Error to court of common pleas, Berks | set on his property, nor was anything belongcounty. ing to him taken or injured thereby. In such cases there can be no legal injury for the erection or construction until such erection or construction has commenced. The work might have been abandoned before a beginning had been made. In such case the property owner would have had no cause for action. There is no analogy between this case and the location of a railroad over a man's land. In the latter instance the land has been taken and appropriated to public use; the right of the land-owner to sue for damages is complete, and he may recover for the location, and for the subsequent construction. Wadhams v. Railroad Co., 42 Pa. St. 303; Beale v. Railroad Co., 86 Pa. St. 509.

Action by Margaret Ziemer and others, widow and heirs of Samuel Ziemer, deceased, against the Pennsylvania Schuylkill Valley Railroad Company. Defendant appeals, its fifth and seventh assignments being: “(5)| Error in refusing defendant's second point, which was: (2) The plaintiffs' declaration sets up a reversionary interest merely to the greater portion of the property in question, and all their testimony is as to the difference in market value of the entire property, undiminished by any leasehold interest vested in other people before and after the construction of the railroad. A verdict based upon such testimony would embrace damages to which the owners of the leasehold interest The second assignment is without merit. would be entitled, and cannot therefore be The defendant company offered to prove what rendered; and, there being no evidence in they had paid to other property owners along the case on the part of the plaintiffs from the same street for the privilege of laying which the jury could assess the damages to their tracks upon it. The damages which the plaintiffs' property as described in the the plaintiffs had sustained could not be declaration, the verdict must be for the de-measured by such a standard as this. What fendant.' (7) Error in charging: Should particular owners were willing to accept, or you come to the conclusion as to a certain had accepted, from the company by way of amount which should be allowed plaintiffs, settlement or compromise, could not affect the you will add to that amount interest from plaintiffs. Aside from this, to render such June, 1885, [the time of the construction of testimony of any value, the conditions must the road,] to the present time.'" be shown to have been similar. This would involve as many issues before the jury as there were persons who had been settled with.

Isaac Hiester and Cyrus G. Derr, for plaintiff in error. B. F. Dettra and H. Willis Hand, for defendants in error.

was no objection to the evidence offered upon this point, and we must assume the verdict was only for damages to plaintiffs' reversionary interest.

The portion of the charge referred to in the seventh assignment is technically inaccurate, although substantially correct. In cases of this kind interest is not allowed as interest, but it is usual to instruct the jury to increase the damages by that amount. In other words, interest is allowed as damages. If it were otherwise, a person whose property has been taken, injured, or destroyed would not receive full satisfaction. Railroad Co. v. Miller, 125 Mass. 1; Railroad Co. v. Burson, 61 Pa. St. 369.

It is sufficient to say in answer to the fifth assignment that the learned judge below disPAXSON, C. J. This was an action brought tinctly told the jury that they were not to alin the court below against the railroad com- low compensation to the plaintiffs for any inpany by the widow and heirs of Samuel Zie-jury to the interest of their tenants. There mer, to recover damages for what are known as 'consequential injuries" resulting from the construction of defendants' road. The plaintiffs are the owners of a property situate on the corner of Canal and Bingaman streets, in the city of Reading. The road of the defendant company has been constructed at grade over the said Canal street, in front of plaintiff's property. The road takes a part of the pavement, and the track is within about 20 feet of one of the buildings, and, it was alleged, interferes seriously with the drainage, besides rendering access to a portion of the property dangerous. The title of the plaintiffs below was acquired on June 11, 1884, by descent from Samuel Ziemer, who was the husband of Margaret Ziemer, and the father of the other plaintiffs. Upon the trial below the defendant offered to prove that the route for the construction of the said road was duly located, and marked with construction stakes, prior to the time of the decease of the said Samuel Ziemer, and that therefore the action should have been brought by his personal representatives, and not by his wid- GREENWOOD v. PHILADELPHIA, W. & B. R. ow and heirs. The court rejected this offer. We think the evidence was properly rejected. (Supreme Court of Pennsylvania. March 18, The action was for consequential injuries. There was no taking of any portion of plaintiffs' property. The plaintiffs' ancestor was not injured by the setting of construction stakes in a public highway. They were not

The merits of this case-that is to say, the right of the plaintiffs to recover for consequential injuries-are ruled by Railroad Co. v. Walsh, ante, 186, (just decided.) It is unnecessary to go over the ground again in this opinion. Judgment affirmed.

Co.

1889.)

(124 Pa. St. 572)

ACCIDENTS AT RAILROAD CROSSINGS.

In an action against a railroad company for in. juries at a crossing, it appeared that the company had for some time kept a watchman there, and safety-gates, which were lowered upon the ap

proach of trains. Upon the night of the injury, | repaired. The watchman displayed no light when plaintiff, a fireman, approached the crossing and gave no warning. The hose carriage with the hose carriage, the gates were not lowered. They had become out of order that morning, and had not been repaired. The watchman displayed no light and gave no warning. The hose carriage did not stop or slacken its speed as it approached the track, and was struck by a passing train, and plaintiff thrown off and injured. Held that, notwithstanding the negligence of the company, the failure of the plaintiff to "stop, look, and listen," would bar his right to recover.1

Error to court of common pleas, Delaware county.

did not stop as it approached the track, in order to afford an opportunity to look and listen, nor did it even slacken its speed, but continued on, and was struck by the train, and the plaintiff was thrown off the carriage and injured. Under such circumstances, does the case come within the familiar rule, "stop, look, and listen?" It was strongly urged upon the argument that the rule referred to does not apply, for the reason (a) that the plaintiff had a right to rely upon the fact that the safety-gates were up, and (b) that the said rule is not applicable to towns and cities where trains are constantly crossing streets. I do not understand the law to be that when a railroad company adopts safeJ. B. & J. H. Hinkson and W. B. Broom-ty-gates or any other appliance for the protecall. for plaintiff in error. Wm. Ward, for tion of the public that the public are thereby defendant in error.

Action by Paul C. Green wood against the Philadelphia, Wilmington & Baltimore Railroad Company, to recover damages for personal injuries sustained through the alleged negligence of defendant. Judgment for defendant, and plaintiff brings error.

PAXSON, C. J. The plaintiff brought this action in the court below to recover damages for injuries received by him, and which he claims were caused by the negligence of the defendant company. The court below gave a binding instruction to the jury to find for the defendant. Under such circumstances, we must assume, not only that all of the plaintiff's testimony is true, but that he is entitled to every inference fairly to be drawn from it. The facts of the case, as we gather them from the evidence, may be briefly stated as follows: The plaintiff was a member of the Hanley hose company, in the city of Chester. On the night of March 26, 1887, he was at the hose-house, and informed one or more members that there was a fire. To use his own language: "It looked from Edgmont avenue to be over at Mr. Eyre's house, around Seventh street. That is where I seen the fire." No other person in Chester appears to have seen this alleged fire, nor was there any alarm given at any of the other engine-houses. The result of the plaintiff's announcement at the Hanley hose company's house was that the company immediately turned out. The plaintiff and one or two others got on the hose carriage, and with a spirited horse started out to find the fire. The horse was driven at a rapid rate of speed for some distance along Fifth street, and then turned up Welsh street. The railroad of the defendant company was one square from the corner of Fifth and Welsh. At the railroad crossing the company had for some time kept a watchman and safety - gates, which were lowered upon the approach of trains. Upon the night in question, when the hose carriage approached the crossing, the gates were not lowered. They had become out of order that morning, and had not been

absolved from the duty of taking any care of themselves. Conceding that the company was required to take extra precaution by reason of the gates being out of order, yet the plaintiff was also bound to do his part. He has no right to omit the ordinary precaution when approaching a railroad crossing merely because he finds the gates up. Machinery of all kinds is liable to get out of order, and may do so just at the critical moment of the approach of a train. In all such cases the safety of the traveling public requires that each party shall be held to the exercise of due care. Had this hose carriage stopped near the crossing, instead of rushing on at reckless speed, this accident would not have happened. The train could have been seen for 100 feet before the crossing was reached. If the rule to stop, look, and listen were always observed, an accident at crossings, now so frequent, would rarely occur, whether in town or country. It is difficult to see why the rule is not as important in towns and cities as in the country, where in many instances the track can be seen for a long distance. The rule itself is so valuable; is sustained by such abundant authority; and is, moreover, founded upon such excellent, common-sense reasons,

that we will neither depart from it, nor allow it to be undermined by exceptions. It is a clear and certain rule of duty, and a departure from it is more than evidence of negligence; it is negligence per se.

I have not referred to the question of the city ordinances; for, conceding the negli gence of the defendant company, the plaintiff was guilty of such contributory negligence as bars his right to recover. Nor have I discussed the numerous cases cited, as but few of them have any application to the peculiar circumstances of this case. Judgment affirmed.

Appeal of REBER.

1889.)

(124 Pa. St. 20)

Respecting the duty of a traveler about to cross a railroad track to stop, look, and listen, see Mar- (Supreme Court of Pennsylvania. March 18, land v. Railroad Co., (Pa.) 16 Atl. Rep. 623, and note; Heaney v. Railroad Co., (N. Y.) 19 N. E. Rep. 422, and note; Palmer v. Railroad Co., Id. 678; Hooper v. Railroad Co., (Me.) ante, 64; Camphall v. Railroad Co., 3 N. Y. Supp. 694.

LIMITATION OF ACTIONS-EXECUTORS. The presentation of a claim against a decedent's estate to the auditor before whom the estate is be

ing settled, under order of the orphans' court, followed by its adjudication and allowance, and a partial payment of it upon a pro rata distribution, the estate being insolvent, bars the statute of limitations as to the unpaid residue.

Appeal from orphans' court, Berks county; HIRAM H. SCHWARTZ, Judge.

Esther Reber, executrix, etc., of Samuel

Reber, deceased, presented her account for adjudication, whereupon Caroline Shucker, late widow and administratrix, etc., of Abraham K. Reber, deceased, presented a claim against the estate. As an offset thereto the accountant filed a claim for an unpaid balance of two notes executed by said Abraham K. Reber to Samuel Reber, which notes were allowed upon the settlement of said Abraham Reber's estate and a partial payment thereon made. The orphans' court rejected the offset, and allowed the claim filed by Mrs. Schucker, and Mrs. Reber, executrix, etc., appeals.

Garrett B. Stevens, for appellant. C. H. Schaeffer, for appellee.

of the orphans' court. The auditor is but the hand of that court, and his decree becomes the decree of that court. This is something more than the presentation of the claim to an executor or administrator. It is

the decree of a court of competent jurisdic

tion, and is as effectual to toll the statute the position of the court below that this was as would be a judgment at law. I concede not a reassumption to pay the notes, and that an administrator cannot make such a promise. It is not, however, a question of tion; of the establishment of the claim in the reassumption. It is a question of adjudicastatute has no application. The decree is reorphans' court. When so established, the versed, at the costs of the appellee, and the record is ordered to be remitted to the ortribution in accordance with the principles phans' court, with instructions to make disindicated in this opinion.

BUCHERT v. BOROUGH OF BOYERTOWN. (Supreme Court of Pennsylvania. March 18, 1889.)

BOROUGHS-SURFACE WATER.

highway, which was at the time of the injury in the possession of a turnpike company, and over which the borough had not assumed control.

Error to court of common pleas, Berks county; HAGENMAN, Judge. The facts appear from the following charge to the jury:

PAXSON, C. J. When Abraham K. Reber died, (April 26, 1879,) he owed his father, Samuel Reber, a certain amount of money, represented by two promissory notes, one of A borough is not liable to a property owner for $617.50, due April, 1878; the other of $100, ter, where the house is built in a ravine in the injuries to a house by an overflow of surface wadue October 20, 1878. His estate was in-course of the natural flow of the water from a solvent, and when the account of his administration was referred to an auditor, Samuel Reber presented these notes. They were adjudicated by the auditor. The sum of $295.18 was allowed and paid upon the one note, and $76.93 upon the other. Samuel Reber, the holder of these notes, died May 10, 1886. On the 20th of April, 1873, he had delivered "This action is brought by Susanna Buto his son Abraham a note or writing, under chert against the borough of Boyertown, to reseal, acknowledging his indebtedness to his cover damages which she alleges her property said son in the sum of $600. Upon the ad- has suffered from the negligence of the borjudication of the account of the executrix of ough. From the evidence it would appear Samuel Reber, the administratrix of Abraham that her husband, shortly before his death, presented this paper as a claim against the built a house on a lot in the borough of Boyestate of Samuel. This claim the executrix ertown, on what is called Philadelphia Aveof Samuel resisted, and presented the two nue;' that after his death she became the notes aforesaid, and insisted upon her right owner of this property, on the 4th of Decemto set off the balance due thereon. This claim the learned judge of the orphans' court disallowed, upon the ground that the notes in question were barred by the statute. It was decided in Keyser's Appeal, 16 Atl. Rep. 577, following York's Appeal, 110 Pa. St. 69, 1 Atl. Rep. 162, and 2 Atl. Rep. 65, that the statute of limitations cannot be tolled by anything short of a suit at law, or what is its equivalent in the orphans' court; that a mere demand upon an executor is not such equivalent, and does not toll the statute. But there was something more than a demand upon the executor in the present case. There was the presentation of the notes to an auditor appointed to make distribution of the estate of the maker of the notes; there was an adjudication and allowance of the claim, and a payment on account in pursuance thereof. The liability of the maker of the notes was thus established by the decree

ber, 1880, by purchase; and that between the 4th of December, 1880, and the 7th of July, 1881, when she brought suit, the property sustained some damage, which, according to her allegation, was caused by the neglect of the borough. The witnesses upon both sides of this case assert the fact that this house of Mrs. Buchert is built upon low ground. It is facing the turnpike, and from the point where the house is built the ground rises in both directions,-towards Gilbertville and towards Boyertown; and that the water from both these points flows as water will always run down hill-into this hollow, and formerly used to flow across the lot now owned by the plaintiff and the lots owned by Cleaver and Houck. That was the natural course of the water, and in that way it continued to flow until the Buchert house was built. The evidence is that upon the opposite side of the turnpike there is hardly any gutter whatever;

"In regard to this gutter, what is the evidence of the witnesses? Prior to the time when either Buchert or Houck built their houses, the natural flow of the water was

but the water which ran down on the oppo-jury by filling up her gutter and preventing site side of the turnpike crossed at that point, the water from flowing off. almost immediately in front of the plaintiff's house, certainly opposite the lot of either Mrs. Buchert or Cleaver, and then ran down over the lots now occupied by Mrs. Buchert and Cleaver and Houck. You have the tes-down over the lot of Buchert and Cleaver and timony of Mr. Houck that before Mrs. Buchert's house was built the water ran down along-side the house and on his lot where his house now stands, and that the gutter may still be seen there on the opposite side of his house. These are facts which have been sworn to by witnesses pretty much on both sides of this case.

Houck. Now, if Buchert put up a house at that point where the water would gather, stopping up, if you please, the natural watercourse partially, which was down over his lot, he cannot ask the borough authorities to make a drain and carry off the water for him. The testimony of Houck is that after the Buchert house was built the water was drained, as it were, towards the property, and ran down along-side the Buchert lot on his property, and when he himself built he stopped the natural flow of the water down over his lot. He made the gutter that is there. When was it made? There is no evidence as to the time when it was made by any of the witnesses, except, probably, that of Houck. Houck speaks of the gutter having been made in front of the Bucherts' house by Buchert himself, and he speaks of having made the gutter in front of his own property, and that he made the gutter up to the Engelsville road. According to the testimony of Mr. Grim and Mr. Sands-Mr. Grim was the chief burgess and Mr. Sands the street commissioner-the borough authorities did not do anything with the gutter at this point until after 1881. In 1882 they cut down the grade of that street, and made the gutters along the side. Mr. Sands says

"Now, it is claimed by the plaintiff that her property was injured by water. When and how? is the inquiry. It occurred some time during the winter of 1881. I do not remember from the evidence whether any one named any particular month, whether in February or March, but it was after there had been considerable snow. There was either a thaw or a rain, and a large accumulation of water came down, as it naturally would, from both sides of these hills or rises in the turnpike, both from Gilbertville and from Boyertown, and was all thrown into what was and still is a hollow at the point where the Buchert and Cleaver and Houck property now stand. This was in the winter-time. The ground was frozen, doubtless, and the water which had accumulated from the snow and the ice did not sink away into the earth, but gathered there. It is said in consequence of this her house was damaged. There is probably no dispute that there was some dam-that the borough authorities did nothing to age done to Mrs. Buchert's house by the water which accumulated there on that occasion. One of the witnesses says there was damage done to the amount of $500; the plaintiff says $500 or $600,-$600, and the cost of $100 to make her drain.

There

these gutters, or to that part of the street which was covered by the turnpike in front of the Buchert property. The same is the testimony of Houck. These are positive witnesses, and their testimony is of a positive character. Mrs. Buchert says the same "The next inquiry which you will have to thing,-that the borough made the gutter; make now is, how did this injury occur? but how? Her husband happened to be a You have the testimony of Mr. Houck on member of the council, and he made the gutthe part of the defendant-I do not recollect | ter in front of his house; that is all. that the witnesses on the part of the plaintiff is no reliable testimony to show that the bortestified to this that the snow was thrown ough of Boyertown did make these gutters on by Mrs. Buchert from her pavement into the either side of the turnpike in front of either gutter and the street. You have the testi- the Buchert property or of the Houck propmony of one of the plaintiff's witnesses, and erty, certainly not until 1882, when they cut also of one of the defendant's witnesses, that down the grade of that street, and in that when this water accumulated at this point, way made a gutter so as to carry off the it being the lowest point, it ran onto the water. When Buchert put up his house at Buchert pavement. The jury will recollect this point, the borough of Boyertown was not two of the witnesses testifying to that fact, bound to make a gutter to carry away the -that the water accumulated there, and was water from his premises. Until they took thrown in upon the plaintiff's pavement in hold of the street, and until they made their consequence of there having been snow shov-water-courses, the borough of Boyertown was eled from her pavement into the gutter, not liable for any damage which might result which prevented the water from flowing from the water being carried against the along the gutter. If that is so, if the plaintiff shoveled snow into the gutter, and thereby the water would not flow along the gutter, and was turned upon the pavement, then, even if the borough authorities were negligent, she could not recover; for in that case she contributed to the cause of the in

property of Mrs. Buchert; certainly not, until after they had undertaken to grade that street and fix the gutters of that street. Now, if Houck made the gutter in front of his property, and if Buchert made the gutter in front of his property, that imposed no liability on the part of the borough to keep that

gutter in repair. They were in no way bound | firmative, except so far as it is qualified in to open the gutter, deepen it, or keep it in the general charge. repair, nor to see that the houses of those persons who saw proper to build on that low, depressed place were freed of the water that would gather there. That we give you as the law which will govern you in this case. "There have been several points submitted, which I will now proceed to answer. I will take the plaintiff's points first.

666

"(1) If they find plaintiff's property was injured by the water flooding her pavement and cellar, and that this flooding was caused by the gutters not being kept properly open, the defendant is liable, and the verdict must be for the plaintiff in whatever amount the jury should find she was damaged between the 4th day of December, 1880, when she purchased the property, and the 7th day of July, 1881, when suit was brought.' This point is answered in the affirmative, except so far as it is qualified in the general charge. (2) After the borough fixes the grade of streets, and gives the line for the erection of dwellings, makes drains, and erects gutters for the carrying off of the surface water, it is bound to keep these drains and gutters in proper order and repair, so that they may at all times exercise their full capacity in the matter of drainage, whether they be originally adequate for the purpose or not.' This point is answered in the affirmative, except in so far as it is qualified by the general charge. "(3) That in view of all the testimony in the cause, if they believe the blocking or choking up of the gutters along the street on which the plaintiff's house is erected caused the water to flow over her pavement and into her cellar, and caused the injury of which she complains, she is entitled to a verdict.' The court decline to charge as requested in this point.

"(6) When the borough of Boyertown was created, by virtue of its charter, it assumed control of the streets and gutters, as well as grades and building lines, within the limits of the borough, and became ab initio responsible for the keeping in repair of the gutters made and encompassed in its limits; and the mere fact that the officers of a turnpike road were permitted to repair and keep up a portion of their road, being within the borough limits, will not excuse the borough authorities from exercising such supervision over the work as to see that it is properly done, and the authorities of the borough cannot excuse themselves from responsibility, because of the neglect of the turnpike people to keep the gutters open.' This point is answered in the negative.

"The defendant has also requested the court to charge upon a point submitted. Under all the evidence in this case, it does not appear that the plaintiff has any cause of action against the defendant, and the verdict of the jury should be in favor of the defendant.' The court decline to charge as requested in this point.

"Now, gentlemen, the case is for you. You will remember what I stated the law to be that will govern you in this case, and you will remember the facts as they appear; and, if you find that this house was built where there was a drainage from the rise of the land on both sides, the borough was not bound--if there was no gutter there to carry the water away previously, the borough authorities were not, thereupon, required and bound to make a gutter to carry the water away from the plaintiff's property. You have the testimony of Grim and Houck and Sands, examined on the part of the de"(4) If they believe from all the evidence fendant, and who stated that the borough that, had the gutters been kept properly open, never exercised any power or control over the they would have carried the water off, and gutters or water-courses that were there runprevented the overflow of plaintiff's pave- ning in front of the house from Buchert's ment, and the consequent injury to her prop-down to the Engelsville road until 1882. If erty, the plaintiff is entitled to recover.' you find in favor of the plaintiff, you will This the court decline to charge as requested. have to assess the damages at what you think ་. "(5) If the jury find that before the they were. If you find in favor of the deplaintiff's house was built the ground in- fendant, you will simply return a verdict in clined in each direction towards the spot favor of the defendant." where her house stands, and that the surface water naturally drained in that direction and down over her lot, and that the borough authorities adopted a plan and grade which changed this natural course of surface drainage and carried the water in gutters of sufficient size, which they provided and opened PER CURIAM. There is nothing in either for that purpose, past her house and down a of the specifications of error that requires a side street, and if the plaintiff's house was reversal of this judgment. The evidence was built in accordance with that plan and grade, insufficient to support a verdict in favor of and those gutters were afterwards negligently the plaintiff, and the learned judge of the allowed by the borough authorities to become common pleas should have affirmed defendand remain choked and obstructed, by reason ant's point, in which he was asked to direct of which the water backed up on plaintiff's a verdict in its favor. That, however, was pavement, flooded her property, and thereby a technical error of which plaintiff had the caused her injury, the plaintiff is entitled to | benefit, and is therefore not in a position to recover.' This point is answered in the af- complain. Judgment affirmed.

Verdict for defendant, and plaintiff takes error.

Rothermel Bros. and Henry D. Green, for plaintiff in error. J. K. Grant and H. Willis Bland, for defendant in error.