The court in banc dismissed exceptions to the adjudication. Ralph C. Stewart, trustee, a creditor, appealed. Argued before BROWN, C. J., and MESTREZAT, POTTER, STEWART, and FRAZER, JJ. Charles C. Norris, Jr., James B. Lichtenberger, Charles B. Downs, Christian S. MacCain, Harold B. Beitler, and Ruby Vale, all of Philadelphia, for appellant. Lewis Lawrence Smith, of Philadelphia, for appellee. PER CURIAM. This appeal is dismissed on the following from the opinion of the adjudicating judge, confirmed by the court in banc, refusing to surcharge the accountant: "In the light of all the testimony the auditing judge is of the opinion that the accountant acted in this matter with common skill, prudence, and caution, and properly exercised the discretion given it by the testator, and therefore should not be surcharged." Appeal dismissed at appellant's costs. (256 Pa. 462) JITNEY BUS ASS'N OF WILKES-BARRE 1. MUNICIPAL CORPORATIONS 661(1) If from the usual manner of operating jitneys the public safety is endangered, it is the right and duty of the city to regulate them, though regulation should not be unreasonable or unduly burdensome or carried to the extent of prohibition. [Ed. Note.-For other cases. see Municipal Corporations, Cent. Dig. §§ 1432, 1434.] 2. MUNICIPAL CORPORATIONS 661(2) REGULATING OF JITNEYS-BOND. The city's regulation of jitneys may include the requirement of a bond to secure payment of such damages as may be recovered for loss of life or injury to person or property occasioned by their negligent operation, provided the bond is not prohibitive in amount or unnecessarily restricted as to the sureties who may sign it. as requiring the surety to undertake an indefinite and unlimited responsibility. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 1435.] 5. MUNICIPAL CORPORATIONS 661(2)—JTTNEYS-CONDITIONS OF BOND TRANSPORTATION OF POLICEMEN. jitneys to carry policemen and firemen in disAn ordinance requiring the operators of charge of their duties free in any vacant seats was unreasonable and unenforceable. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1435.] Appeal from Court of Common Pleas, Luzerne County. Bill in equity by the Jitney Bus Association of Wilkes-Barre and Paul Bennett and others to enjoin the City of Wilkes-Barre from the enforcement of an ordinance reg ulating jitneys. tiffs appeal. Modified and affirmed. Bill dismissed, and plain From the record it appeared that the ordinance in question was in part as follows: "Sec. 5. In order to insure the safety of the public, it shall be unlawful for any person to drive or operate such jitney automobile' or to obtain a permit therefor, unless he shall have given and there is in full force and effect at all times while such person is driving and operating such 'jitney automobile,' on file with the city council, either: (a) A bond of the owner or lessee of said 'jitney automobile with a responsible surety company or association authorized to do business under the laws of the state of Pennsylvania, in the sum of two thousand five hundred dollars ($2,500.00), conditioned that the owner or lessee of said 'jitney automobile, for which a permit has been applied, giving its manufacturer's name and number and state license number, will pay all loss or damages that may result to any person from the negligent or reckless operation of, or defective construction of said jitney automobile,' or which may arise from any violation of any provisions of this ordinance or the laws of the state of Pennsylvania. The recovery upon said bond shall be limited to two thousand five hundred dollars ($2,500.00) for the injury or death of one person, and to the extent of two thousand five hundred dollars ($2,500.00) for the death or injury of two or more persons in the same accident. Such bond shall be given the benefit of any and all persons suffering loss to the city of Wilkes-Barre and shall inure to herein provided; and suit may be brought in or damage either to person or property as any court of competent jurisdiction upon said bond by any person or persons or corporation suffering any loss or damage as herein provided. Such bond shall be approved by the city council, and the permission granted by said city council, as herein provided, shall recite that the permit is issued upon condition and in consideration of the filing of said bond. Said bond shall be a continuing liability, notwithstanding any recovery thereon, and, if at any time, in the judgment of the city council, said bond is not sufficient for any cause, the city council may require the party to whom permit is issued, as herein provided, to replace said bond with another bond satisfactory to the city 4. MUNICIPAL CORPORATIONS 661(2) council, and in default thereof said permit may REGULATION OF JITNEYS CONTINUING OB- be revoked. Or (b) a policy of insurance in a LIGATION OF BOND-LIABILITY OF SURETY. company authorized to do business in the state An ordinance requiring jitney owners to of Pennsylvania, insuring said owner or lessee give a penal bond furnished by a surety com- of said jitney automobile' against loss by reapany, and stipulating that after recovery of the son of damage that may result to the city of penal amount by reason of negligent injury, Wilker-Barre, or to any person or persons or etc., the obligors shall continue liable for addi- property from the operation of said jitney autional amounts without limit, is unreasonable,tomobile'; said policy of insurance to be in [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1435.] 3. MUNICIPAL CORPORATIONS 661(2)-REG- by reason of damage that may result to any person through the operation of the jitney. limits of five thousand dollars ($5,000.00) for any one person injured or killed, and subject to such limits for each person, a total of ten thousand dollars ($10,000.00) in case of any one It appears from the findings of the chancelaccident resulting in bodily injury or death to lor that several surety companies refused to more than one person. Said policy shall guar- insure or bond jitneys under this ordinance. antee payment of any final judgment rendered Others would do so, providing that cash or against the said owner or lessee of said 'jitney collateral to the amount thereof was furnishautomobile' within the limits herein provided irrespective of the financial responsibility of ed by the insured; while the representative any act or omission of said 'jitney automobile' of one company testified that his company owner or lessee. If, at any time, said policy wrote jitney insurance. of insurance be canceled by the issuing company, or the authority of said issuing company, to do business in the state of Pennsylvania be revoked, the city council shall require the party to whom the permit is issued, as herein pro vided, to replace said policy with another policy satisfactory to the city council; and, in default thereof, said permit may be revoked." The lower court made the following order: "It is ordered, adjudged and decreed: (1) That the bill be dismissed, with the suggestion, however, that the eighteenth section of the ordinance shall not be enforced; (2) that the defendant pay the costs, the questions involved being of a public nature and a portion of the ordinance being held invalid." Plaintiffs appealed. Argued before BROWN, C. J., and MESTREZAT, POTTER, STEWART, and FRAZER, JJ. The court below held that the eighteenth section of the ordinance, which required the operators of jitneys to carry free policemen and firemen under certain conditions, was unreasonable, but it sustained the remaining provisions. Plaintiffs have appealed, and their counsel contend that other requirements of the ordinance are unreasonable, particularly those with respect to the furnishing of a bond. [1, 2] As to the right of the municipality to regulate, in the interest of public safety, the running of jitneys, as well as all other traffic upon the public streets, we have no doubt; the only question in such case being whether the requirements of an ordinance for that purpose are reasonable, and not unduly S. S. Herring, of Wilkes-Barre, Thomas burdensome. Regulation is not to be carried Patterson, of Pittsburgh, and Roger J. De to the extent of prohibition. A jitney is an rer, of Wilkes-Barre, for appellants. John automobile, and by universal custom automoT. Lenahan, Paul Bedford, and Charles Mc- biles are permitted to use the streets of citHugh, all of Wilkes-Barre, and Alex. Simp-ies, as are other vehicles. The fact that the son, Jr., of Philadelphia, for appellee. owners of jitneys derive a profit from their operation makes no difference in their legal POTTER, J. The act of assembly of June status. Much of the traffic upon the city 1, 1915 (P. L. 685), gave to cities in Pennsyl- streets is a matter of profit directly or indivania the right to regulate the transporta- rectly to those engaged therein. The public tion of passengers and property by motor vehicles not operated on tracks. Pursuant to in commerce or industrial pursuits, no less highways are for the use of those engaged this statute the city of Wilkes-Barre passed than for pleasure cars. But if, from the usuan ordinance regulating the running of jital manner of operating certain vehicles, the neys, which ordinance, after defining a jit-public safety is endangered, the right and ney and declaring the operators thereof to be common carriers, provided for the taking out of a permit and payment of a license fee, and required the owner to furnish and keep in * * duty of special regulation is clear. Such regulation may very properly include, as in this case, the requirement of a bond to secure the payment of such damages as may be recovered for loss of life, or injury to person or property occasioned by the negligent operation of the jitney, provided the bond be not made prohibitive in its nature, either by being made too large in amount, or by being únnecessarily restricted as to the sureties who may sign it. full force and effect at all times"either a bond with a responsible surety company or association authorized to do business under the laws of the state of Pennsylvania, in the sum of two thousand five hundred ($2,500) dollars, conditioned to pay all loss or damages that may result to any person from the negligent or reckless operation of, or the defective construction of said jitney automobile, or which may arise from any violation of any provisions of this ordinance or [3] In the present case the bond required the laws of the state of Pennsylvania. * * is restricted to one furnished by a surety Such bond shall inure to the benefit of company, while the evidence shows that it is any and all persons suffering loss or damage difficult to procure such a bond from a sureeither to person or property as herein provided; and suit may be brought in any court of com- ty company. Under the circumstances, we petent jurisdiction upon said bond by any per- think the exclusion of personal sureties is son or persons or corporation suffering any loss not justifiable or reasonable. The municipalor damage as herein provided. bond shall be a continuing liability, notwith-ity is entitled to require good and sufficient standing any recovery thereon, and, if at any security, but beyond that it should not go. time, in the judgment of the city council, said The terms of the ordinance in this respect bond is not sufficient for any cause, the city council may require the party would forbid the deposit of cash, or a certiplace said bond with another.' fied check, or municipal bonds, as security by the applicant for a permit, or the acceptance as sureties upon his bond of individual free * * * Said to re An alternative requirement is that the owner furnish a policy of insurance against loss holders of unquestioned financial responsi- of February 14, 1910, between 8 and 9 o'clock, bility. We know of no other instance in which, where security is required by law to be given, an attempt has been made to confine such security to surety companies, to the exclusion of solvent and responsible personal sureties. [4] We are not quite clear as to what is meant by the requirement that "the bond shall be a continuing liability, notwithstanding any recovery thereon." If this provision means that, while the bond purports to be in the penal sum of $2,500 yet, after recovery to that amount, the obligors shall continue to be liable for other and additional amounts without limit, then the requirement is clearly unreasonable. No surety could properly be asked to undertake such an indefinite and unlimited responsibility. Aside from the particulars to which reference has been made, we see no merit in the contention of appellants. [5] The court below intimated in its opinion and decree that the eighteenth section of the ordinance was not to be enforced. With the further modification that the requirement of the ordinance restricting the surety upon the bonds to surety companies shall be eliminated, and also that the requirement that the "bond shall be a continuing liability, notwithstanding recovery thereon" shall be stricken from the terms of the ordinance, the decree of the court below is affirmed. (256 Pa. 501) SMITH v. PENNSYLVANIA R. CO. (Supreme Court of Pennsylvania. Feb. 19, 1917.) RAILROADS 333(1)—INJURY AT CROSSING -CONTRIBUTORY NEGLIGENCE. Where plaintiff just as he stepped on defendant's tracks saw the front and side of the car near him only a moment before his injury, and too late to avoid a collision, he failed to take proper precaution for his own safety, and could not recover, notwithstanding he testified that he stopped, looked, and listened immediately before attempting to cross. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1080, 1083.] by being struck by a moving car of defendant company at a street crossing in the city of Philadelphia. At the place of the accident defendant's tracks are laid on Swanson street, an unopened thoroughfare, and cross Mifflin street, an open and considerably used highway. The court below refused defendant's request for binding instructions in its favor, and submitted to the jury the question of negligence on the part of defendant and contributory negligence of plaintiff. The jury returned a verdict for plaintiff, and, upon refusal of the court below to sustain motions on behalf of defendant for a new trial and for judgment non obstante veredicto, defendant appealed. The sole question raised by the assignments of error is whether the court erred in its refusal to direct a verdict and to enter judgment for defendant. He The car which injured plaintiff was at the time being pushed southwardly on Swanson street, approaching the Mifflin street crossing. At the crossing are three tracks, one a siding and two main tracks. A light snow was falling at the time of the accident, and plaintiff testified he "stopped, looked, and listened" after passing the siding and reaching the first of the main tracks; that the car which struck him was coming from the north, and his view of the tracks in that direction was obstructed by a board fence extending within 32 feet of the railroad. also stated that at the time he stopped he neither saw nor heard the train approaching, and upon proceeding to cross to the opposite side of Swanson street was struck, immediately upon stepping on the first rail of the middle or west-bound track. On cross-examination he admitted seeing the front part and the side of the car nearest him a moment before receiving his injury, but too late to avoid the contact. He was found lying along the west side of the track, 10 or 15 feet south of the crossing, with one leg over the west rail of the westbound track, where it had apparently been run over by the train, and severed from Appeal from Court of Common Pleas, Al- the body. legheny County. Trespass by Walter Smith against the Pennsylvania Railroad Company to recover damages for personal injuries. Verdict for plaintiff of $5,000, and judgment thereon, motion for judgment n. o. v. denied, and defendant appeals. Reversed. Argued before MESTREZAT, POTTER, STEWART, MOSCHZISKER, and FRAZER, JJ. E. J. Sellers, of Philadelphia, for appellant. Linwood L. Hallman, of Philadelphia, for appellee. FRAZER, J. Plaintiff sues to recover damages for injuries sustained on the evening Defendant called a number of its employés, who were in charge of the train on the night of the accident, who testified that warning of its approach was given by ringing the bell, that lights were displayed on the front end of the car, and that the train was moving at the rate of 6 or 7 miles an hour. None of these witnesses, however, saw the accident. There is evidence that plaintiff was seen on the street near the place of the ac cident and a short time before it occurred, in an intoxicated condition; and, while he denied that he was under the influence of liquor on that evening, he admitted being in company with friends in a saloon, and taking two or three drinks of liquor. COUNT OF POLICE MAGISTRATE-AUDIT AND Audits of the accounts of a police magis- Appeal from Court of Common Pleas, Allegheny County. Assuming the truth of plaintiff's statement | 3. MUNICIPAL CORPORATIONS 172 Acthat the train was not provided with lights, and approached without warning, and also taking for granted that he was not intoxicated, his own testimony clearly establishes that he saw the car almost at the instant he was struck; consequently the conclusion is unavoidable that he failed to take proper precautions for his safety. Though snow was falling at the time, and plaintiff stated he could scarcely see the opposite side of the street, even this limited vision, considering the slow movement of the train, was ample to enable him to avoid the collision, had he stopped and looked, as he testified he did. His admission that immediately before coming in contact with the car he saw its front and side clearly indicates a failure on his part to look until too late, and that he walked directly in front of the moving train. Under such circumstances it is useless for plaintiff to say he looked and listened, and did not see the approaching train, at the time within a few feet of where he stood, which he could not have failed to both see and hear had he taken such precautions for his safety as the circumstances required. In Carroll v. Railroad, 12 Wkly. Notes Cas. 348, 349, this court said: "The injury received by the plaintiff was attributable solely to his own gross carelessness. It is in vain for a man to say that he looked and listened, if, in despite of what his eyes and ears must have told him, he walked directly in front of a moving locomotive. The same doctrine was applied in Penna. R. R. Co. v. Bell, 122 Pa. 58, 15 Atl. 561, Maryland v. Pittsburgh & Lake Erie R. R. Co., 123 Pa. 487, 16 Atl. 623, 624, 10 Am. St. Rep. 541, Blight v. Camden & Atlantic R. R. Co., 143 Pa. 10, 21 Atl. 995, and is also applicable here. The judgment is reversed, and judgment directed to be entered for defendant non obstante veredicto. (256 Pa. 410) Scire facias by the City of Pittsburgh sur settlement of account of Henry Ihrig, Police Magistrate, by E. S. Morrow, City Controller; National Surety Company, surety. Verdict for defendants and judgment thereon, and plaintiff appeals. Reversed, and a ve nire facias de novo awarded. The court below charged the jury in part as follows: "You will bear in mind that fraud is never presumed. The burden rests upon him who alleges fraud was committed, and that burden can only be discharged by proof that is clear, precise, and indubitable, and can only be established by the testimony of one witness and another witness, or the testimony of a witness and such corroborating, circumstances as are equivalent to another witness. So that you see the burden upon the city of Pittsburgh is what I have indicated. It is averred that there was fraud committed on the part of Mr. Ihrig in the obtaining of these audits prior to the last one, and that therefore the city is not bound thereby. As I said to you before, fraud is never presumed; it must be proven. The city must prove to your satisfaction by testimony which is clear, precise, and indubitable, and by two witnesses, or by one witness and corroborating circumstances equivalent to another, that he did that thing. If the city has proved that, then you can investigate these other matters. If it has not proved that, then you go no further, and will return a verdict for the defendants." The defendant presented, among others, a point for charge, which, with the answer thereto, was as follows: "Third. Fraud must be proven by the evidence of two witnesses, or by that of one witness with corroborating circumstances equal to another. "This is affirmed. I have said the same thing CITY OF PITTSBURGH v. IHRIG, Police to you in the general charge. (Exception al Magistrate, et al. lowed, and bill sealed.)" Verdict for defendants, and judgment thereon. Plaintiff appealed. Argued before BROWN, C. J., and POTTER, MOSCHZISKER, FRAZER, and WALLING, JJ. B. J. Jarrett and Charles A. O'Brien, both of Pittsburgh, for appellant. George H. Calvert, Donald Thompson, and Arthur ́G. Miller, all of Pittsburgh, for appellees. WALLING, J. On April 4, 1909, the defendant Henry Ihrig was duly appointed police magistrate of the City of Pittsburgh, and the National Surety Company, his codefendant, became surety on his bond as such magistrate. He was removed from said office July 5, 1912. During the official term he received a large number of fines, on account of which he turned over sums of money from time to time to the city treasurer. As magistrate, he kept dockets wherein should have been entered in each case the name of the offender, the nature of the charge, and the amount of fine imposed and collected, etc. The question here involved is quite largely as to the correctness of said dockets. It was the duty of the city controller to duly audit, examine, and settle the accounts of police magistrates. Section 7 of article 8 of the act of March 7, 1901 (P. L. 20 [28]), entitled "An act for the government of cities of the second class," provides, inter alia: facias, to which affidavits of defense were filed, etc., and thereupon the case went to trial in the court below. The defense was in effect that at the hearings the magistrate made pencil memoranda of the disposition of the cases; and later, before entering the same in his docket, modified the sentences imposed in numerous cases by remitting in whole or in part the fines imposed, and that in all such cases the amounts so remitted were returned to the offenders, and only the net amounts retained by the magistrate appeared upon his dockets; which, it is urged, accounts for the striking differences appearing between his dockets and those of the in"The controller shall, at the end of each fiscal spectors; the latter being made up from the year, or oftener if so required by councils, and sentences as originally imposed. This dealso upon the death, resignation, removal or ex-fense was supported largely by the testimony piration of the term of any officer, audit, examine and settle the accounts of such officer; of Mr. Ihrig, who was emphatic in the asserand if he shall be found indebted to the city, tion that he never diverted any of the city's the controller shall state an account and file funds to his own use. The evidence for the the same in the court of common pleas of the proper county, together with a copy of the of defense also tended to show a general cusficial bond of such officer, and give notice there- tom then existing among police magistrates of to him or his legal representatives, and if of that city to so modify sentences; but unany person or persons affected thereby shall be dissatisfied with such settlement he or they der such practice the changes appeared on the dockets of the magistrates and were made while the cases were still pending before them. may appeal therefrom." [1] The trial judge instructed the jury, inter alia, that said prior examinations, etc., of the magistrate's accounts constituted valid audits and settlements thereof, unless fraudulently procured; and in effect that such fraud must be established by the evidence of two witnesses, or by that of one witness and corroborating circumstances equivalent to that of another witness. According to the evidence, the city auditor, acting for the controller, did on five occasions during such magistrate's term of office examine and compare his dockets with the amounts of money turned over by him to the city treasurer, as shown in the magistrate's sworn statements, and found no discrepancies therein. However, the auditor took no testimony, and, so far as appears, made no written statement or report of such examinations, which seem to have been made at irIn this the learned judge fell into error; regular intervals whenever the magistrate for, while fraud must be established by clear had a docket completed. According to said and satisfactory evidence, it may be so esdockets and sworn statements, Mr. Ihrig re-tablished by the evidence of a single witness. ceived as fines and paid over to the city treasurer in all the sum of $1,740.75. But after his removal the city controller audited, examined, and settled the accounts of the magistrate for his entire official term, and stated an account showing that he had received as fines the sum of $6,694, and that he had turned over to the city treasurer the sum of $1,740.75, leaving a balance due the city of $4,953.25, which account was duly filed in the court of common pleas of Allegheny county, and from which defendants appealed to said court. Mr. Ihrig officiated at the Woods Run police station, and was assisted by two police sergeants, who kept written accounts of the fines imposed and collected by the magistrate, which are referred to as the inspectors' accounts. It was largely upon their evidence that the controller audited and settled the accounts as above stated, although Mr. Ihrig appeared and testified before the controller. There was also another account of said transaction brought before the controller, called "the captains' account." "True, where fraud is set up as a defense in an action of this character, the evidence to establish the fraud must be clear, explicit, and indubitable; but whether it reaches this degree or not is a question for the jury. The testimony of a single witness, even though contradicted by others, may carry conviction to the minds of the jury, and, when this occurs, the law approves and sustains." Sulkin v. Gilbert, 218 Pa. 255, 260, 67 Atl. 415, 416. See, also, Gordon v. Great Atlantic & Pacific Tea Co., 243 Pa. 330, 90 Atl. 78. The question of fraud was clearly raised by the evidence, and in our opinion the instructions as above stated with reference to the proof necessary to its establishment contitute prejudicial error. [2, 3] The controller had jurisdiction to audit the accounts of police magistrates, and while the prior adjudications made by the auditor for the controller were irregular and informal, yet, if not fraudulently procured, they would, as held by the court below, be conclusive upon the parties. They are somewhat like accounts stated; but we cannot adopt defendant's contention that such adOn the account so settled and filed by the Judications have all the conclusiveness of |