BEACH, J., concurred in so far as the opinion concerns the answers to be returned to questions 1, 3, and 4, but dissented from the conclusion that question 2 be answered in the affirmative. (264 Pa. 98) ANDERSON v. WOOD. to so control his approaching automobile as not OF STREET-AUTOMOBILES-CARE REQUIRED. While an automobile may have a slightly superior right of way between crossings, or the measure of care may not be as high as at regular crossings, yet when a driver sees, or with (Supreme Court of Pennsylvania. March 10, reasonable care might see, a pedestrian in time to avoid a collision, he must do so, and if he Appeal from Court of Common Pleas, Philadelphia County. Trespass by Blanche E. Anderson, administratrix of the estate of John A. Anderson, deceased, against Thomas D. Wood, to recover damages for personal injury. Verdict and judgment for plaintiff for $3,500, and defendant appeals. Affirmed. Argued before BROWN, C. J., and MOSCHZISKER, FRAZER, WALLING, and KEPHART, JJ. Francis B. Bracken, Sheldon F. Potter and C. C. Norris, Jr., all of Philadelphia, for appellant. Thomas F. Gain, Francis Shunk Brown, and Ira Jewell Williams, all of Philadelphia, for appellee. KEPHART, J. [1] "Vehicles have the right of way on the portion of the highway set aside for them, but at crossings all drivers, particularly of motor vehicles, must be highly vigilant and maintain such control that, on the shortest possible notice, they can stop their cars so as to prevent danger to pedestrians; on the other hand, between crossings drivers are not held to the same high stand It was not negligence for a pedestrian to attempt to cross a street when defendant's automobile was approaching about 100 feet away; and, if he did not use due care, after leaving the sidewalk, it was for defendant to show negard of care, although, of course, they must ligence, unless it appeared from plaintiff's evi- be constantly on the lookout for the safety of dence. 5. DEATH 58(1) — NEGLIGENCE OF PEDESTRIAN-PRESUMPTIONS. others." Vir [2, 3] Where a pedestrian traverses a public highway between the regular crossings, he is bound to a high degree of care. agilio v. Walker & Brehm, 254 Pa. 241, 98 Atl. 815. "Pedestrians are not restricted to the use of established street crossings when they attempt to pass from one side of the street to the other. They have a right to pass at whatever point they elect." Watts v. Plymouth Borough, 255 Pa. 185-188, 99 Atl. 470. A pedestrian cannot be held to be negligent by the court, as a matter of law, when he attempts to cross a street between An administratrix, suing for injury to her husband by an automobile while crossing street, did not have to show that he looked from right to left after he left the sidewalk, but was entitled to the presumption that he did what a prudent man would do under the circumstances until the accident occurred. 6. MUNICIPAL CORPORATIONS 705(5)-COLLISION WITH AUTOMOBILE-Negligence. Where a pedestrian with due care started to cross a street, it was the duty of defendant (107 A.) or the regular crossings, but in exercising this [ ular line of travel), it becomes his duty to right he must have due regard to the condi- so act, and if he fails to perform this duty tions of the traffic before he enters the cart- he will be liable for such damage as may be way. If he deliberately attempts to cross the occasioned as a result of his failure. street when vehicles are rapidly approaching close by, and injury results, ordinarily, he will be chargeable with such carelessness as to prevent a recovery of damages; but, having observed the traffic, and it being far enough away that a pedestrian using due care would deem it safe to go across in front of the approaching traffic, he is under no fixed duty to look back, though the circumstances may be such that in the exercise of due care it would become his duty to so look, and it would be negligence for him to disregard it. [4-6] In the case under consideration, when Anderson, the man who was injured, was seen in the cartway, the appellant's automobile was more than 100 feet away from him, approaching on the side of the street Anderson was then crossing. No machine vehicle was between the driver of the car and the pedestrian; each had an unobstructed view. It was not negligence for Anderson to attempt to cross, and that he did not use due care after leaving the sidewalk was for the defendant to establish, unless it appeared from appellee's evidence. It was not necessary for the appellee to show that Anderson, who is now dead, looked from right to left after he left the sidewalk. She is entitled to the presumption that deceased did that which a prudent man would do under the circumstances, and that he continued to do so until the accident took place. Having, without fault on his part, committed himself to the act of crossing, it became the duty of appellant to so control his car as to do no injury to the pedestrian, who was on the cartway a sufficient length of time to be seen, the driver of the car being far enough away to bring his machine under control. This the driver did not do, and his neglect caused the accident. [7] While an automobile may have a slightly superior right of way between crossings, or the measure of care may not be as high as at the regular street crossings, this does not give automobile drivers a license to run down a pedestrian who may be seen more than 100 feet away. When circumstances such as these are presented, it is the duty of the driver to operate his car with care and attention to the safety of persons upon the highway. When he sees, or with reasonable diligence could have seen, the pedestrian in time to so operate his car as to avoid accident (the car not being fixed to any partic With these statements of the principles of law, a glance at the facts will show that the action of the court below in refusing to enter a judgment for the appellant was proper. John A. Anderson started to cross Market street at a point between 80 or 90 feet from the easterly line of Ninth street as it intersects Market street. He was first seen, after he had left the north curb of Market street, about two paces therefrom. He was walking across the north cartway of Market street in a diagonal or southwesterly direction. He proceeded in this direction until he reached a point about 15 or 20 feet east of the easternmost post of the danger zone, which extended from Ninth street along the street car tracks on Market street, and he was about 6 or 7 feet from the west-bound track, when the accident occurred. There were no vehicles to obstruct his view nor the view of the driver. It does not appear that he looked to the right or left after he started to cross Market street, apparently to the safety zone, nor does the contrary appear. The officer who saw the accident stated that, when he first observed Anderson, the latter was looking in the direction in which he was going. The distance to be covered was not more than 20 to 25 feet, and there was room between the pedestrian and the curb for the automoblie to have passed without doing any injury. Appellant's evidence as to the happening of the accident is in clear contradiction to that of the appellee's, and, if believed by the jury, should have relieved the former of all liability; but that body has determined the questions involved adversely to appellant, and there are no errors of law that justify us in disturbing the judgment on the verdict. While there was no direct evidence as to speed, there was evidence on the part of the appellant that the car did not change its speed from the time it was seen over 190 feet from the eastern line of Ninth street, when it bore down on Anderson, striking and carrying him some few feet; this was for the jury. [8] Speed is not the only element that enters into the question of negligence, and, regardless of it, a car may be under such imperfect control as to amount to negligent operation, and evidence of it would sustain the charge of negligence. The judgment of the court below is affirmed at the cost of the appellant. (264 Pa. 105) HATCHER et al. v. HATCHER. (Supreme Court of Pennsylvania. 1919.) said Charles W. Hatcher that he would reconvey to her the aforesaid premises at any time that she should make demand therefor, March 10, it having been expressly agreed between said Mary M. Hatcher and the said Charles W. Hatcher that the said real estate was the property of the said Mary M. Hatcher, and that the legal title should be in the said Charles W. Hatcher's name, until she should demand reconveyance therefor, and that she, the said Mary M. Hatcher, was the real owner and the equitable title therefor should be and remain in her." This averment, except as to the execution of the deed by the complainants' mother, was specifically denied in defendant's answer. After hearing on bill and answer and testimony taken, the court below decreed that "the defendant, Charles W. Hatcher, holds the title to the premises, 3538 North Broad street, Philadelphia, in trust for the plaintiffs' Mabel B. Hatcher, Florence D. Kreibel, and Clifford Hatcher," and he was "ordered and directed, within 30 days from the service of the decree, by good Appeal from Court of Common Pleas, Phil- and sufficient deed to convey the said premadelphia County. Bill in equity for a conveyance of land by Mabel B. Hatcher and others against Charles W. Hatcher. From a decree for a conveyance, defendant appeals. Affirmed. ises" to the plaintiffs in fee simple. real estate to her son Charles for what she It seems that Mrs. Hatcher conveyed the She had incurred certain liabilities for anregarded as a measure of self-protection. other son, and felt that she might avoid inArgued before BROWN, C. J., and MOSCH-curring any more by making the conveyance ZISKER, FRAZER, WALLING, and KEP- to the son Charles. It is to be fairly found HART, JJ. from the testimony that this was the reason the conveyance was made. George A. Welsh, of Philadelphia, for appellant. Abraham Wernick, of Philadelphia, for appellees. BROWN, C. J. On December 2, 1914, Mary M. Hatcher executed a deed to her son, Charles W. Hatcher, for certain real estate situated in the city of Philadelphia. She died a year later, and in her will, duly admitted to probate, her son, Clifford, and her two daughters, Mabel B. and Florence D., now Mrs. Kreibel, were named as residuary legatees and devisees. Upon the refusal of their brother, Charles to convey to them the real estate for which he holds the deed from their mother, this proceeding was instituted by them to compel him to do so, on the ground that the equitable title remained in her at the time of her death, and passed to them, as her residuary devisees. The averment in their bill, asking for a decree that the defendant be ordered to convey the premises to them, is that the said Mary M. Hatcher, being seized of the premises in question, "executed a deed of conveyance to her son, Charles W. Hatcher, on the 2d day of December, 1914; that said conveyance was without consideration, and was made and executed by the said Mary M. Hatcher under the express agreement and promise by the The decree of the court below followed the finding: "That the said Mary M. Hatcher, being so seized [of the premises in question], executed a deed of conveyance to her son Charles W. that said conveyance was without consideration, Hatcher on the 2d day of December, 1914; and was made and executed by the said Mary M. Hatcher under the express agreement and promise by the said Charles W. Hatcher that he would reconvey to her the aforesaid premises at any time that she would make demand therefor, which agreement and promise, were inducements for the conveyance, and without which the conveyance would not have been made to Charles by his mother; it having been expressly agreed by the said Charles W. Hatcher that the said real estate was the property of the said Mary M. Hatcher, and that the legal title should be in the said Charles W. Hatcher's name until she would demand reconveyance therefor, and that the said Mary M. Hatcher was the real owner and the equitable title therefor should be and remain in her." This specific finding has not been assigned as error. The legal conclusion which followed it was: "The said Charles W. Hatcher holds the premises 3538 North Broad street as trustee ex maleficio for the estate of Mary M. Hatcher, deceased.” (107 A.) The contention of the appellant is that, | agreement by the mother that her equitable even under the facts found, he cannot be re- interest in the premises should merge with garded as a trustee ex maleficio, within the the legal title in her son is within the statproviso of section 4 of the act of April 22, ute of frauds, for “it has been uniformly held 1856 (P. L. 533); "that where any conveyance that an equitable interest is an interest in shall be made of any lands or tenements by land which comes within the words and spirwhich a trust confidence shall or may arise it of the statute of frauds. * * Conor result by implication or construction of tracts for the equitable interest stand now belaw, or be transferred or extinguished by act yond a doubt upon the same footing as conor operation of law, then and in every such tracts for the legal interests." Meason v. case such trust or confidence shall be of the Kaine, 63 Pa. 335. like force and effect as if this act had not been passed." The assignments of error are all overruled, and the decree is affirmed, at appellant's costs. (264 Pa. 146) BIRMINGHAM v. WIGMAN et al. (Supreme Court of Pennsylvania. March 10, 1919.) 1 1. JUDICIAL SALES 61 ACKNOWLEDGMENT OF SHERIFF'S DEED-PENDING EXCEPTIONS STATUTE. Under Act April 22, 1905 (P. L. 266) § 4, an acknowledgment of a sheriff's deed will be set aside, where exceptions to the sheriff's sale were pending when the acknowledgment was made. [1] The title procured by the appellant from his mother undoubtedly passed to him by reason of her confidence in him, and upon his abuse of that confidence, in refusing to reconvey the property as part of her estate at the time of her death, passing to the ap- IRON & GLASS DOLLAR SAV. BANK OF pellees, he converted himself into a trustee ex malefico. "The statute which was intended to prevent frauds turns against him as the perpetrator of a fraud." Seichrist's Appeal, 66 Pa. 237. The broken agreement or promise of the appellant was made at the time his mother executed the deed to him, and was the inducement to its execution; and if he could now profit from his bad faith, the act of 1856, which is intended to prevent fraud, would itself become the instrument for the perpetration of it. Under the proviso in that act, the unkept promise of the appellant made him a trustee ex maleficio. McCloskey v. McCloskey, 205 Pa. 491, 55 Atl. 180. This need not be further discussed, for the defendant admitted in his own testimony that the understanding between him and his mother at the time she executed the deed was that he should hold the title for her protection, and not as the absolute owner of the property. The deed cannot stand against the appellees, the successors in title to their mother, for their brother has himself overthrown it. Morrish v. Morrish, 262 Pa. 192, 105 Atl. 83. [2] The court below found that in August, 1915, appellant's mother verbally assented to his retention of the property as his own, and this finding is urged as a reason for the reversal of the decree. It was coupled with the additional finding that "The evidence as to what the consideration was for the release of the trust under which Charles held the property is vague and far from being clear, precise, and indubitable, and no change of possession of the real estate was made." The defendant never had possession of the premises in question; his mother, during her lifetime, collected the rents, made the repairs, and paid the taxes, and after her death her executrix did the same. At no time, either before or after her death, did the appellant ever ask for an accounting of the rents. This being the situation, the verbal 2. MORTGAGES 530 RESALE VACA Owner of second mortgage, purchasing the first mortgage, and prevented by rule of fuel property at a sheriff's sale on foreclosure of administrator as to operation of elevators from reaching sheriff's office with attorney at hour when purchase money was to be paid, on showing that he had the money with him, was 86 years of age, and entered into bond with sheriff to bid over the bid at the resale, was entitled to a vacation of the resale. 3. MORTGAGES SALE-TERMS. 530 VACATION OF RE Such second mortgagee, on vacation of resale, would be required to pay the purchaser thereat for loss resulting from his payment to sheriff of amount of his bid. Appeal from Court of Common Pleas, Allegheny County. Proceeding by the Iron & Glass Dollar Savings Bank of Birmingham against Gwendolen P. Wigman and William H. Wigman. From an order setting aside sheriff's sale in the case on the exceptions of William H. Wigman, B. C. McClure, and others appeal. Appeal dismissed. Shafer, P. J., filed the following opinion in the court below: [1, 2] In this case exceptions were filed to the sheriff's sale, and afterwards a deed was acknowledged notwithstanding the filing of these exceptions, and the exceptions were then re For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes newed to the acknowledgment of the deed. The act of April 22, 1905 (P. L. 265), regulating sheriff's deeds provides in section 4 that no deed shall be acknowledged pending a motion to set aside the sale of exceptions made to its confirmation. This puts upon the sheriff the necessity of ascertaining before he acknowledges a deed whether such exceptions are pending or not, and the acknowledgment must therefore be set aside as being prematurely made. Argued before BROWN, C. J., and STEWART, FRAZER, SIMPSON, and KEP. HART, JJ. John C. Bane, of Pittsburgh, for appellants. W. H. Lemon and J. Rodgers McCreery, both of Pittsburgh, for appellees. PER CURIAM. This appeal is dismissed, at the costs of the appellants, on the opinion of the learned president judge of the court below, in pursuance of which the sheriff's sale was set aside. (264 Pa. 93) MINUTE et al. v. PHILADELPHIA & R. 1919.) 1. RAILROADS 276(3) March 10, DUTY TO INFANT The exceptions to the sale are founded upon this state of facts: The Iron & Glass Dollar Savings Bank had a mortgage of $10,000 on the property in question, which was a first lien thereon, and William Wigman, the exceptant, had a mortgage for $6,000, which was the second lien on this property. Upon the fi. fa. in this case issued on the judgment on the bond accompanying the first mortgage, the property was sold at sheriff's sale on the first Monday of September, 1918, to William Wigman for $12,800. The (Supreme Court of Pennsylvania. terms of the sale were those usual in this county, and included the requirements of payment of the purchase money on or before the following Friday at 10 o'clock a. m. Mr. Wigman, who is a man of 86 years of age, went It is the duty of trainmen, observing a from his home on the South Side in Pittsburgh small boy who has climbed on a car in the on the morning of the Friday following the train, not to start the train until he has alightreturn day, having with him a certified check ed, or, if the train is moving, or about to start, for ten thousand odd dollars, being enough to not to frighten him or force him to alight. pay the first mortgage and costs, he being the second mortgagee and therefore entitled to pay 2. RAILROADS 282(10)-INJURY TO INFANT the balance of his bid with his mortgage. He TRESPASSER ON CARS-QUESTION FOR JURY. endeavored to go to the office of his attorney, Where there was evidence that a boy nine Mr. W. H. Lemon, in the Frick building next years of age, who had climbed on a car in a to the courthouse, for the purpose of having train, was ordered off by a brakeman, who him go with him to make payment. At that threw a piece of coal at him as he was getting time, under the orders of the United States off, when the car gave a bump and he fell, the fuel administrator, elevators were not started in railroad's negligence was for the jury. the Frick building and other office buildings un-3. APPEAL AND ERROR til 10 o'clock, and there was a very large number of people waiting to be carried up in the elevator. In consequence, Mr. Wigman did not get to his attorney's office until about 20 minutes after 10, and by the time his attorney reached the sheriff's office, or the office of Mr. McCreery, the attorney for the plaintiff in the writ, it was discovered that the property had been sold for $12,800. The exceptant offers to bid $15,000 and has filed a bond with the sheriff to make good his offer if the property is resold. It appears, whether the purchase at the second sale was originally intended to be so, it is now to be treated as being made for the benefit of some relative of the defendant Gwendolen P. Wigman, who is a daughter-in-law of the exceptant. We are clearly of opinion that it would be a gross injustice to allow this sale to stand under the circumstances. [3] It appears from the evidence that the purchaser at the second sale procured a loan from the Potter Title & Trust Company, and paid into the sheriff the amount of his bid. He has therefore been at some expense, at least the interest on the amount, since it was paid. We are of opinion that the exceptant ought to pay to the purchaser some compensation for a loss which he would otherwise incur. We are of opinion that the sum of $100 is sufficient for this purpose. The sale will therefore be set aside, provided the exceptant pay to the prothonotary for the use of the purchaser the sum of $100 within one week after notice hereof. (4)-REVERSAL-VARIANCE. 197(1), 236(2), 719 A judgment and verdict against railroad in action for personal injury will not be reversed for admission of evidence alleged to be a variance with averments of statement, where there was no trial objection to its admission, no motion to strike out or for a nonsuit, and no assignment of error raising the question of variance. 4. RAILROADS 282(5)-INJURY TO INFANT TRESPASSER ON CARS-ACTS OF EMPLOYÉ— EVIDENCE. In an action for injuries to a small boy who had climbed on a car in a train from which he fell when frightened on being ordered off, evidence that a man who was dressed as brakeman, carrying a brake stick and a lantern, ordered the boy off and threw a piece of coal at him, held sufficient to sustain a finding that he was an employé of the railroad, and that his acts were within the scope of his employment. 5. RAILROADS 276(3) DUTY TO INFANT TRESPASSER ON CARS. To recover for injuries to small boy climbing on a car in a train caused by throwing a piece of coal at him and frightening him while getting down from the moving train, it is not essential to show elements of recklessness of gross negligence, but proof of what under ordinary circumstances might be termed "mere negligence" is sufficient. |