(107 A.)

On a gratuitous carriage for the sole benefit of the guest, the law requires only slight diligence and makes the carrier liable for only gross neglect, and if carriage is for sole purpose of carrier the law requires great diligence and makes carrier responsible for slight neglect, and if it is for benefit or pleasure of both the law makes carrier responsible for ordinary neglect.

tested by our recent decisions, it is plain | 4. CARRIERS 280(1, 7)—GRATUITOUS CARthey transgress the rulings there made. In BIAGE-LIABILITY FOR INJURY. cases of this character, involving alleged negligence towards children trespassers of tender years, the test is neither reckless conduct nor gross negligence, but lack of due care under the circumstances. In determining whether an employé acted in the course of his employment, the duties involved in the general scope of such employment are the criteria, and privately impart-5. CARRIERS 280(7)—GratuiTOUS CARRIAGE ed orders limiting those duties have no bearing.

-LIABILITY.

Where plaintiffs were being gratuitously carried in defendant's automobile for the benefit or pleasure of both parties, a holding that plaintiff could not recover for personal injuries when automobile driven by defendant upset, except upon proof of "wanton and willful" negligence, was

erroneous.

RIAGE
JURY.

[8] The substantial issue in this case is, was plaintiff injured through being either forced or scared from a moving train by a servant of defendant, the latter acting within the general scope of his employment and in furtherance of his master's business, or was this child hurt while attempting to 6. CARRIERS 320(15) — GRATUITOUS CARboard a moving train? A reading of the ORDINARY CARE QUESTION FOR printed testimony conveys the impression that the weight of the evidence decidedly favors defendant's contention that the accident happened in the way last mentioned, and the trial judge, who saw and heard the witnesses, evidently was strongly so impressed. If, upon a rehearing of the cause plaintiff once more recovers a verdict, and the court below again takes a like view, amount-adelphia County. ing to a conviction, that tribunal has a remedy at hand by granting a new trial,

which it should not hesitate to apply (Maloy v. Rosenbaum, 260 Pa. 466, 472, 103 Atl. 882; Hewitt v. Democratic Publishing Co., 260 Pa. 59, 61, 62, 103 Atl. 499); but it is not for us to pass upon the honesty of plaintiff's case. Our duty is simply to decide the points of law presented by the assignments of error; and these, on the present record, we must determine in plaintiff's favor.

The judgment is reversed with a venire facias de novo.

(263 Pa. 541)

CODY et al. v. VENZIE.

(Supreme Court of Pennsylvania.

1919.)

1. NEGLIGENCE 13-DEGREES.

Feb. 10,

In an action by husband and wife for injuries to wife by the upsetting of an automobile driven by defendant and in which they were being gratuitously carried, held, on the evidence, that defendant's want of ordinary care was for the jury.

Appeal from Court of Common Pleas, Phil

A. Cody against Frederick M. Venzie to redict for defendant on binding instructions cover damages for personal injuries. Verand judgment thereon, and plaintiffs appeal. Reversed, and a venire facias de novo awarded.

Trespass by Florence M. Cody and George

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

Victor Frey and Augustus Trask Ashton, both of Philadelphia, for appellants.

W. W. Smithers, of Philadelphia, for appellee.

SIMPSON, J. As the court below gave binding instructions for defendant, we must assume all the facts favorable to plaintiff to be true, and in that light we shall state them.

Defendant having occasion to go to Salem

In Pennsylvania degrees of negligence have and then to Vineland, N. J., and desiring to long been recognized.

take his wife along, at her request invited plaintiffs, who are her sister and brother

2. CARRIERS-280(7) — CARRIAGE WITHOUT in-law, to accompany them. The journey was CHARGE-LIABILITY.

made in a Ford automobile, owned and

The measure of liability of one who under-driven by defendant. On the return from takes to carry gratis is the same as that of one who undertakes to keep gratis.

3. CARRIERS

LIABILITY.

Vineland they were using a route with which defendant was not familiar, and were 280(1)-CARRIAGE FOR HIRE looking for the signboards designating the turns to be made in order to reach Camden. As they were going down hill at the rate of 25 or 30 miles an hour, defendant's wife saw a signboard, which pointed

On grounds of public policy a carrier for hire owes to passengers the duty of the greatest

care.

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

out to them that the way to Camden was [ system of jurisprudence to be easily uprooted. along a road which crossed at right angles It is true there are courts and text-writers the one on which they were traveling; she who agree with 1 Thompson on Negligence, announced the fact, and defendant, without § 19, wherein it is said: reducing the speed, at once turned his car into the new road; it upset, turned over several times, and his sister-in-law received the injuries which resulted in the present suit. Defendant's wife, who was called as a witness for him, testified that she thought he was going too fast to turn the corner in safety. The highway upon which they had been traveling continued straight on, and defendant could have used it until the speed was reduced, and then turned around and more slowly entered the new road.

different upon this whole subject of the degrees "I confess myself careless, ignorant, and inof negligence. It is plain that such refinements can have no useful place in the practical administration of justice. Negligence cannot be divided into three compartments by mathematical lines. Ordinary jurors, before whom, except in cases of admiralty, actions grounded on negligence are always tried, are quite incapable of understanding such refinements. The sound view is that the classification of negligence as gross, ordinary, and slight, indicates only that, under special circumstances, great care and caution are required, or only ordinary care. If the care demanded is not exercised, the case is one of negligence, and a legal liability is made out when failure is shown."

The trial judge being of opinion that wanton and willful negligence was necessary to sustain the action, and had not been shown, directed a verdict for defendant; the court in banc agreed with him, judgment was entered on the verdict, and plaintiffs Whether there are three or more or less appealed. At the argument in this court, | kinds or degrees of negligence, however, and counsel for appellee, whose presentation of whether there is a distinction between the case deserves high commendation, asked us to clearly set forth in our opinion whether or not different kinds or degrees of negligence are recognized in the law of this state, and, if they are, what are the rights and liabilities of carriers of passengers under the varying relations which arise.

"kinds" and "degrees" as Thompson suggests (Id. § 21), is wholly beside the question we are now considering. It must be admitted that the term "slight negligence" is inade quate to express the different kinds of negli gence often grouped thereunder; as witness the cases of an ordinary bailment for the benefit of the bailee, of a common carriage of passengers for hire, and of a common carriage of goods for hire, for each of which a different standard exists. Nor would the difficulty be much lessened if the term were subdivided into "slight negligence," "slighter negligence," and "slightest negligence," for no one would know what "slighter negligence" meant, unless some other negligence, regarding which it was "slighter," was first defined or explained. A translation of those expressions into terms of care would not remove the difficulty, for if "great care," "greater care," and "greatest care" were used, some other kind of care would have to be defined or explained before "greater care" could be understood. But, after all, the essential fact remains, there are kinds or degrees of negli gence and care which in ordinary parlance may be conveniently used, however difficult it may be, owing to the inadequacy of the English language, to phrase some of them for practical use with juries.

[1] Until that request was made, we had not supposed there was any doubt as to the answer to the first of these questions. Exactly when the equivalents for "gross negligence," "ordinary negligence," and "slight negligence" first appeared in jurisprudence is not now known, but it certainly dates well back into the Roman law. From the great opinion of Lord Holt in Coggs v. Bernard (1703) 2 Lord Raymond, 909, it is clear those expressions were well known to the commonlaw lawyers and jurists of his day, and were derived from the culpa lata, culpa levis, and culpa levissima of the civil law. That case has been repeatedly cited and followed in our courts (First National Bank of Carlisle v. Graham, 79 Pa. 106, 116; Shultz v. Wall, 134 Pa. 262, 272); and any one who will read the opinions therein, and those relating to the standard of care required of common carriers for hire (Meier v. Penna. R. R. Co., 64 Pa. 225, 3 Am. Rep. 581; McBride v. McNally, 243 Pa. 206, 89 Atl. 1131, 52 L. R. A. [N. S.] 259), of gratuitous bailments for the sole benefit [2, 3] In Cohen v. Tradesmen's National of the bailee (Todd v. Bigley, 7 Watts, 542, Bank, 262 Pa. 76, 78, 105 Atl. 43, we decided 544), of gratuitous bailments for the sole an action of negligence could not be mainbenefit of the bailor (Tompkins v. Saltmarsh, tained unless defendant owed some duty to 14 Serg. & R. 275; Hibernia Building Asso- plaintiff, either individually or as one of the ciation v. McGrath, 154 Pa. 296, 26 Atl. 377, general public. Hence, as the duty varies 35 Am. St. Rep. 828), and of licensees (Kay v. the standard of care must vary, and in turn Penna. R. R. Co., 65 Pa. 269, 3 Am. Rep. 628; the kinds or degrees of negligence must Pittsburgh, Fort Wayne & Chicago Railway vary. As carriers may be properly classified Co. v. Collins, 87 Pa. 405, 33 Am. Rep. 371; according to the relation which exists beDevereux v. Phila. & Reading Railway Co., tween them and their passengers or guests, 245 Pa. 136, 91 Atl. 235), will conclude that so the duty which carriers owe to their

fied.

(107 A.)

On grounds of public policy, a carrier | who does not understand why he should as for hire owes to his passengers a duty of the a man, and should not as a juryman, give greatest care, for he is paid to carry safely. effect to his natural sympathy for those in Gratuitous carriers are, however, in an en- distress; and his antagonism is not lessened tirely different category. In England and in by also dogmatically informing him, without this country, and in the courts which recog- explanation, that it is his duty to take the nize and in those which do not recognize law from the court, or, almost equally useless kinds or degrees of negligence, "the measure unless the reason is given, that sympathy of liability of one who undertakes to carry should not be considered in deciding the case. gratis is the same as that of one who under- Inasmuch as the reason and spirit of the law takes to keep gratis" (Massaletti v. Fitzroy, is the life of the law, the course suggested 228 Mass. 487, 118 N. E. 168, L. R. A. 1918C, would also tend to a better appreciation of 264, Ann. Cas. 1918B, 1088, and cases cited the law by the judges themselves, and would therein); and hence from the well-settled law aid in producing that uniformity and ceron the subject of bailments we may ascer- tainty so much needed in these days when tain and define the duty which the gratuitous attacks are made upon the law for no other carrier owes his guest. reason than that it restrains unlawful conduct.

In First National Bank of Carlisle v. Graham, 79 Pa. 106, 116, 21 Am. Rep. 49, and again in Woodruff v. Painter, 150 Pa. 91, 96, 24 Atl. 621, 622 (16 L. R. A. 451, 30 Am. St. Rep. 786), we quoted with approval from Story on Bailments:

"When the bailment is for the sole benefit of the bailor, the law requires only slight diligence on the part of the bailee, and of course makes him answerable only for gross neglect. When the bailment is for the sole benefit of the bailee, the law requires great diligence on the part of the bailee, and makes him responsible for slight neglect. When the bailment is reciprocally beneficial to both parties, the law requires ordinary diligence on the part of the bailee, and makes him responsible for ordinary neglect."

[4] It follows, therefore, that when a gratuitous carriage is for the sole benefit of the guest the law requires slight diligence and makes the carrier only responsible for gross neglect; if it is for the sole benefit of the carrier the law requires great diligence and makes the carrier responsible for slight neglect; and where it is for the benefit or pleasure of both parties, as in the instant case, it requires ordinary diligence and makes the carrier responsible for ordinary neglect.

We believe, however, for the reasons hereinbefore suggested, though the matter is wholly foreign to the present case, that justice would be better administered, and incidentally a better citizenship result, if juries were specifically told what were the duties and liabilities of the parties, without laying stress on the words, "great," "ordinary," or "slight," at the same time telling them why the law is so. A dogmatic statement as to what the law is, without stating the reason why it is so, receives but little heed from one 107 A.-25

[5, 6] It follows from what has been said, that the court below was clearly right in treating the case as one different from that of a carrier for hire, but it erred when it held that plaintiffs could not recover except upon proof of "wanton and willful" negligence, which is different even from gross negligence (1 Thompson on Negligence, § 20, and also when it decided there was not sufficient evidence on the real question in issue to submit it to the jury. We cannot say, as a matter of law, that defendant was exercising ordinary care when he turned his Ford car at right angles while running down hill at a speed of 25 or 30 miles an hour. Some men might believe that it would be safe so to do, while others, equally honest, would believe the contrary. Whether those who so believed would be reckless, or those who did not would be overcautious, is a matter for the jury to determine. Whether the fact that the Ford automobile is a light vehicle affects the question, whether ordinary care did not require the defendant to run straight ahead, turn around, and afterwards proceed on the crossroad, whether he made the turn because of something said or done by plaintiffs, and whether his wife's' suddenly calling attention to the signboard threw him off his guard, are also matters for the jury and not for the court. The evidence on the retrial may also raise other questions proper for their consideration upon the point at issue. If upon the whole case the jury should find that defendant was guilty of a want of ordinary care, to which plaintiffs did not contribute, they should find a verdict for plaintiffs; otherwise they should find a verdict for defendant.

The judgment of the court below is reversed, and a venire facias de novo awarded.

ing coal from a certain tract of 79 acres of land in Mifflin township, Allegheny county, and from maintaining a coal tipple, coal bins, etc., on the property of complainants and a certain public street in a plan of lots laid out on complainants' land. The bill also prays for the assessment of damages sustained by plaintiffs through the unlawful removal of coal from the property of plaintiffs, and for a decree declaring the said land company trustee for plaintiffs of the legal title, if any, acquired by it through a certain quitclaim deed from the People's Bank of McKeesport and Mary J. Kearney. *

The real question to be determined is "whether the defendants have the right to mine and remove whatever bituminous coal may yet remain under the 79-acre tract above referred to, which was covered by the deed from Richard McClure to William Stone, bearing date January 21, 1869." By the deed above stated Richtract of land containing 222 acres, more or less, ard McClure, who was the owner in fee of a in Mifflin township, conveyed to said William Stone all the bituminous coal underlying a por

3. EASEMENTS 27-EXTINGUISHMENT-UN- tion of the said land containing 79 acres, 1 ION OF DOMINANT AND SERVIENT ESTATES. rood, with all the rights and privileges necessary The merger of the dominant and servient es- for working out and mining successfully the coal tates extinguishes an easement, such as an easeunder said tract. The limits of the larger tract ment to mine and remove coal in place. and the boundaries showing crop lines of the 79-acre tract lying within it are correctly shown 4. EASEMENTS 34. MINING OF COAL IN in a draft prepared by J. H. Milholland and PLACE EXTINGUISHMENT-REVIVAL. in evidence as Exhibit 4.

After abandonment of easement to mine and remove coal in place, the separation of ownership of the estates did not revive easement, as such revival is permitted only where it is required by nature of estate, and where in interest of honest owners it should be preserved to effect a valid and legitimate purpose; the exception obtaining only where there is a strong equity and a very clear inference that parties intended to preserve the easement.

5. EASEMENTS 34-MINING AND REMOVAL OF COAL-REVIVAL.

The grantee, Stone, thereupon began mining and removing the coal under the 79-acre tract, and continued to do so until he had removed all the mineable coal which he considered could be properly and safely removed from the mine. When the work was about being finished, Stone's miners operated from the rear of the mine towards the front or mouth, removing such remaining part of the coal as they considered could be safely removed, but leaving some coal unmined within about 200 yards of the pit mouth, apparently because, being in a so-called "swamp," it could not be mined without endangering the surface.

Thereupon the mine was dismantled inside and outside; the whole plant being removed after the operations last above described, the tipple, blacksmith shop, and similar structures entire

One acquiring land subject to purchase-money mortgage and to certain mining rights and easement, and who thereafter secures quitclaim deeds for such mining rights and easement through litigation based on assertion of their abandonment, such litigation being to protect the interests of purchasers of lots from the liti-ly disappearing, and the pit mouth being closed gant, cannot, after foreclosure of mortgage, assert a revival of the merged easement, as that would be the commission of the very wrong which his own litigation sought to prevent. Appeal from Court of Common Pleas, Allegheny County.

Bill in equity by Joseph H. McClure and William McElwee, Jr., executors of Richard McClure, deceased, and Joseph H. McClure against the Monongahela Southern Land Company and others to enjoin mining operations. From a decree for plaintiffs, defendants appeal. Appeal dismissed, and decree affirmed.

by the natural processes of slipping earth and falling banks, leaving but slight evidence of its site and purpose. This final work and seeming abandonment was done in the year 1883, and thereafter no attempt was ever made to mine or remove any coal from under the 79 acres, until the attempt by the defendants, which is now sought to be restrained-a period of 33 years.

In 1902, 19 years after the cessation of such mining operations, Peter Sandomire bought the entire tract from Richard McClure; the vendor reserving and excepting therefrom the 79 acres of coal previously sold to William Stone and the mining rights incident thereto, and one other small tract which had been similarly disposed of. Sandomire gave a purchase-money

Reid, J., filed the following opinion in the mortgage and bond for the balance of purchase Court of Common Pleas :

The bill of complaint seeks to restrain defendants from entering upon, mining, or remov

money amounting to $38,850; the mortgage, however, not reserving or excepting the coal underlying the 79 acres of the mining rights appurtenant thereto.

(107 A.)

The mortgage being subsequently foreclosed resulted in the title of Sandomire and his vendees being vested in the executors of Richard McClure and Joseph H. McClure. Sandomire, the day following his purchase, conveyed the property to the Prudential Trust Company, subject to his purchase-money mortgage, and within less than three months thereafter the Prudential Trust Company conveyed it to the Monongahela Southern Land Company, which had been organized to take it over-also subject to the said purchase-money mortgage, which it assumed and agreed to pay.

The Monongahela Southern Land Company is one of the defendants in this case, and it is through its claim to the Stone rights, if any, that it induced the other defendants to attempt to again begin mining operations on the land in question. In 1907 the Monongahela Southern Land Company, being in possession of the 222-acre tract, laid out the greater portion of the tract in building lots, and also laid out and dedicated in connection with them ten public streets or avenues, including Duquesne avenue and Third street, at the intersection of which, and in the dedicated highway, the defendants have undertaken to place their tipple, coal bins, etc., and to begin the mining operations sought to be now enjoined.

The site of said operations is outside the limits of the 79-acre tract, and on a portion of the whole tract remote from the original mine opening, abandoned as stated. The distance across to the old opening would seem to be not less than 1,400 feet, and the distance to be traversed by the new entry through crop, coal and property of the plaintiffs entirely outside of the lines of the 79-acre tract, to reach the body of coal in the 79-acre tract, alleged to be yet in place, would be approximately 1,000 feet. The opening through which the defendants propose to operate has been made at the outlet of an old water course, or mine drain, which had been partially clogged or fallen in for many years, but which has been cleaned out and widened, and from which the entry has been driven that runs under Third avenue.

Defendants claim title through a quitclaim deed from the People's Bank of McKeesport and Mary J. Kearney, by which the rights of these vendors to the Stone mining rights were relinquished to the Monongahela Southern Land Company. However, the deed was made pursuant to the settlement of a bill in equity filed by the Monongahela Southern Land Company against the lessees or licensees of the grantors therein to restrain mining of coal on the smaller of the Stone tracts, upon the ground that the rights of Stone had been extinguished many years before by the abandonment by reason of exhaustion of the property in question.

The bill specifically avers the nonexistence of coal under the Stone property, the abandonment of the premises, and the danger which would result to the property of the complainants and their vendees of building lots, if mining were to be permitted to continue.

Defendants in that bill paid the Monongahela Southern Land Company $600 for coal unlawfully removed, and quitclaimed all their rights, as above stated, to end the litigation, and apparently to prevent further injuries to the surface and to the vendees of lots and the land company's remaining interest in the portion of the

plan not yet disposed of. The interest of the land company having been divested by the sheriff's sale in the foreclosure proceedings already mentioned, it now seeks to make profit, regardless of the rights of its vendees of building lots, of the public to whose use it dedicated the streets and avenues in its plan, and of the rights of Richard McClure's executors or vendees.

Discussion.

Two prominent and controlling facts are apparent in this case. One is the abandonment for more than 33 years by William Stone or his successors in title of any purpose to further operate for coal under the 79-acre tract; the other is the uniting in the Monongahela Southern Land Company, by the quitclaim deed from the People's Bank of McKeesport and Mrs. Kearney, of the dominant and servient estates, whereby the easement granted Willliam Stone with the mining rights incident thereto were thereby extinguished.

The other facts found simply serve to interpret and render more determined the central facts above stated. Doubtless a fee in the coal was granted to William Stone, and the easement to remove it would continue perpetually, if need be, to secure his rights; but having exhausted the coal, and not requiring any rights of way to pass through the McClure lands to and from other mines operated by him (there being none such), it cannot be contended that he might not abandon the premises if he chose, and he undoubtedly made the election, satisfied that all of the coal of value to him had been removed.

Does it now rest with the owner of the skele ton of that once dominant estate (the mere title, minus any valid and subsisting rights) to recall it to life and effectiveness and set it up against the servient estate? Should it be permitted as against those who, by reason of the default of the Monongahela Southern Land Company, in whose hands both estates united, were forced to acquire the title to save themselves from the result of that very default? The mere statement of the proposition presents the inequity of such a position.

[1] It is urged that equity is without jurisdiction to restrain the Monongahela Southern Land Company and its agents from beginning de novo to mine in and under the very property their predecessor in title disclaimed, and which that company itself protested had been exhausted and abandoned, because plaintiffs have not by an action at law first established a paramount title; the bill before us being styled by defendants' counsel an ejectment bill, to be dismissed for that reason.

The fact that the defendants are not in possession, and never were in possession, of the Stone mining rights (they being, by the land company's own prior bill, nonexistent), and the fact that an attempt is now being made, by the assertion of such abandoned rights, to cast a cloud upon the plaintiffs' title, is, in our judgment, ample ground for the maintenance of this bill as the only means whereby the rights of the plaintiffs, of the land company's own vendees of town lots, and of owners of the buildings placed on them, can be asserted and protected.

[2] That there may be an extinguishment of such an easement by an actual abandonment,