, Cent Dig. § 78.
55 A.-2

of which was in him, began the construction of a hay scale in the strip, which would obstruct its use as a wagonway, whereupon plaintiff, claiming an easement of passage through the strip, filed a bill for injunction. The referee made the following findings of law:

"The complainant in this suit seeks to enjoin the respondent, Bennett, from building a hay scale upon land adjoining said complainant's property, and over which said complainant claims a right of way, granted as appurtenant to his lot by deed. The respondent does not deny the act complained of, but defends his conduct on the ground that there exists no right of way over the land referred to; that he (the respondent) is the owner in fee of the soil thereof; and that in building the said structure he is but exercising his proper rights as owner of the soil, and that the complainant has no rights therein for passage, or for any other purpose. There has been no serious effort made by either party to establish an adverse possession, or to set up a prescriptive right as opposed to the records of title and grants. The question, therefore, is one of real estate law, depending more on the interpretation of recorded deeds than on the conduct of the various holders of the titles, as testified to by the witnesses called. That the right sought to be enforced by the complainant did at one time exist cannot be seriously doubted. Joshua Paxon, owning both the dominant and the servient tenement, sold his land in two portions, the one now belonging to the respondent being expressly subjected to a right of way in favor of the other, now owned by the complainant. As will appear from the deeds themselves, the conclusion is unavoidable that this easement was created as appurtenant to the lot now owned by plaintiff. It was binding upon Paxon himself, and, by record, notice upon his immediate successor, Grau.

"It remains to inquire whether, by any means, the easement once existing has since been extinguished. In general, an easement created by express grant cannot be destroy. ed by anything short of a new grant of equal solemnity or adverse possession constituting a prescriptive right. Nonuser, even if established, would not terminate it, and I have found that there is no evidence of a release, and none showing adverse possession. That nonuser is immaterial is shown by McKee v. Perchment, 69 Pa. 342. There the subject of contention was an alley, which was fenced through the middle, and had stables, coalhouses, and other buildings upon it, with trees and bushes, for a period of more than twenty-one years. It was held that, as the right to the alley was conveyed by express grant, and as the obstructions were not shown to have been accompanied by adverse possession, the easement must be sustained. It was urged, however, that in the present case there is a lack of continuity in the line of deeds transferring the easement to the

present claimant. The contention is that, granting the previous existence of the right, it expired because it was omitted from a deed by which the sheriff transferred the dominant tenement. I am unable to see how this omission can affect the rights of the parties. There is nothing amounting to a release, for the owner of the servient tenement was not privy to these transactions, and was fully informed of the existence of the easement by the record in his own line of title. Moreover, the presumption is that, where notice is given to the servient holder either by apparent use of the way or upon the record, all rights created to assist in the enjoyment of the dominant land become appurtenant thereto, and pass therewith, even though not mentioned in the deed. This rule is established by numerous authorities, among which may be mentioned the following cases: Swartz v. Swartz, 4 Pa. 353, 45 Am. Dec. 697; Rhea v. Forsyth, 37 Pa. 503, 508, 78 Am. Dec. 441; Ott v. Kreiter, 110 Pa. 370, 1 Atl. 724; Held v. McBride, 39 Wkly. Notes Cas. 284; Wright v. Chestnut Hill Iron Ore Co., 45 Pa. 475; Erb v. Brown, 69 Pa. 216. Especially is it true that an omission from a sheriff's deed is not fatal. A sheriff's sale operates to transfer the mortgagor's title such as it is, not merely such as it is described to be. In Kieffer v. Imhoff, 26 Pa. 438, it is said: "The omission to specify the privilege particularly does not change the qualities annexed to the estates, nor do the other trifling inaccuracies produce that effect. Precision of description is never expected in a sheriff's deed, and it is always construed with great liberality.' See, also, Buckholder v. Sigler, 7 Watts & S. 154; Wright v. Chestnut Hill Iron Ore Co., 45 Pa. 475; Middleton's Ex'rs v. Middleton, 106 Pa. 252; Overdeer's Adm'r v. Updegraff, 69 Pa. 110; Zell v. Universalist Society, 119 Pa. 390, 13 Atl. 447, 4 Am. St. Rep. 654; and Geible v. Smith, 146 Pa. 276, 23 Atl. 437, 28 Am. St. Rep. 796. I am of opinion, accordingly, that the said sheriff's deed effected a transfer of an appurtenant easement, even without express mention of it.

"It is true that the mortgage to satisfy which this sheriff's sale took place was prior in time to the creation of the easement. It is settled, however, by Cannon v. Boyd, 73 Pa. 179, where the facts were very similar to those in the present case, that the easement passes notwithstanding the priority of the mortgage.

"Both parties have inquired at some length into the nature of the respondent's title to the soil of the alley. This question it is unnecessary to consider. The most perfect title to the soil would not relieve the respondent from his duty to respect the plaintiff's right of way thereover. The important fact in this case in the line of title is that the existence of the servitude was on record in Paxon's deed to Grau. Binding Grau, it also bound the subsequent purchaser at the sheriff's sale, and constituted a sufficient no

tice to all claiming under him, including the respondent. Therefore I report a right of way appurtenant to the complainant's lot was created with due regularity, and notice thereof placed on record for all purchasers of the servient tenement. This easement was never released. It was never overriddence by any prescriptive right. Nor did it expire merely because it was not mentioned in one of the deeds through which the complainant obtains his title. Of the respondent's title, it is enough that the record show full notice to him that he bought subject to the easement.

"After the testimony had closed, and during the argument, the respondent contended for the first time that the bill should be dismissed for want of jurisdiction, although this question had not been set up by demurrer or suggested in the answer. Under the decisions of the Supreme Court it should not now be considered. The following language, taken from the opinion in Shillito v. Shillito, 160 Pa. 167, 28 Atl. 637, is in point: 'Moreover, the jurisdiction of the court was not denied or questioned by demurrer, plea, or answer. The first intimation of a want of jurisdiction came after the most of the testimony had been taken by a master appoint. ed on the agreement of the parties, and after the most of the expenses of the litigation had been incurred. We have, therefore, a case to which the language of this court in Adams' Appeal, 113 Pa. 449, 6 Atl. 100, is applicable, even if it be conceded that there is room for doubt respecting jurisdiction. In delivering the opinion of the court in the case cited, the present Chief Justice Green said: "While it is true that manifest want of jurisdiction may be taken advantage of at any stage of the cause, the court will not permit an objection to its jurisdiction to prevail in doubtful cases after the parties have voluntarily proceeded to a hearing on the merits, but will administer suitable relief." See, also, Evans v. Goodwin, 132 Pa. 136, 19 Atl. 49; Searight v. Carlisle Deposit Bank, 162 Pa. 504, 29 Atl. 783; Drake v. Lacoe, 157 Pa. 17, 27 Atl. 538; Edgett v. Douglass, 144 Pa. 95, 22 Atl. 868; and Margarge & Green Co. v. Ziegler, 9 Pa. Super. Ct. 438.

"But, even if the objection to the jurisdiction of equity be considered at this stage of the proceeding, it is not at all clear that the plaintiff is not entitled to equitable relief. It is true that in actions respecting real property, where the plaintiff's right has not been established at law, or is not clear, he is generally not entitled to remedy by injunction; but where in a proceeding in equity the plaintiff's title is clear, and all the evidence relating to it is of such a character that a judge in a trial at law upon the same evidence would not be at liberty to submit the question of the plaintiff's title to the jury, equity will grant relief although there has been no adjudication of the title

at common law. Edgett v. Douglass, 144 Pa. 95, 22 Atl. 868; Manbeck v. Jones, 190 Pa. 171, 42 Atl. 536. In Manbeck v. Jones, a bill in equity was filed for an injunction to restrain the closing up of an alleged road across defendant's land. The answer denied the existence of the road. Although the question of the existence of the right of way had not been tried in an action at law, the court below heard testimony on both sides, and decided that the defendant took his conveyances subject to the right of way. Judge Bechtel, delivering the opinion of the court below, cites authorities to the effect that the right should be clear to warrant a decree and injunction to compel the keeping open of a way, and, if the right be doubtful, a chancellor will pause until it be established by law. He then says: 'Of course, the right should be clear, and no chancellor would interfere in a doubtful case until it is established; but when the right is clearly shown, as in this case, a suit at law is unnecessary, and really a useless expense. * think, if the testimony before us was submitted to a jury, there could be but one finding, to wit, in favor of the existence of the road. Nor could any other be conscientiously sustained.' The court entered a decree ordering that the road be opened, and restraining any further obstruction of plaintiff's right of way. The decree was affirmed by the Supreme Court, which held: For reasons given by the learned trial judge in his opinion, we are satisfied he was right in concluding that the plaintiff was entitled to equitable relief, and in adequately providing therefor by the terms of the decree from which this appeal was taken.'

We

"For the reasons given, I report in favor of the complainant, and respectfully recommend that a decree be entered in accordance with the prayer of the bill in the form herewith submitted and attached."

ors and their assigns might evade the most solemn obligations, and fraudulently rid themselves of troublesome servitudes for which they have received a large price. Such a construction of the laws relating to the collection of taxes does not appear to be nec essary in order to secure the payment of the tax, and would produce a manifest injustice without any important advantage to the state or the city. This, then, is precisely the case in which the argument from inconvenience is decisive of the construction. The words of the various acts of assembly relating to the levying and collection of taxes have no such necessary meaning or effect as that which the argument for the plaintiff attributes to them, and, this being so, the great inconvenience which would result from the construction which he contends for supplies a powerful reason for believing that such a construction was never contemplated by the Legislature, and fully warrants us in rejecting it. The decisions and the general current of legislation upon this subject tend greatly to strengthen this conclusion. That a ground rent was not divested by a judicial sale for taxes assessed upon the land was settled by the courts before the passage of the act which expressly so enacts. Irwin v. Bank of United States, 1 Pa. 349; Salter v. Reed, 15 Pa. 260. The legislation which protects mortgages which are prior to tax claims is also a clear indication of the policy of the state upon the subject. The right which is acquired by the covenantee and his assigns in a building restriction, such as that which exists in that of the line of his title, is a right not in the land, but appurtenant to the land. Like a ground rent, it is an interest not in the land itself, but incident to the ownership of another, and arising out of a covenant fastened upon it by a former owner. The same reasoning and the same policy which protects a ground rent from being divested

"In reply specially to the complainant's twenty-fourth exception, in which the error assigned is my finding as a matter of law that the servitude imposed upon respondent's land was not discharged by the sheriff's sale for taxes of 1887, I refer to the cases of Irwin v. Bank of United States, 1 Pa. 349, and Lesley v. Morris, 9 Phila. 110, not cited in my original report. In the latter of these cases it is held that a building restriction upon real estate is not removed by a subsequent judicial sale for taxes. On page 111, 9 Phila., Judge Thayer, in delivering the opinion of the court, says: 'It would be a very dangerous doctrine to establish that a covenantee who is not a party to the proceedings for the collection of the taxes, and who had no notice of their existence, should, without any fault of his, be deprived of a valuable right-a right which is as much property as the land itself. Such a doctrine would furnish a very easy method by which covenant

fore, to protect the right which a covenantee and his assigns have in a building restriction." "

Argued before MITCHELL, DEAN, FELL, MESTREZAT, and POTTER, JJ.

William S. Divine and Arthur B. Huey, for appellant. A. I. Phillips, Dimner Beeber, and J. Levering Jones, for appellee.

PER CURIAM. This decree is affirmed on the findings of law by the learned referee, costs to be paid by appellant.

ical examiner, the physician called for the plaintiff cannot be cross-examined as to whether the treatment of the disease of which the insured died was a proper treatment.

2. A physician, called as a witness for plaintiff in an action on a life policy, cannot be asked whether, if he had been told that shortly before the application insured had consulted another physician for a cough and night sweats, that fact would have had any effect with regard to passing applicant as a first-class risk.

3. Where, in an action on a life policy, the defense is false answers made by the insured in his application, defendant can show that deceased had consumption within a year after the date of the policy and died therefrom, after showing that insured was treated for consumption within the year preceding the policy.

4. Where, in an action on a life policy, the evidence for defendant shows that insured had consumption during the year before the issue of the policy and died of that disease thereafter, and insured stated in his application that he never had any spitting of blood or serious illness, the trial judge should instruct the jury that the statements alleged by the defendant to be false were material to the risk, and if they were false would avoid the policy.

Appeal from Court of Common Pleas, Philadelphia County.

Action by Mary E. Murphy against the Prudential Insurance Company of America. Judgment for plaintiff, and defendant appeals. Reversed.

Argued before MITCHELL, DEAN, FELL, BROWN, MESTREZAT, and POTTER, JJ.

Frederick J. Shoyer, for appellant. Thomas A. Fahy and Walter Thomas Fahy, for appellee.

MESTREZAT, J. This is an action of assumpsit on an insurance policy issued by the defendant company on the life of Edward Joseph Murphy, the husband of the plaintiff, who was named as the beneficiary. The application was signed by the insured on November 18, 1899, the medical examination was made the next day, and the policy was issued November 24, 1899. The death proofs state that Murphy died April 5, 1901, of pyelonephritis. The application contains the following questions and answers: "16. Are you in good health? Yes. 17. When were you last attended by a physician? Four years ago. For what complaint? Neuralgia of the face due to a bruise. 23. Have you ever had (answer 'Yes' or 'No' to each)

spit

ting of blood? No. 24. Have you ever had any serious illness? No." The defense to the action is that the answers to these questions were not true, and were known to be untrue by the applicant, Edward Joseph Murphy, when they were made. It is claimed by the defendant company that at the time the insured signed the application he was not in good health, had consulted physicians for hemorrhages and spitting of blood, and died subsequently, on April 5, 1901, of consumption. The application contains, inter alia, the following language: "I hereby declare and warrant that all the statements and answers to the above questions, as well as those

made or to be made to the company's medical examiner, are or shall be complete and true, and that they, together with this declaration, shall form the basis and become a part of the contract of insurance hereby applied for. And it is agreed that if any of the said answers be incorrect in whole or in part, then the policy which may be granted in pursuance hereof shall be null and void, and all payments made thereon shall be forfeited to the company. And it is further agreed that the policy herein applied for shall be accepted subject to the conditions and agreements therein contained, and said policy shall not take effect until the same shall be issued and delivered by the said company, and the first premium paid thereon in full, while my health is in the same condition as described in this application." In the application, under the questions to be answered by the insured, and which were answered by him before the medical examiner of the company, is the following: "I hereby warrant that the answers to these questions are true, and agree that they shall form a part of the contract of insurance applied for." The case was submitted to the jury by the learned trial judge to determine the truth or falsity of the answers to the questions in the application, with instructions that, under the act of 1885 (P. L. 134), answers which are in fact incorrect and untrue would not avoid the policy if they were immaterial to the risk, provided they were made in good faith by the insured, and in the belief that they were true. The verdict and judgment were for the plaintiff, and the defendant company has appealed.

The first assignment complains that the court erred in refusing to permit the defendant, on cross-examination, to ask Dr. Clark, a witness for plaintiff, the following question: "Would you say that was not a proper treatment for tuberculosis?" The treatment referred to was alleged to have been administered by Dr. Atlee prior to the date of the application. The question was properly excluded. The treatment of the disease was not in issue, and therefore the question was irrelevant. An affirmative reply to the question would have tended to show that the treatment administered by Dr. Atlee was, in the opinion of the witness, proper for tuberculosis, but it would not have aided the jury in determining whether the patient was suffering with that disease, which was the question at issue.

The second, third, and fourth assignments allege error by the court in excluding the answers to questions, on cross-examination, put by the defendant to Dr. Clark, the physician who had examined the insured for the risk, to ascertain whether, if the witness had been told by the applicant that shortly prior to the application he had consulted Dr. Atlee for a cough and for night sweats, that fact would have had any effect with regard to passing him as a first-class risk. The only