Pittsburgh Legal Journal proved by the burgess, granting to the defend ESTABLISHED 1853. EDWARD B. VAILL, Editors. N.S., Vol. XXX. O. S., Vol. XLVII. PITTSBURGH, PA., MARCH 21, 1900. ant company the right to construct a street railway over the streets in question, and providing that the company should file with the clerk of council a plan showing the location of the tracks, and other particulars, before constructNo.35. ing its railway; and also providing that all the work should be done under the supervision and to the satisfaction of the borough. Court of Common Pleas No. 2, ALLEGHENY COUNTY. CONDON v. THE WILKINSBURG & EAST 4. On October 9, 1899, a plan for the construction of the three several curves in question was presented to the borough council and approved. According to this plan the track was put on one side of the street within about three feet of the curb line, and the return was completed by means of a reverse curve. 5. An objection having been made, after the adoption of this plan, to the manner of its con Sidewalks-Change of curb-Notice to property struction, and to the dangerous character of the owners. Signature by burgess of resolution of council. A borough gave a street railway the right to lay tracks on certain streets, and afterwards approved a plan by which at the corner of two streets the curb of the sidewalk was changed from a square to a curve with a radius of the same length as the uniform width of the sidewalk. No notice was given to the property owners of the proceeding. Held, that this was not such a proceeding in relation to streets as required notice to the property owners under the statute. curve, as forming a trap for vehicles, on October 11, 1899, another plan was presented to the borough council, by which it was proposed to take out the reverse curve shown in the plan of October 9, and leave the street-car tracks practically in the middle of the street, and this by cutting off the corners of the sidewalks in each case, which were originally square, and reducing them to curves with a radius of the same width as the sidewalk in general. This plan was ap The resolution approving the plan which was provided proved by the council, but was not presented to the burgess to be signed, and was not signed by him. for in the original ordinance granting the right to lay tracks, did not require the signature of the burgess. No. 303 Jan. T., 1900. In Equity. SHAFER, J. Filed February 14, 1900. These cases are by three different plaintiffs against the same defendant, and were heard together by consent of counsel. The bills are for an injunction to prevent the construction of the street railway of the defendant company upon certain streets in the borough of Braddock, in a certain way in which it is proposed to construct the same. FINDINGS OF FACT. 1. The Wilkinsburg and East Pittsburgh Street Railway Company, the defendant, is a company chartered under the street railway acts, and has a right, by its charter, or by extensions and branches, to construct a street railway on the streets in question. 6. The borough authorities gave no notice to any of the plaintiffs either of the consideration or the passage of the ordinance referred to, nor of the presentation or the discussion of either of the resolutions of October 9 or October 11 referred to, and it does not appear that any of the plaintiffs had any notice, in fact, at least, of the resolution referred to. This bill was thereupon filed to enjoin the construction of the railway in this manner, and especially the rounding of these corners. CONCLUSIONS OF LAW. I. It is suggested by plaintiffs' counsel that, by reason of some irregularity in the charter, or manner in which the branch line in question was adopted, no provisions for an increase of capital stock having been made at the same time, the defendant company has no right to construct its road. Whatever merit there may be in this contention, it does not lie in the mouth of the plaintiffs to set it up now, as no indication whatever is given of such a claim in the bill. 2. The plaintiffs are severally owners of property at the corners of streets where the proposed railway turns from one street to the other, the properties of each of the plaintiffs being on the inside of the curve in each case. 3. In September, 1899, an ordinance of the II. It is further suggested that the ordinance borough of Braddock was passed, and duly ap-in question does not sufficiently give the de fendant company the right to some 40 feet of Talbot avenue, occupied in passing from Eighth street to Talbot avenue. The second section of the ordinance states the highways to be traversed as "beginning on Talbot avenue at Eighth street, thence along Eighth street," etc., and section 2 provides that the company shall also have the right to use the tracks of the Monongahela Street Railway Company over the following described routes: "Beginning on Eighth street at its intersection with Talbot avenue, thence along Talbot avenue to Fourth street." We think this is a plain indication that it was intended to give the company the right to make a continuous railway over the part of the street in question. ing the right of way to a street railway, should undertake sensibly to reduce the sidewalk in front of a property, and thereby produce inconvenience and loss in value, it might be a ques tion to what extent this would be subjecting the property to an additional servitude, and therefore whether or not it was within the power of the municipality; but we do not think that any such question is presented in this case, for the reasons suggested. We are therefore of the opinion that the plaintiffs are not entitled to an injunction. A decree will be made that the bills be dismissed. For plaintiffs, J. H. W. Simpson and Howard Zacharias. For defendant, Knox & Reed and J. H. Beal. Court of Common Pleas No. 1, ALLEGHENY COUNTY. III. We do not understand the statute requiring the notice to be given to property-holders by borough authorities, when proceeding in relation to streets, etc., to apply either to an ordinance granting the right of way over the street to a street railway or to such a resolution as that of October 11, which was merely STEELE v. CONSOLIDATED TRACTION CO. the approval of a plan in pursuance of the ordinance. If the alteration in the curb line and in the sidewalk were substantial and anything more than the mere rounding of a square corner, which left the sidewalk everywhere of the width provided by the ordinance of the council theretofore passed, there might be some merit in the claim that the borough was bound to give notice of the change of the position of the curb; but as we look upon the rounding of the corner as being no real alteration in the width of the sidewalk, as provided by the ordinance, we are of opinion that no notice was required. Injury to passenger on street railway-Presumption of negligence—Remarks of counsel. Plaintiff, a passenger in a street car, was injured by the pole of a wagon entering the car and striking his leg. Testimony of defendant's motorman was that he was going up grade at about three miles an hour on a dark and misty night; that the track in front of him was clear; that he did not see the wagon on the opposite track until a short distance from him, when he put on the brake, but could not stop in time to avold an accident. The testimony of the witnesses for plaintiff was that the tongue of the wagon was on the track when the car was considerable distance away. Held, that defendant's evidence was not sufficient to overcome the presumption of negligence arising from the accident. A correct statement to the jury by plaintiff's counsel of the various elements of damage, with the amounts which they could find, to which the defendant's counsel objects before the jury retires, but in answer to the court, says that he does not desire the court to further instruct the jury on the question of damages, is not error for which a new trial will be granted. No. 237 March T., 1899. Motion for a new trial. IV. It is also suggested that the resolution of October 11 is invalid because not signed by the burgess. We understand the plan approved by that resolution to be the plan provided for in the 4th condition of section 4 of the ordinance, and the adoption of it, and the change in the curbstone made thereby, and the approval of the manner in which the track was to be laid, to be a part of the supervision reserved to the borough. We do not understand all the supervision required by the borough, and the Opinion by SLAGLE, J. Filed March 3, 1900. satisfaction with the result, to be necessarily There are a number of reasons given for a indicated only by an ordinance. If the altera-new trial in this case, but they present but two tion in the street line were a real lessening of grounds, first, that the verdict is not sustained the sidewalk, and not a mere rounding of the by the evidence, and second, improper argu corners of it, we should of course be of opinion|ment by counsel for plaintiff. that it would have to be done by ordinance, and therefore would have to be signed by the burgess. The sidewalk is a part of the street, and as such is under the control of the municipality. If, however, a municipality, in grant The action was brought to recover damages to the plaintiff, who was a passenger upon a car of the defendant company which came in collision with a wagon moving in the opposite direction upon the other tract of the road. The pole of the wagon entered the car near the left-hand corner, passing through it diagonally and striking the plaintiff in the leg. his estimates were merely submitted for their consideration as a basis for their conclusious. There was nothing objectionable in the manner The plaintiff being a passenger in his proper of his argument unless it was to be found in place in the car a presumption of negligence the figures which he submitted for the considwas raised by the happening of the accident | eration of the jury. itself. The only evidence offered to rebut this presumption was that of the motorman in charge of the car. He testified that he was going up grade on Liberty avenue at the rate of about three miles an hour, that the track in front of him was clear, that he saw a wagon on the opposite track and the horses; that the night was very dark, it was raining or misty, and he did not see the wagon until within a short distance of it and put on his power brake, but was not able to stop in time to avoid the accident. The other witnesses for the defense testified to matters after the collision had occurred. We think that this testimony was not sufficient to overcome the presumtion of negligence arising from the accident. The night being dark and the mist such as to obscure the ordinary lights on the street and on the car, the motorman ought to have taken extra precaution to avoid accident by slackening speed and having his car under easy control. But the testimony upon the part of the plaintiff was that the horses attached to the wagon had turned off the track and thus brought the tongue of the wagon towards the other track when the car was a considerable distance away; that owing to a collision with another wagon crossing in front of it the driver was unable to bring the horses back to the track upon which they were travelling, and that he called out to the motorman to warn him of the danger. The testimony justified the conclusion that if the motorman had looked or listened he might readily have avoided the collision. The testimony therefore warranted a verdict in favor of the plaintiff. The plaintiff was very seriously injured and we cannot say that the amount of the verdict was excessive. The other reason for a new trial is the allegation of improper argument by plaintiff's counsel. This consisted in a statement made by counsel of the several elements of damage and giving his view of the various items with amounts which they should find. In doing so he read the items from a paper which he had prepared, but the paper was not presented to or shown to the jury. The counsel stated the several elements of damage very correctly, giving the rules applicable to each as to which there could be no objection. He also stated to the jury that Upon conclusion of the charge of the court and direction of the jury to retire, counsel for the defendant presented to the court a paper as follows: "BILL OF EXCEPTION. "And now, January 16, 1900, counsel for the plaintiff in his address to the jury made the statement that the plaintiff is entitled to recover the sum of $13,200 as damages in this case. "To which statement of counsel the defendant's counsel objects, for the reason that the testimony does not show the amount in dollars and cents which plaintiff is entitled to recover, and it was therefore improper for counsel to maintain any amount in dollars and cents as and the court is hereby asked to seal the bill of the amount of plaintiff's damages in this case, exceptions thereto." Upon presentation of this paper the court inquired of counsel if he desired the court to instruct the jury in this matter, to which he replied that he did not. The jury was then permitted to retire. Under these circumstances, if the argument of counsel for plaintiff had been improper, we would not be justified in granting a new trial on that account. The defendant having taken the chances of a verdict. But the argument of counsel does not seem to be improper. Such statement of damages was made by permission of the court after the charge of the court. In the case of Drew v. Pier, 93 Pa. 234. The paper presented to the court does not profess to be an accurate statement of the remarks of counsel for plaintiff and is in fact not such a statement. Counsel mentioned the different items of damages, giving the amount of his estimation of each, and not a gross sum, as suggested in the paper. This is not in accordance with the rules for taking advantage of improper argument as laid down by the Supreme Court in Holden v. Penn'a R. R., 169 Pa. 1, and in the case of Com'th v. Weber, 36 W. N. C. 193. GRIFFITH v. MCKELVEY et al. Trespass-Statement-Sufficiency of. A statement in trespass alleging conspiracy among defendants to deprive plaintiff of her position as school teacher, which sets forth certain acts done by defendants as individuals and certain other acts by them as principal and directors of the school, and then avers that none of defendants were acting in good faith or lawfully, that they conspired together to accomplish dismissal of plaintiff and were acting unlawfully and in confederation, wilfull- and maliciously to the accomplishment of said illegal purpose," sufficiently states the cause of action, though not such a concise statement as required by the Act of 1887. SCHONDORF v. GRIFFITH et al. Malicious prosecution— What evidence sufficient to justify a verdict for the plaintiff—What verdict will be considered reasonable. No. 117 June T., 1898. Motion for new trial. Opinion by SLAGLE, J. Filed March 8, 1900. This was an action for malicious prosecution in which a verdict was rendered against the defendants for the sum of $800. The reasons for a new trial are, first, the verdict is excessive; second, the court's refusal of No. 66 March T., 1900. Demurrer to state- defendants' point. ment. Opinion by SLAGLE, J. Filed March 3, 1900. This is an action of trespass which alleges a conspiracy among the defendants by which the plaintiff was dismissed as a teacher in the public schools of the Thirty-eighth ward of the city of Pittsburgh. Since the filing of the demurrer the plaintiff has filed an amended statement, and though it does not appear to have been done by leave of court, we will treat it as if it had been so filed. The statement alleges certain acts done by the parties as individuals, and certain other acts by them as the principal and directors of the school, and then avers "that said defendants and none of them were acting in good faith or lawfully, that they had conspired together to accomplish the dismissal of plaintiff, and were acting unlawfully and in confederation, wilfully and maliciously to the accomplishment of said illegal purpose," and with other allegations of the same character. The vice of this statement is that it undertakes too much. It is not a clear and succinct statement of the facts upon which the plaintiff relies, as directed by the Act of 1857. That Act does not require a statement of the evidence to be adduced, but merely a general statement of the grounds of complaint, notwithstanding this defect we think a cause of action is sufficiently stated. The facts set forth as stated might not justify the finding of a conspiracy. But this is not necessary to sustain the action as a verdict might be rendered against any of the parties found guilty: Laverty v. Van Arsdale et al., 65 Pa. 507. The demurrer will therefore be overruled. The only point submitted by the defendants' counsel was, "If the jury believe that Cohen did not report to Griffith before Griffith had made the information, that he, Cohen, had received the $5.00 from Schondorf, then Griffith had reasonable or probable cause to make the information, and the verdict should be for the defendants." There was not only sufficient other evidence to submit to the jury, but in our judgment sufficient evidence to justify a verdict against the defendants. The plaintiff had been in the employ of the C. F. Adams Company, a corporation doing business of selling goods upon installments. Griffith was the manager of their business in Pittsburgh. The plaintiff had left the employment of the company and gone into other business. Some difficulty arose as to the addresses of certain persons to whom the plaintiff had made sales, and especially to one living in Duquesne. The plaintiff alleged that the defendant Griffith had told him to bring back the goods or the money or he would charge him with the amount; that he called on the party, who offered him the money, $5.00, which he accepted, and gave a receipt in his own name; that the same evening he gave the money to Charles Cohen, an employee of the company, with the request that he would hand it to Griffith." Cohen testified that ou Monday morning he had informed Mr. Griffith that he had received the money from Schondorf and to charge it to his account, he having a credit with the company at that time. A few days afterwards a collector of the company found the party to whom the sale had been made upon the address which had been previously given to them by the plaintiff. Without making inquiry of the plaintiff, Griffith made an information against him for larceny. At the hearing Cohen stated that he had received the money and said that. if Griffith was unwilling to charge it to his account he would pay the money. Notwithstand ing this, Griffith requested the alderman to return the case to court. He appeared before the grand jury, a true bill was found and the case was tried in court. Griffith did not appear at the trial and the defendant was acquitted. The plaintiff was arrested and committed to jail upon the information made. He testified that by reason of his arrest he lost his situation and could not get employment in Pittsburgh, and for that reason went to Philadelphia. The testimony justified a verdict in favor of the plaintiff which does not appear to us to be excessive. A new trial will therefore be refused. For plaintiff, Marron & McGirr. feet fronting Beeck wood avenue and a covenant that no lot shall be less than seventy feet in width. A deed to Porter was produced at the hear│ing by Hay's attorney, executed by Hay since this petition was filed, conveying the property free of the building limitation and the covenant as to the width of the lots. It contained, however, a condition as to ordinances in regard to streets which was not fully explained. This deed has not been delivered to Porter. The Beechwood avenue lot is subject to the lien of a municipal claim of $5,600 and a mortgage for $46,000 held by Mrs. Haller covering part of it and other land. The petitioner has made a written contract to convey the Penn Building to Jacob Kaufmann, For defendants, L. M. Allen and Rody P. receiving therefor a purchase-money mortgage Marsnall. Orphans' Court, ALLEGHENY COUNTY. Estate of DALLAS C. IRISH, Deceased. Specific performance-When enforced-Right of vendee of purchaser to intervene. Specific performance should not be decreed if there be only a probability that the petitioner could perform his part of the contract. A vendee under an executory agreement has no standing to intervene and become a party to a petition filed by his vendor for specific performance of a contract for the purchase of the land from a third party. of $125,000 and a conveyance of certain real estate in Pittsburgh. Kaufmann testified that he is willing and ready to pay $115,000 in cash, $100,000 to be applied to cash payment on the Irish contract and $15,000 to be applied to se curing release of the liens on the Beech wood avenue property. Mr. Hay agreed to take a mortgage on the property to be conveyed by Kaufmann to Porter for the purchase money due him on the Beechwood avenue lot, and the attorney for Mrs. Haller, the holder of the mortgage on part of that lot, agreed that its lien should be released upon the payment of some cash and the delivery of Porter's mortgage on other property to be conveyed to him by Kaufmann. Subsequently to the filing of the petition, Jacob Kaufmann filed a petition asking to be No. 148 Dec. T., 1899. Petition for specific allowed to intervene and become a party to the performance. OVER, A. J. STATEMENT. D. C. Irish, the decedent, by contract dated the 14th of October, 1899, entered into with W. R. Porter, the petitioner, agreed to convey to him an office building on Penn avenue, Pittsburgh, known as the "Penn Building," in consideration of which Porter was to pay him $100,000 in cash and convey to him, free of all liens and encumbrances, a lot in the Twentysecond ward, Pittsburgh, frouting four hundred feet on Beechwood avenue, and extending in depth three hundred and forty feet. The only title then or now vested in Porter to that portion of the lot fronting on Beechwood avenue and extending in depth one hundred and seventy feet is under a written agreement with James Hay, in which he agrees to convey same to the petitioner for $100 per foot front, subject, however to a building line restriction of fifty proceedings. OPINION. Filed March 3, 1900. Under Porter's agreement with James Hay, his title is subject to building restrictions and covenants on his part which would prevent him from conveying the Beechwood avenue lot free of all liens and encumbrances; and unless Hay conveys free of these restrictions and covenants, Porter cannot comply with his contract with the decedent. It is true a deed was produced in court not containing them, but it has not been delivered to Porter, and it may not be, as Hay is under no legal obligations to deliver such a deed. It, however, was made subject to certain ordinances relating to streets, the terms of which we are not informed and which might or might not be considered encumbrances on the title. But, if this difficulty were overcome by the petitioner, he is met by another; unless Mr. |