ants. He held that any right which the plain- | gatory on both parties. Thousand Island tiff had in the premises was necessarily de- Park Association v. Tucker, 173 N. Y. 203, rived from the tenants, as customers, and that, under the terms of the leases and the circumstances of the case, the defendant company had the right to exclude the plaintiff from the village.

65 N. E. 975, 60 L. R. A. 786. This, of course, assumes that the restriction placed upon the use and control of the highways is clearly imposed by the written contract and not left open to implication. In such case there is no occasion for the application of the technical rules of construction, invoked by the appellant to sustain his interpretation of the contract, that the covenant relating to the highways shall be construed most strongly against the owner of the premises, and that the lessee shall not be deprived of the beneficial use of the premises for the purposes specified in the lease unless such construction is unavoidable. It is equally clear that the company cannot be deprived of its control over the highways, as stipulated in the lease, on the ground that the right of way is appurtenant to the leased premises. These reasons, urged by the appellant, have no application in this case if as we hold, the contract clearly defines the rights of the parties, and grants or reserves to the owner in clear and unambiguous terms the supervision and control of the highways.

[1] We think the construction of the contract was for the court, and that its interpretation is correct. There was no question of fact to submit to the jury in construing the covenant in the lease. Its language is clear and free from all ambiguity, and hence there is no room for construction. As suggested by the court, if the plaintiff had any rights on the property they came through the lessees or tenants, as customers. This is necessarily so and must be conceded. The premises are the property of the defendant company. This includes the streets and alleys as well as the lots and the houses erected thereon. The company owned and had the control and supervision of the property. It was á mining village and was constructed for the use of the defendant company's employés working at its mines. The lease, as is apparent by its terms, was drawn not only to protect the employés, but also to retain such We have not been convinced that, under control and supervision of the property in the circumstances, the restrictions placed upthe defendant company as might be neces- on the streets and alleys of the village are sary to enable it to use the property for the unreasonable, nor that the provision of the intended purpose. With this object in view, lease imposing the restrictions offends pubthe above-recited provision was inserted in lic policy. If, as we think is apparent, these the lease. It declares in part that "any and restrictions on the use of the highways were all streets, lanes or alleys or other highways inserted in the contract for the purpose of in and about the said premises are private protecting the property of the defendant comroads and are the private property" of the pany and to secure "the peace, comfort and defendant company, and reserves to the com- safety" of the tenants, they did not invalipany "the right and authority to keep out date the lease. These were objects about and away from said premises any person or which the parties could properly contract and persons whom it may deem necessary or ex-about which they, in view of the purpose for pedient in the exercise of this reserved right which the village was constructed, might of policing the premises and for the peace, | well be expected to contract. comfort and safety" of the defendant company's tenants. This language cannot be misunderstood. It shows that both parties to the lease intended that the streets and alleys of the village should continue to be the private property of the defendant company, and that the company should determine who might make use of or be excluded from them. So far as the record discloses the lessees do not deny this to be the correct interpretation of the lease or that it does not carry out the intention of the parties, while the defendant company asserts that it does.

[2] The jury would have been justified in finding, under the evidence, that the plaintiff was delivering to the tenants an explosive for storage in their houses, which was dangerous to the tenants and injurious to defendant company's property, and which was forbidden by an order or regulation of the company. This was persisted in for such a length of time as to convince the defendant company and its officers that the plaintiff could not be trusted to go upon the premises. Such conduct clearly justified the plaintiff's exclusion from the premises, and the eviWe know of no principle of law and have dence fails to show that the defendant combeen cited to no decision which prevents the pany exercised its right, under the contract, enforcement of this contract. The parties to prohibit any person from selling and dehad the same right to contract for the con-livering ordinary merchandise on the premtrol and supervision of the highways in the ises. We may quote in this connection what village as they had to agree to the terms on was so well said by President Judge Rice which the houses and lots were held by the in an analogous case (Commonwealth v. tenants. The entire premises were the pri- Shapiro, 41 Pa. Super. Ct. 96, 101): vate property of the defendant company. It had the right to impose any lawful terms as to any part of the property, and, the tenant consenting thereto, the contract became obli

"The case presents the further question of the right of a vendor of goods to drive upon the ways for the purpose of soliciting from the tenants orders for goods. It has not been made clear that a restriction of a private way

The court below took the view that there was not sufficient evidence to show a dedication and acceptance of the street prior to the date of the incorporation of the borough in 1891, and therefore held that the plaintiff could not recover; but, in making this ruling, the learned court seems to have entirely overlooked the fact of the long-continued user of the street by the public and the legal effect thereof, under the law as established in this state.

[1] Our latest case upon the subject in hand is Ackerman v. Williamsport, 227 Pa. 591, 594, 76 Atl. 421, which, like the one at bar, was an action to recover for personal injuries occasioned by the defective condition of an alleged public highway, and where the principal defense consisted in the contention that there was not sufficient evidence to show a dedication and acceptance of the street involved. We there said:

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*

"Where dedication is once established, it becomes simply a question of acceptance by the public. Either can be established by proof of user. As against the owner of the soil, who would reassert his right in the way, an adverse user for the statutory period must be shown; all duty in connection with the way, the dedicabut as against a municipality which disclaims tion by the owner not being in dispute, acceptance by the municipality may be shown by proof of public use for a much shorter period. * In the present case the user was continued and conclusive presumption arises that the street uninterrupted for more than thirty years. was originally dedicated, and the owners of the soil are precluded from asserting any other right therein than what is common to the public. The same evidence which concludes the owners and establishes a dedication is more than sufficient to warrant a presumption of acceptance of the way by the municipality."

A

mer being mostly toward the west and of the latter toward the north) about 100 feet within the borough limits they unite with one another, and have the aspect of one unbroken way with a bend at the junctional point; the upper, or southeasterly, end of William street connects with a series of open highways in the borough, while Meadow street, from its point of union with William street, covering the before-mentioned 100 feet, leads northwestwardly out of the borough into a thoroughfare now called Oliver avenue, but formerly known as Township road, running southwestwardly into the open country; William street and the part of Meadow street here in question are popularly designated by the name of the former, and this united highway has been used by the public, generally and continuously, for travel both into and out of the borough, since 1889; it was not paved at the time of the accident, but one of the witnesses for the defendant described it as "a very fair mud street," while another said it was "a pretty safe road to drive on," adding that he "had seen lots of people drive on it, winter and summer"; the plaintiff's husband was killed when his wagon fell over an unguarded declivity at the easterly side of Meadow street, near its point of junction with William street, or between that point and Oliver avenue; this part of Meadow street is divided from the remaining portion thereof shown on the partition plan (the latter running in a southeasterly direction from the aforesaid point of junction with William street), by a hill which is alleged incapable of being graded into a useful highway, but on the other side of this hill Meadow street has been paved and sewered; the borough was incorporated in 1891, and there was testimony to the effect that every street commissioner from that time on worked upon the roadway of both William and Meadow streets in the general locality of the accident, but there was nothing to show that this was done by direction of the borough council or that money was specifically appropriated by that body to pay therefor; finally, there was evidence that the streets in question were graded by the Oliver heirs in 1889, to help bring about the sale of their property, and that certain sales did take place after 1896, [2, 3] To begin with, the initial question, in which year other plans of the respective as to whether or not there had been a dediheirs were made and duly filed of record cation, was one to be determined upon the showing both William and Meadow streets evidence in the case, and it depended largely as of their present width and otherwise as upon the intention of the Oliver heirs as before described. While William Oliver was shown by their actions in plotting and laying the only heir called as a witness, he testified out the road in question, and their subsethat "the street" (meaning thereby the com- quent conduct in connection therewith. bination of William and Meadow streets) had "Dedications have been established in every been traveled by the public continuously conceivable way by which the intention of the * The intention since it was originally graded in 1889; fur-party can be manifested. * may be established by parol evidence thermore, that it was then opened for public of acts or declarations which show an assent on use and he "drove over it the same as the the part of the owner of the land that the land public did," that is to say, his use of the should be used for public purposes. roadway was not a private one, but in com- part of the owner to dedicate, user by the pubWhere the question is as to an intent on the mon with the rest of the public. lic for a period less than that limiting real ac

When the principles just stated are kept in mind and applied to the facts which the evidence produced by the plaintiff tended to establish, it becomes apparent that the verdict rendered by the jury was sustainable upon the theory of an accepted dedication; but, since the defendant cites other authorities, including some of our own cases, to sustain its contention to the contrary, we shall give further consideration to the relevant rules of law which must guide us in determining the alleged public character of the road upon which the accident happened.

* *

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*

When the question of

tions is important as evidence of such intention, | Super. Ct. 392, 399. and as one of the facts from which it may be the real character of an alleged highway is inferred. * * No dedication is complete until acceptance by the public; but in the ab- collaterally raised, "as in an action for its sence of a statutory restriction or provision to negligent maintenance," that it actually is the contrary, the acceptance may be by the pub- an open, public way is sufficiently shown, lic at large, and need not be by * mu- "so as to shift the burden of proof," by the nicipal or corporate authorities acting on behalf facts that "it has been open and the public of the public. * * * In the absence of a statutory restriction or prohibition, it is gener- permitted or invited to use it for travel." 2 ally held that acceptance by the public may be Shearman & Redfield on Negligence (6th Ed.) shown by long-continued user without any acts § 334. or conduct on behalf of the municipal corporation. Whether the user by the public is of such a nature as to constitute an acceptance is a question of fact, depending upon the circumstances of the particular case." 3 Dillon on Municipal Corporations (5th Ed.) §§ 1079, 1081, 1086.

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"Generally an intent to dedicate land for a street or highway may be inferred where the owner suffers it to be used by the public for that purpose for a great length of time. Acceptance of a dedication may be implied from long user of the way by the public as of right," and this "has been held sufficient, * even where the effect is to hold the municipality * * responsible for injuries resulting from failure to repair. * * User may always be considered in connection with acts of the public authorities which indicate an intention to accept. The length of time necessary to raise a presumption of dedication from user depends on the circumstances of each particular case. * * The general rule seems to be that it is the intention of the proprietor of the land, rather than the time of sufferance, which must determine the fact of dedication, and hence proof of user for a period much shorter than that required to show title by prescription may be sufficient. Such use, however, ought to be for such a length of time that the public accommodation and private rights might be materially affected by an interruption of the enjoyment." 13 R. C. L. §§ 24, 25, 29.

"In such cases the owner's intention to dedicate is manifested either by his affirmative acts whereby the public use is invited and his subsequent acquiescence in such use, or by his express assent to or deliberate allowance of the use, or merely by his acquiescence therein; but, generally, the law regards the user as mere evidence, and, accordingly, where it is sought to establish an intention to dedicate from the fact of user, all the circumstances have to be looked at to see whether they disclose such an intention. * The weight of authority is to the effect that acceptance may be predicated on user, and the general current of modern authorities sustains the proposition that dedication may be accepted merely by long-continued public user, without any formal act of acceptance, even to the extent of charging the public authorities with liability for failure to keep in repair." 8 R. C. L. 16, 25.

It will be observed that the above quotations sustain the law as laid down by this court in Ackerman v. Williamsport, supra, and our attention has not been called to any Pennsylvania authority in conflict therewith. The report in Steel v. Huntingdon Borough, 191 Pa. 627, 43 Atl. 398, indicates that the plaintiff depended upon proof of municipal acts of some sort to show acceptance, and not, as here, upon long-continued user; hence all we there said must be considered with this distinction in mind.

Moreover, the case last cited must now be

read in connection with Ackerman v. Williamsport, supra, and Grant v. Dickson City Borough, 235 Pa. 536, 84 Atl. 454, where we again recognize that the acceptance of a dedication may be shown by user of long duration. Weiss v. South Bethlehem Borough, 136 Pa. 294, 20 Atl. 801, explaining Commonwealth v. Cole, 26 Pa. 187, in no wise conflicts with the law as announced in Ackerman v. Williamsport, supra. Steel v. Huntingdon Borough, supra, and Grant v. Dickson City Borough, supra, both state that proof of repairs made by a street commissioner upon an apparently open highway, even when accompanied by municipal payment of expenses thus incurred, is not, per se, sufficient, but that, to prove acceptance of an alleged dedication, there must be also proof that the municipal council had ordered, or, at the time, was aware it was in fact paying for the particular repairs in question; but in each of those cases the plaintiff depended upon implied acceptance through municipal acts and not, as here, upon longcontinued public use of the street. In the present case, although the evidence concerning the work done upon the roadway by the various commissioners may not have been sufficient in itself to show acceptance of the alleged dedication, yet in connection with the proof of user, the continued making of See, also, sections 18-20, 22-24, and 27-29, for useful discussion upon the subject in repairs by the successive street commissionhand, containing statements of law consist- ers was some evidence for the jury to conent with the above-quoted excerpts. Finally, sider in determining whether or not the see section 30, which treats of the distinc- public generally looked upon and treated tion between those cases where a prescrip- this alleged street as an open, public hightive right in a highway is claimed, requiring way; but, of course, in this class of cases, proof of 21 years' exclusive and adverse user by the public, and the other class of cases, in which the effort is to establish dedication and acceptance, where the proof of user may be for a less period; in this connection, see opinion by President Judge Rice

the evidence depended upon to show the character of the highway, when taken as a whole, must be clear and convincing in order to sustain a verdict against the municipality. Verona Borough v. Allegheny Valley R. R., 152 Pa. 368.

to justify a conclusion that the original own- | Her right to recover compensation in the acers, when they opened the road, intended to tion is not questioned. The only complaint set it apart for public use (as it is in the is that the jury was permitted, on insufficient present case), then the fact that, at the place evidence, to consider as an element of damin question, there was no municipal corpo- age the impairment of the plaintiff's earning ration then existent, will not defeat the capacity. It cannot be said that the evidence dedication, for, upon such corporation com- on this branch of the case was so lacking as ing into existence, it could take advantage not to afford a basis from which the plainof the situation. 3 Dillon on Municipal Cor- tiff's earning capacity could be fairly estiporations (5th Ed.) § 1086; Klinkener v. Mc- mated. If it measured up to this degree, Keesport School Directors, 11 Pa. 444, 449. though it left something to be supplied by There is only one assignment of error, and speculation as to probabilities, the amount that complains of the action of the court be was for the jury's determination. So much low in entering judgment for the defendant must be trusted to the jury to work out in a n. o. v.; hence neither the manner in which way not at variance with ordinary observathe case was conducted at trial nor the form tion and experience. When the verdict is not in which it was finally submitted to the jury in accord with these, the correcting power is before us for review at the present time. is with the court. The governing rule is that On the record as brought here the sole, ulti- the evidence must be such as will enable the mate question upon which we have to pass jury to deduce a rational inference therefrom is merely this: Under the law, was there with respect to the matter involved. The evisufficient evidence to support the verdict ren- dence in this case disclosed the following dered by the jury? As already indicated, facts: The plaintiff sustained her injuries this must be answered in the affirmative, be- October 8, 1912. She was then about 58 years cause, on the controlling points discussed in of age, of sound bodily health and vigor. She this opinion, i. e., dedication and acceptance, was then, and had been for several years, the plaintiff made out a prima facie case, engaged in the business of entertaining sumand the defendant presented no evidence suf-mer boarders and transient guests in a home ficient to overcome it.

The assignment of error is sustained, the judgment reversed, and the record remitted to the court below, with directions to enter judgment on the verdict in favor of the plaintiff.

(255 Pa. 452)

KERR et al. v. FRICK.
(Supreme Court of Pennsylvania. Jan. 8, 1917.)
DAMAGES 186-EVIDENCE-LOSS OF EARN-
ING CAPACITY.

of her own near Cambridge Springs, where she had accommodations for upwards of 20 persons. She not only superintended the business, but gave a helping hand in all the details of the work incident. She was an experienced cook as well as general housekeeper, and the customary wage paid one in the former capacity was shown. Some time after the accident, she discontinued keeping boarders and entertaining the public, and while it does not definitely appear that this was because of her physical impairment, such fact is fairly deducible from the evidence. attempt was made to show loss of profits or earnings by reason of this discontinuance; the evidence touching the keeping of boarders was introduced-and so guarded by the court merely to show what she was capable physically of doing prior to the injury. Evidence Appeal from Court of Common Pleas, Al- was submitted as to the extent of her injury. legheny County.

A showing that plaintiff when permanently injured was in good health and had previously been engaged in taking summer boarders and transient guests, and that after the accident she discontinued such business, furnished sufficient data for an award of damages for loss of earning power.

[Ed. Note. For other cases, see Damages, Cent. Dig. § 509.]

Action by Lizzie W. Kerr and Edward C. Kerr, her husband, against Henry Clay Frick. Judgment for plaintiffs, and defendant appeals. Affirmed.

Argued before BROWN, C. J., and MESTREZAT, POTTER, STEWART and FRAZER, JJ.

Stephen Stone, of Pittsburgh, for appellant. Thomas M. Marshall and Thomas M. Marshall, Jr., both of Pittsburgh, for appellees.

STEWART, J. The verdict establishes the fact that the plaintiff sustained her injuries either through the negligence of the defendant's employé in operating the elevator on which she was a passenger, or in consequence of the elevator not being in proper repair.

No

With

She herself described it, and in addition there
was the testimony of the several physicians
who had attended her professionally as to
the physical impairment she had sustained
and the permanency of her injury.
these for a criterion the test remaining would
have to be supplied from the observation, ex-
perience, and intelligent judgment of the ju-
rors themselves. In every case of this kind
there must be more or less left for the sound
discretion of the jury. We are of opinion
that the evidence furnished sufficient data for
an intelligent conclusion with respect to the
loss of plaintiff's earning capacity. The case
bears close analogy to Malone v. Pittsburgh
& Lake Erie R. R., 152 Pa. 390, 25 Atl. 638.
The assignments of error are not sustained,
and the judgment is affirmed.