of the former will, nothing appeared as a basis for the claim that the latter will was revoked.

The assignments of error are overruled, and the decree of the court below is affirmed.

(240 Pa. 533)

KOVARIK v. LEHIGH VALLEY R. CO.

(Supreme Court of Pennsylvania. May 5, 1913.) 1. RAILROADS (§ 350*)-ACCIDENT AT CrossING-NEGLIGENCE-QUESTION FOR JURY. Where plaintiff was struck in the use of a permissive crossing by an engine of defendant moving on a dark night without a signal, the question of defendant's negligence was for the jury, though several witnesses testified plaintiff was wounded while undertaking to jump on the end of the tender.

republication must be accompanied with the on the part of the proponents is insufficient same solemnities as are required to attend in law to effectually republish the will of the execution of the will originally. Hence, January 4, 1888." With that conclusion we under our old act of 1705 (1 Smith's Laws, see no reason to differ. Nothing remains in p. 33), a will might be republished by a parol the case which calls for further consideradeclaration merely because neither signature, | tion, for, aside from the alleged republication seal, nor attestation of witnesses was necessary to its execution. But by our act of 1833 every will must be 'signed at the end thereof' by the testator or by some person in his presence and by his express direction, and 'no will in writing concerning any real estate shall be repealed, nor shall any devise or direction therein be altered otherwise than by some other will or codicil in writing or other writing declaring the same, executed and proved in the same manner as is hereinbefore provided, or by cancelling,' etc. The fourteenth section has a similar provision in respect to personal estate, with a saving in favor of nuncupative wills. Now, applying elther the statutory rule or that general one which prevails in the courts, I do not see how a written will is to be republished by parol. If signing be necessary to the execution of the will, signing must be indispensable to republication. Signature is certainly a very important part of the solemnities of execution. How can it be dispensed with in republication? It is a mistake to suppose this court had ever decided that it can." And in Neff's Appeal, 48 Pa. 501 (1865), Mr. Justice Strong said (page 509 of 48 Pa.): "A republication (of a will) by parol is no longer possible, but that is because of other provisions of the act (of 1833) which define the mode in which alone a will may be made. The sole object of the thirteenth and fourteenth sections of the act of 1833 was to prevent the possibility of revoking or altering wills by parol, except by destruction or cancellation, and this it did by requiring the in

tent of the testator to be manifested in writing."

It was unnecessary, in the present case, to decide the broad question of whether republication may be made by parol, for the court below reached the conclusion that the evidence by parol republication here presented was so uncertain, and the testimony as to what the testator did in this respect was so conflicting, that it could not be accepted as establishing a republication. He said very properly: "Evidence of verbal declaration sufficient to establish a republication should at least come within the rule of law pertaining to the reformation by parol of written contracts, which require such evidence to be clear, precise, and indubitable. If the testimony as bearing upon the question of republication was sufficient in law to award an issue, it would be the principal function of the jury to pass upon the conflicting testimony and credibility of the witnesses." But in his final conclusion the learned judge of the court below held "that the testimony in this case

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.*] 2. TRIAL (§ 256*)-INSTRUCTIONS. questions involved and affirms 11 points subWhere the court in charge presents the mitted by the defense, refusing only binding instructions, and gives an opportunity for the correction of the instructions at the close of the charge, defendant has no ground of complaint.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. § 256.*]

Appeal from Court of Common Pleas, Bradford County.

Action by John Kovarik against the Lehigh Valley Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before FELL, C. J., and BROWN,

MESTREZAT, POTTER, and STEWART, JJ.
J. Roy Lilley and Mial Lilley, both of To-
wanda, for appellant. Charles M. Culver, A.
C. Fanning, and David E. Kaufman, all of
Towanda, for appellee.

POTTER, J. In this action the plaintiff sought to recover damages for personal injuries resulting from the alleged, negligence of the defendant company. The specific act charged was the running of an engine and tender backwards at a dark hour of the night, without lights and without giving warning, over a permissive crossing, which was daily used by the public, and which the plaintiff had been in the habit of using night and morning while going to and from his work. At the place where the plaintiff alleges the accident occurred, there were five or six tracks. One of them is elevated above the others and runs for some distance on an embankment ending in a wall near which the plaintiff says the accident happened. From that point the elevated track continues upon a trestle to the coal pockets. On each

cited.

The questions involved were carefully presented to the jury by the trial judge. He called attention to the fact that plaintiff, while corroborated to some extent as to his statements regarding other matters, stood alone in his account of the accident itself and as to the precise place where it happened, while five or six witnesses who testified on the part of defendant contradicted his statement of the occurrence. ther said to the jury: "If the accident occurred as the defendant's witnesses say it occurred, your verdict must be for the defendant, because, if their story is true, there is no negligence attributable to the defendant,

The court fur

side of this elevated track there were several | ciple of the decision of Forno v. Penna. R. R., other tracks on the surface of the ground. | 234 Pa. 538, 83 Atl. 406, and the cases there There was evidence upon the part of the defendant tending to show that there was a well-defined path at this point extending over the tracks and under the first bent of the trestle, and that upwards of 200 people used this path daily. At the date of the accident, the plaintiff had been for some time in the employ of the defendant company at the coal pockets, engaged in discharging coal from the cars into the pockets. On the night of January 27, 1907, he was thus employed. Near morning, between 4 and 5 o'clock, he says he was excused by the foreman on account of sickness and left the place. He states that in going from his work at the pockets he got down on the ground upon the west side of the elevated track and proceeded in a south-and, without negligence which was the proxierly direction, walking between two tracks until he reached the path at the permissive crossing, and then turned eastwardly to cross a railroad track, but before doing so he stopped, looked, and listened, and says that he neither saw nor heard anything approaching, and then proceeded in the darkness to cross the track, and was struck by the tender of an engine running backward, and was carried some little distance down the track where his left foot was run over and cut off. Plaintiff testified that he lay by the track a considerable time when another engine passed along, but he was unable to attract the attention of the men in control. A second engine afterwards came by, and the men in charge of it heard plaintiff call and picked him up and cared for him. The men in charge of the engine which picked plaintiff up testified that after putting coal on their engine they started to the roundhouse, when a cry was heard, and they stopped and discovered that a man had been run over and his foot had been cut off. They do not say that they saw the plaintiff at any time before he was heard to cry out, nor do they say that their engine ran over plaintiff.

inate cause of the injury, there can be no recovery. If you believe their story, your duty would end there. On the other hand, if you find, in considering all the evidence in the case, that the defendant is guilty of negligence in the manner alleged, and that the plaintiff was free from contributory negligence, it would then be your duty to consider the question of damages." Throughout the charge the contention of each side was im partially presented. The facts were certainly not free from doubt, nor were the inferences to be drawn from them clear. That being the case, the court could not as a matter of law say that the plaintiff was guilty of contributory negligence.

[2] The trial judge affirmed without qualification 11 points for charge submitted by counsel for the defendant. The only points which were refused were those which prayed for binding instructions. If counsel were not satisfied with the instructions as given, or if it seemed to them desirable that the attention of the jury should be more specifically or emphatically directed to particular phases of the evidence, they should have framed and submitted additional points expressive of their wish. Opportunity for correction or enlargement of the instructions was given by the court at the close of the charge, when he inquired directly of counsel if there was anything else that they desired to have brought to the attention of the jury. No further request was made, and therefore counsel are not now in a position to complain of the charge in this respect. In none of the assignments of error do we discover anything of substantial merit. The questions involved were essentially disputed questions of fact, which could only be determined by the jury. Of the manner in which these questions were submitted by the trial judge, we do not see that the appellant has any reasonable cause to complain.

[1] The story of the accident as detailed by several witnesses for the defendant is diametrically opposed to that of the plaintiff. They say that they saw the accident; that the plaintiff was standing near an engine at the coal pockets and when it started to back away he ran after it, passed it, went to the end of the tender, and undertook to climb on, but slipped and fell under the wheels. The testimony of the witnesses raised a square issue of fact as to the place where the accident happened and as to the manner of its occurrence, which could only properly be determined by the jury. If the evidence of the plaintiff is to be credited, the use of a permissive crossing was involved, and the engine, moving quietly in the darkness without signal, came upon him at that point. His The assignments of error are overruled, testimony brings the case within the prin- and the judgment is affirmed.

(240 Pa. 553)

JOSEPH MCGARRITY & CO. v. MCMAHON. (Supreme Court of Pennsylvania. May 5, 1913.) 1. HUSBAND AND WIFE (§ 85*)-JUDGMENT NOTE-LIABILITY OF WIFE.

A wife is liable on a judgment note given by her in discharge of her husband's debt, where she gives same as an original undertaking for a valuable consideration passing directly to

her.

[Ed. Note. For other cases, see Husband and Wife, Cent. Dig. §§ 333, 336-341; Dec. Dig. 85.*]

2. HUSBAND AND WIFE (§ 85*)-JUDGMENT

NOTE ORIGINAL OBLIGATION.

Where it became necessary that defendant's husband, by reason of his conviction of homicide, should dispose of his liquor business, and plaintiff, to enable defendant to take over her husband's license and business, agreed, in consideration of her giving him a judgment note for a debt owing him by the husband, to give her credit for liquors, which she was to buy from him, and to otherwise assist her, the judgment note given by defendant pursuant to such arrangement was an original undertaking, for a valuable consideration passing directly to her. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 333, 336-341; Dec. Dig. §

85.*]

Appeal from Court of Common Pleas, Philadelphia County.

Action by Joseph McGarrity & Co. against Winifred McMahon. From an order dis

charging defendant's rule to show cause why judgment against her should not be opened and she be permitted to defend, defendant appeals. Affirmed.

From the record it appeared that Frank McMahon was the holder of a retail liquor license at the northwest corner of Second and Spruce streets, in the city of Philadelphia, and was indebted to the plaintiff in an amount exceeding $12,000, $10,000 of which was represented by a judgment note made by the said Frank McMahon in favor of the plaintiff, Joseph McGarrity. Frank McMahon was convicted of manslaughter, and the plaintiff took up with him the question of the disposition of his liquor license; arrangements were finally made between the plaintiff and the defendant, whereby the defendant, who was the wife of Frank McMahon, was

on the part of the judgment plaintiff tended to show that McGarrity had agreed that he would release McMahon from his debt, and that he would aid defendant to secure a transfer to her of the liquor license held by the said Frank McMahon, and would procure for the defendant an agreement on the part of the landlord of the premises at the northwest corner of Second and Spruce streets, to accept the defendant as his tenant upon the transfer of the license being granted, and it for liquors which she was to buy from the would agree with the defendant to give credplaintiff. Such a note as was agreed was executed by the defendant, and the plaintiff surrendered the note of Frank McMahon to Mrs. McMahon. The depositions taken on the part of the plaintiff tended to show that McGarrity had aided Mrs. McMahon in securing the transfer of the liquor license in question, that he had secured for her the possession as a tenant of the premises at the northwest corner of Second and Spruce streets, and that he had extended to her credit for liquors furnished. Upon judgment being entered by the plaintiff upon the warrant of attorney contained in the note, the defendant filed a petition, upon which a rule was granted to show cause why the judgment and depositions were taken, as above stated; should not be opened. An answer was filed

the court discharged the rule.

Argued before BROWN, MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ.

Bernard F. Owens and C. Stuart Patter

son, Jr., both of Philadelphia, for appellant. William A. Gray, of Philadelphia, for appellee.

PER CURIAM. [1, 2] While the court below gave no reason for refusing to open the judgment against the appellant, it is safe to assume that her petition was dismissed, because it appeared from the depositions that she had given her obligation to the appellee valuable consideration passing directly to her, as an original undertaking on her part, for a and not for an antecedent debt of her husband. It is for this reason that the appeal is dismissed, with costs.

(240 Pa. 454)

HARDY v. LEHIGH VALLEY R. CO. (Supreme Court of Pennsylvania. April 21, 1913.)

1. APPEAL AND ERROR (§ 729*)—ASSIGNMENTS OF ERROR-SUFFICIENCY.

to take over and have transferred to her the said business and liquor license. It was then understood between the plaintiff and the defendant, upon the execution by the defendant to the plaintiff of a judgment note for $10,000 (the one upon which judgment was entered in this case) and certain other notes aggregating over $2,000, which in all represented the indebtedness of Frank McMahon to the plaintiff, that the plaintiff Assignments of error that the court erred would surrender the judgment note made in refusing to take off a nonsuit, and that it was error to refuse to take it off, will not be by Frank McMahon in his favor. The deposi-reviewed. tions taken on the part of the petitioning defendant tended to show that no consideration, other than the surrender of the judgment note executed by McMahon, was to be given to Mrs. McMahon for the judgment note executed by her. The depositions taken

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2998, 3013; Dec. Dig. § 729.*]

2. MASTER AND SERVANT (§ 89*)—INJURIES TO SERVANT-NONSUIT.

In an action to recover for injuries to a car repairer, who was on the tracks between

certain freight cars in defendant's freight yards | 2 track that he required for his work. There for purposes of his own, and was killed by a was no toilet room west of No. 2 track to moving switch engine, the persons in charge having no knowledge of his presence, a nonsuit which he could go in case he had occasion was properly entered. to go there. Therefore, he had nothing in [Ed. Note.-For other cases, see Master and the way of duty or emergency which would Servant, Cent. Dig. §§ 153-156; Dec. Dig. require him to go west of the track on 89.*] which he was working. The defendant com

Appeal from Court of Common Pleas, Phil-pany, according to the evidence which we adelphia County. have, was to notify the men that were workAction by Lizzie G. Hardy against the Le-ing on that track, but there is no evidence high Valley Railroad Company. From an order refusing to take off a nonsuit, plaintiff appeals. Affirmed.

Ferguson, J., in entering a nonsuit in the court of common pleas, charged the jury as follows:

"Gentlemen of the jury: This matter will not be submitted to you. I will relieve you of any further consideration of the case. In my judgment, if you believed all the evidence the plaintiff has produced, there is no evidence which I could submit to you that would establish negligence on the part of the defendant.

that any one was working on that track. Therefore, it seems to me quite clear that there is no evidence to submit to you upon the question of the defendant's negligence; in other words, I have to determine that question; I have to consider the evidence carefully, and find out whether there is enough in the case which, if you believed it, would warrant a finding of negligence on the part of the defendant. I cannot find any such evidence. Therefore there is no question that I can submit to you on that point.

the deceased, Hardy, who had no occasion to go west of the track upon which he was working, who was working on the track which was incumbered with cars which were separated by spaces from four to six or eight feet, and who, if he had a sudden call of nature which required immediate attention, could have satisfied it possibly between the cars on which he was working, walking across the intervening space of eight or nine feet and in between two cars upon a track on which no one was working, thus going in a direction which was really against the direction of safety. Under those circumstances it seems to me that it was his own thoughtlessness that contributed very largely to the result. It was a very sad thing; very sad to his widow and his child.

"The defendant has asked me, therefore, to "We have had some evidence as to the enter a nonsuit on the ground that there has rules, and as to the practice and custom, and been no negligence on the part of the deas to the instructions which the foreman and | fendant shown, but counsel for the defendant inspectors had with regard to looking after call attention to another point, that is, that the safety of men who were working in the yards when trains were about to be moved. The evidence is that a man was sent down along the track on which the men were working to notify them that there was to be a movement of cars on that track, and after he did that, he removed the blue flag which had kept the engine from coming in. In this case there were no men working on the track on which the plaintiff was killed. There had been men working on that track in the previous week, but no one was working on it on the day of the accident. It might be said, possibly, that there was no occasion for anybody to go down along that track and notify the men that the cars on that track were about to be shifted, if there were no men working there. If the repairs had been completed or if the cars on that track were not to be repaired or had been repaired, it might be, under the instructions that we heard, that there was no occasion for a man to go down and give notice, because there could be no men working, and they were the only people who could expect to receive notice.

"Aside from that, you have heard enough of the conditions which prevailed to know that these were immense yards, with long tracks, and they had a good many cars upon them. There were five repair tracks. To the west of the first repair track there was a freight track, and then came the main line tracks. There is evidence that there was no business which the deceased could have had west of No. 1 track. He was working on No. 2 track; he was not working on No. 1 track. There were no materials or tools west of No.

"His daughter comes into court and asks that damages be awarded because the company failed to provide the deceased with a safe place to work. You know a large repair yard is not a place that can be made absolutely safe, and the only duty that is required of the defendant, the railroad company, is to make a place that is reasonably safe; that is to say, to do all that could be required of reasonable persons in providing safety. It could not be asked to anticipate or be expected to anticipate that a man, who had worked there for years and who was familiar with the conditions and with the practice of the yard, would walk away from a track which he knew was protected by a blue flag, and go in between cars on another track on which he saw no men working, to answer a call of nature. It was his own thoughtlessness that contributed to his death,

and I am therefore obliged to say that there [ appointment of school tax collectors in certain can be no recovery."

1. SCHOOLS AND SCHOOL DISTRICTS (§ 106*)-treasurer, a duplicate warrant for the 1912 SCHOOL TAXES-COLLECTORS.

taxes was issued to Dusman, since which The city treasurer of a city of the third date he has exercised the duties of tax colclass, who under the express provisions of act of June 20, 1901 (P. L. 578), is by virtue of his lector for the school district. On September office collector of school taxes, is entitled to col-3, 1912, upon petition of Jones a rule was lect school taxes in a school district of the sec- granted against Dusman to show cause why ond class coincident with such city, though he was elected after the approval of the act of May a writ of quo warranto should not issue, this 18, 1911 (P. L. 309), which provides for the action was regularly proceeded with so that