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could have insisted that plaintiff be brought before it to acknowledge her signature, but it chose to rely upon Wagner's standing as an attorney, or upon the guaranty of plaintiff's signature by members of the stock exchange, and has only itself to blame for the situation in which it finds itself. It is not in position, being itself a wrongdoer, to invoke the doctrine of equitable estoppel as against plaintiff, who has done no wrong, but simply trusted to her attorney not to wrong her, and to it, as her trustee, not to negligently deprive her of her property. If complaint had been made of a delay upon plaintiff's part after she in fact knew, then the principle set forth in McNeely Co. v. Bank of North America, 221 Pa. 588, 70 Atl. 881, 20 L. R. A. (N. S.) 79, so much relied upon by the trustee, might have applied; but no such complaint is made, and hence the case is inapplicable.

[1] The contention of appellants is that, I both itself and her. When the forged power even if her alleged signature is a forgery, of attorney was presented to the trustee, it plaintiff is equitably estopped from claiming the certificates, because on April 12, 1912, when she received the check of the trustee to the order of Wagner and indorsed by him to her order, she was put upon notice that the certificates had been transferred to Wagner by reason of a statement in the body of the check that the certificates were "registered in the name of same," 1. e., in the name of Wagner, and did not then immediately take steps to have the alleged assignment declared void. This is in effect saying: As you did not promptly repudiate the assignment, after you did or should have known of it, and as we have altered our position for the worse because thereof, you must be held to have ratified the forgery, and cannot now assert the contrary. We have said, however, that that which is criminal, and notably a forgery, is incapable of ratification (Shisler v. Vandike, 92 Pa. 447, 37 Am. Rep. 702; Henry Christian Building & Loan Association v. Walton, 181 Pa. 201, 37 Atl. 261, 59 Am. St. Rep. 636; Shay v. American Iron & Steel Co., 218 Pa. 172, 67 Atl. 54); and upon this ground we might, perhaps, decide the case. Inasmuch, however, as it was not considered by the court below, nor raised in any of the arguments in this court, we prefer to plant our decision upon a ground which was fully discussed both there and here.

Plaintiff testified at the trial, and the court below found her signature to the power of attorney was a forgery; that she was not acquainted with business affairs and did not know what registration meant; that she did not know of the alleged transfer and registration in Wagner's name until after his flight, and then immediately gave notice to defendants; that Wagner had been her attorney for many years, and she relied upon him in her business matters, and for these reasons she was not estopped by the form of the checks she received. Under those facts we think the conclusion reached was correct. While the recital in the trustee's check, indorsed over by Wagner to her, was evidence to be considered by the chancellor, we cannot properly overrule his conclusion, from all the evidence, that it was not sufficient to and did not operate to inform her of Wagner's wrongful conduct. Defendants had the burden of showing they were wholly innocent, and she was or should have been acquainted with the facts out of which the estoppel grew, and this burden they did not carry. To estop her because of her ignorance and trust, when in fact she did not know, would be to put an undue burden upon her in opposition to the common experience of mankind, and in favor of a trustee who has negligently acted to her injury, when it had in its power, and

[2] Nor are the individual defendants, who were purchasers of the certificates, in any better position. We said in Cohen v. Tradesmen's National Bank, 262 Pa. 76, 78, 105 Atl. 43:

can be

"An action [of negligence] maintained only in case defendant fails to or negligently performs some duty which he owes to the plaintiff. That duty may be expressed or implied, may be a specific duty owing to plaintiff, or a general one owing to the public, of which plaintiff is a part, and it may arise as the result of a contract, a statute or the common law; but it must exist in some way as between the plaintiff and the defendant."

In this case plaintiff owed no duty to the purchasers of her certificates, save as she owed a like duty to the public at large; that is, to give notice and act promptly, lest innocent third parties should purchase the certificates. As we have above pointed out, she neglected no duty in that regard; and, as all of the defendants consummated their purchases before she actually knew of the wrong done, they suffered no injury by the delay in filing her bill, even if their prior litigations did not furnish an ample excuse therefor.

We cannot but express our regret that the defendants, who hold the certificates, did not give notice to plaintiff to forthwith proceed in equity, as soon as they learned, through her, of the forgery of her signature, and then file a cross-bill in the proceeding instituted as a result of that notice. By that course everybody in interest would have been before the court in one proceeding; at least two lawsuits already heard and decided would have been avoided, not to mention those which may follow our decision of this case; other litigants could have had their cases more promptly heard and decided;

(106 A.)

burdened, would have been pro tanto relieved. Every citizen, of course, has a legal right to litigate as he chooses; but it is always well to remember that "interest reipublicæ ut sit finis litium."

The decree is affirmed, and the appeals dismissed at the costs of the respective appel

lants.

ner.

Action by Michael F. Toner against the Pennsylvania Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Argued before STEWART, MOSCHZISKER, FRAZER, WALLING, and SIMPSON, JJ.

Sharswood Brinton and John Hampton Barnes, both of Philadelphia, for appellant. Daniel G. Murphy and Isaac D. Levy, both of Philadelphia, for appellee.

MOSCHZISKER, J. (dissenting). The majority opinion rests upon the assertion that the appellee did not know the bonds had been transferred from her name to that of Wag. When a person receives a check from a corporation at a regular interest period, for SIMPSON, J. [1] Defendant appeals from an amount usually paid on certain bonds a judgment entered on the verdict of a jury owned by her, and standing in her name, in a negligence case. It assigns as errors which check, shows on its face it is in pay- only the refusal of its point for binding inment of interest on bonds, and also states, structions and the dismissal of its motion in effect, that these securities stand in the | for judgment non obstante veredicto. The name of the payee, the latter being a third single question for us is, therefore: Was person, and that third person transfers the check by indorsement, to my mind, the recipient is thereby put upon such notice the bonds no longer stand in her name that she should not be heard to plead ignorance of their transfer. To hold otherwise makes one rule of law for women who happen to be inexperienced in business, possessed of all their faculties, and another for the rest of mature mankind; therefore I dissent.

(263 Pa. 438)

TONER v. PENNSYLVANIA R. CO. (Supreme Court of Pennsylvania. Feb. 3, 1919.)

1. RAILROADS 386-INJURY ON TRACKSAVING OF CHILDREN-CONTRIBUTORY NEGLIGENCE.

there sufficient evidence to carry the case to the jury, assuming all the facts and inferences favorable to the plaintiff are decided in his favor, and all those antagonistic to him rejected? Tested by this rule, the facts are as follows: Defendant has freight tracks laid on Washington avenue, a public highway of the city of Philadelphia, and for many years the boys of the neighborhood, with the knowledge of defendant's employés, have been in the habit of playing on the tracks the same as in the rest of the street. The city is solidly built up for many squares every way from the point where the accident happened. On the evening of September 22, 1916, plaintiff was walking along the footway of the avenue, saw two boys, 8 or 10 years old, playing on the tracks, and cars of the defendant backing down upon them, without any lights at the rear, without warning, and without a trainman on the nearest

One struck by a train while endeavoring approaching car, though all those things to save children from probable injury due to dewere required by the rules of the defendant. fendant's negligence is not guilty of contribu- Seeing the imminent danger of the boys, he tory negligence, unless the risk would appear called to them, but they did not hear, or, so hazardous as to be condemned by the judg-hearing, did not heed him, whereupon, in orment of a prudent person.

der to save them, he rushed out on the

2. RAILROADS ~358(2)—INJURY ON TRACK-tracks, threw one boy in one direction, and

NEGLIGENCE.

A railroad backing its train in a public street, with knowledge that children were in the habit of playing upon its tracks, is required to exercise reasonable care to avoid injury.

3. RAILROADS 400(1)—INJURY ON TRACKVIOLATION OF RULE.

A violation of the rules of defendant in force when it was backing a train in a public street of a closely built part of a city on which it knew that children habitually played, was evidence of the negligence of its employés which the court could not withhold from jury.

the other in another, whereby they were both saved from injury, but he received the injuries for which this suit is brought.

The trial judge charged the jury that, if the defendant by its negligence put the two boys in serious danger of life or limb, knowing children were in the habit of playing on the tracks, plaintiff received the injury of which he complains in an endeavor to rescue the boys from the danger in which they were placed by defendant's negligence, and the risk which plaintiff took did not appear so hazardous as to be condemned by the judgment of a prudent person, he might re

Appeal from Court of Common Pleas, cover, but, if any of those elements were Philadelphia County.

missing, the verdict should be for the de

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

CAUSE."

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Ordinarily the proximate cause of the accident is the one without which it could not have happened.

fendant. This charge is in exact accord 2. NEGLIGENCE
with our decision in Corbin v. Philadelphia,
195 Pa. 461, 45 Atl. 1070, 49 L. R. A. 715,
78 Am. St. Rep. 825; and defendant, there-
fore, asks us to reconsider the conclusion
which we there announced. Further con-
sideration, however, has only confirmed our
opinion that what we there said is founded
on both reason and authority, and hence we
reaffirm it.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Proximate Cause.]

3. MASTER AND SERVANT 125(9)—KNOWLEDGE OF MINE OWNERS-SUPERINTENDENT.

[2, 3] The only other question is, therefore: Was defendant negligent so far as regards the two boys? We think, on the facts found by the jury, that it was. In North Pennsylvania Railroad Co. v. Mahoney, 57 Pa. 187, 192, we held defendant guilty of neg-lation of Act June 9, 1911 (P. L. 798). ligence because there, as here, "the train was backing in a public street of a closely built part of the city, at all times a dangerous operation, and requiring the exercise of great caution." In Dougherty v. Philadelphia & Reading R. R. Co., 171 Pa. 457, 465, 33 Atl. 340, 342, we said:

intendent of the gaseous condition of a mine is Actual knowledge by mine owners' superimputable to the owners, so as to render them liable for injuries resulting from running an electric trolley haulage system therein in vio

"A violation of the rules [of the company] in force at the time would be evidence upon the question of negligence on the part of the employés which the court could not withold from the jury."

And in O'Leary v. Pittsburgh & Lake Erie Railroad Co., 248 Pa. 4, 10, 93 Atl. 771, 772, we said:

"The permissive use of its tracks placed the defendant company in a different attitude toward the children playing upon its ground and imposed upon it different duties for their protection in its use. In moving its trains on the tracks, the defendant, therefore, did so with

4. MASTER AND SERVANT 125(6) CONSTRUCTIVE NOTICE OF GASEOUS CONDITION OF MINE.

Mine owners held to have constructive notice of the gaseous condition of mine in which an electric trolley haulage system was operated in violation of Act June 9, 1911 (P. L. 798).

5. MASTER AND SERVANT ~118(2)—MINESSTATUTORY DUTY.

There is no legal excuse for failure to obey the absolute statutory requirement of Act June 9, 1911 (P. L. 798), forbidding electric haulage systems in gaseous parts of mine except upon intake air fresh from the outside. 6. MASTER AND SERVANT 201(1)-NEGLIGENCE 15-INJURY TO SERVANT-CONCURRING NEGLIGENCE OF MASTER and FelLOW SERVANT-JOINT AND SEVERAL LIABILITY.

Where negligence of mine foreman and the the knowledge that the children of the neighbor- negligence of owner in failing to obey Act June hood had been for many years using the ground, 1911 (P. L. 798), forbidding electric haulage as a playground, and was required to anticipate in gaseous part of mine, etc., concurred in prothat they would continue to do so. This im- ducing explosion causing a miner's death the posed upon the company the duty of reasonable owner is liable under rule that those concurring care in the operation of its trains over the in negligently producing an injury are jointly and severally liable.

tracks so as to avoid injury to those who might be making a permissive use of them."

The judgment of the court below is affirmed.

(263 Pa. 486)

JARAS v. WRIGHT et al. (Supreme Court of Pennsylvania. Feb. 10, 1919.)

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Appeal from Court of Common Pleas, Allegheny County.

Trespass by Valaria Jaras against Thurs1. MASTER AND SERVANT 118(2)-MINES- Merchants Coal Company, to recover damagton Wright and A. M. Bell, receivers of the STATUTORY DUTY-VIOLATION-LIABILITY. A mine owner violates Act June 9, 1911 dict for $7,500, and from a judgment for es for the death of plaintiff's husband. Ver(P. L. 798), and, unless contributory negligence defendants n. o. v. plaintiff appeals. Reintervenes, is liable for injuries resulting therefrom, where he fails to prevent "electric haul-versed and record remitted, with directions age by locomotives operated from trolley wire to enter judgment on the verdict with perin gaseous portions of mines except upon in- mission to defendants to bring up exceptions take air, fresh from the outside." taken during trial.

(106 A.)

Argued before BROWN, C. J., and STEW-operation of the locomotive was the proxiART, MOSCHZISKER, FRAZER, WALL- mate cause" of the injury. With that conING, SIMPSON, and KEPHART, JJ.

George C. Bradshaw and Frank Thomson, both of Pittsburgh, for appellant.

clusion we cannot agree. The removal of the barricade was not the proximate cause, for the explosion would have occurred even though it had then been in place. The turn

W. Clyde Grubbs, of Pittsburgh, for ap-ing on of the current of electricity was not pellees.

the proximate cause, for the electric current could have been run indefinitely over the trolley wire and no explosion take place; so the evidence shows, and so every one knows who watches at night a trolley wire of one of our electric railways. Nor was the gaseous condition of the mine, or the presence or absence of intake air fresh from the outside, the proximate cause, for either or both could have existed in that mine and no explosion have occurred. It follows that the proximate cause must have been the running of the trolley pole along the highly charged trolley wire, just as the evidence shows and the jury found; and as it was so run in a gaseous portion of the mine, where there was no intake air fresh from the outside, defendants violated an express statu

SIMPSON, J. Plaintiff, on behalf of herself and her minor children, sued defendants to recover damages for the negligent killing of her husband. The jury rendered a verdict for plaintiff, but the court below entered judgment for defendants non obstante veredicto, and plaintiff appeals. Decedent was a miner, working for defendants in the Oreanda mine at Boswell, Pa., and near his place of work there was an electric trolley haulage system installed. On August 9, 1915, that portion of the mine was found to be gaseous, and was closed for some ten days. On August 20, 1915, work was resumed, and continued to and including August 30, 1915. On the morning of August 31, 1915, the fire boss, while making history duty which they owed to decedent, and, rounds through the mine, discovered gas in No. 8 dip entry. He noted the fact in a book kept for the purpose, barricaded that portion of the mine to prevent any one entering it, and erected thereat the usual danger notice. At that time the trolley system was not in operation. Later in the morning some one removed the barricade and the danger signal, and decedent and other miners entered No. 8 dip entry and the parts of the mine adjacent thereto. Thereafter some one turned on the current of electricity, the electric locomotive was run into the gaseous portion of the mine, an explosion occurred, and plaintiff's husband was killed.

[1, 2] Plaintiff's statement of claim sets forth as her cause of action, inter alia, a violation of article 11, § 6, of the act of June 9, 1911 (P. L. 798), which provides that

"Electric haulage by locomotives operated from a trolley wire is not permissible in any gaseous portions of mines, except upon intake air, fresh from the outside."

At the trial evidence was produced to show that this portion of the mine was gaseous; that it was not supplied with intake air fresh from the outside, but by air contaminated by being brought through other gaseous portions of the mine; and that the explosion resulted from a spark caused by the running of the trolley pole along the trolley wire.

In its opinion entering judgment for defendants non obstante veredicto, the court below states that the facts were as hereinbefore set forth, but holds that "the removal of the fence. turning on of the current, and

the jury having found that he had not been guilty of contributory negligence, they are liable to plaintiff for their dereliction of duty.

The difficulties which arise in this class of cases not infrequently result from confusing proximate cause, remote cause, negligence, and contributory negligence; yet they are essentially different things, and ordinarily can be distinguished easily as a matter of law. In the present case there are five distinct matters to be considered in solving the question as to whether or not plaintiff is entitled to a verdict, and each may be determined in and of itself, without reference to any other: (1) What occasioned the injury? In this case it was the explosion. (2) What was the proximate cause thereof? In this case it was a spark emitted as the result of running the trolley pole along the electrically charged wire. (3) Did any act or negligence of the defendants bring about that result? In this case it did, for they permitted the operation of the trolley, in violation of the statutory duty to prevent it, in gaseous portions of the mine except upon intake air fresh from the outside. (4) Did defendants violate any duty they owed to plaintiff? In this case they did, for the purpose of the act, inter alia, is to protect the miners, of whom decedent was one. (5) Did any act or neglect of plaintiff, or of decedent, contribute to the injury? In this case the jury have found that it did not. Hence, tested by the rules laid down, and under the findings of the jury, plaintiff was entitled to recover, just as she would have been had the several findings been set forth in a special verdict, and the judgment of the court prayed thereon.

[3, 4] If it be thought necessary, in order

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[7] At the close of its opinion the court below says:

to make the defendants liable, that it must, side the question we are now considering, be shown they knew the electric trolley sys- and, moreover, was disposed of by the verdict tem was in a gaseous portion of the mine, of the jury. and likely to be operated therein in violation of the statute, we not only have the lapse of time as bringing home constructive notice to them (Watson v. Monongahela River Consolidated Coal & Coke Co., 247 Pa. 469, 93 Atl. 495; McCollom v. Penna. Coal Co., 250 Pa. 27, 95 Atl. 380), but we have the further admitted fact that the superintendent of the mine actually knew, and his knowledge is imputed to them.

"The evidence discloses no cause of action. If it did a new trial would be granted, for the wrong issue was submitted to the jury. The reason that the verdict is excessive would not prevail."

This conclusion is predicated upon the error above quoted that "the removal of the fence, turning on of the current, and operation of the locomotive was the proximate

cause" of the injury. If all three had to be proved to be the acts of the defendants, as distinguished from those of the assistant evidence discloses no cause of action." The mine foreman, it would be true that "the trial judge, however, made no such mistake. liable here only if they were negligent in He told the jury that "defendants would be maintaining and operating an electric haul

[5, 6] We held in Jones v. American Caramel Co., 225 Pa. 644, 74 Atl. 613, that there is no legal excuse for a failure to obey an absolute statutory requirement, and that de cision is controlling in this case. If, however, it be asserted that two negligences concurred in producing the injury, one that of the mine foreman, and the other that of defendants in failing to obey the statutory requirement, the result would be the same under the familiar rule that those concurring in negligently producing an injury, are joint-age system in a place which they knew or ly and severally liable to the party injured.

O'Malley v. Phila. Rapid Transit Co., 248 Pa. 292, 93 Atl. 1014. In the present case the evidence does not show, and perhaps owing to the death of the assistant mine foreman, could not show, that he was responsible for removing the barricade and permitting the men to enter the mine; but, as stated above, the conclusion would not be altered if those facts were admitted or proved. Of course, if decedent had entered the mine knowing of the wrongful removal of the barricade, no matter by whom, he would have taken the chances of an accident, and plaintiff could not recover; but that matter is entirely be

ought to have known was gaseous, in a gaseous portion of the mine, and other than upon intake air fresh from the outside." That was the right issue to submit to them, and hence there is no reason for reinstating the rule for a new trial. Inasmuch, however, as defendants took a number of exceptions during the course of the trial, it is but proper to allow them a chance to have a review thereof by this court, if they shall be so advised.

The judgment of the court below is reversed and the record is remitted, with di rections to enter judgment on the verdict.

FRAZER, J., dissents.

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