there was a small house, in which the late Amanda Spencer lived and with whom Jennie Bowie, apparently a faithful companion, lived for many years. After the death of Mrs. Spencer, and of her husband later, Jennie Bowie continued to live in the small house. It does not appear that she had any title to the property, although she was a beneficiary under Mrs. Spencer's will. The executors, therefore, in the administration of their trust, brought the said ejectment suit to recover possession of the property. And it was at the trial of this suit that the compromise referred to was made. The part of the compromise agreement relevant in the consideration of the present dispute is to be found in the second paragraph, and it read as follows: "That the plaintiffs will execute and deliver a proper deed to Jennie Bowie, the defendant, for a piece of land out of the lands in question forty feet in front on North Main avenue, and one hundred and fifty feet in depth, running at right angles to North Main avenue and adjoining the property of Miss Belle Von Storch; with the understanding and agreement that the defendant shall have the privilege of living upon the property in question from now until she shall have an opportunity to move the present house upon the said lot above mentioned of forty feet by one hundred and fifty feet, not longer than until the first of June, 1913, free of any charge or rent." In pursuance of this agreement Miss Bowie, who is one of the defendants in the equity suit, became the owner of 40x150 feet of the land which was the subject matter of the ejectment; and it appears also that the plaintiff in the equity suit, Carrie Meredith, became the owner in January last of the remainder of said land, viz., 110x150 feet. Thus these parties, respectively, own adjoining lands. Miss Bowie is improving her land by erecting thereon a frame building, the contractor being Patrick F. Gibbons, the other defendant in the present case. The plaintiffs in their bill claim that the defendants, (particularly the contractor,) are continuously trespassing upon plaintiffs' land by driving heavy loads of material over and depositing building material and refuse, stones and trees upon said land, to the great damage of the plaintiffs. Miss Bowie denies the trespass and claims the right to make reasonable use of the land because, according to the compromise agreement, she has exclusive possession of all the land until June 1, 1913. The agreement provides that Jennie Bowie shall have the privilege of living upon the property, free of rent, until June 1st, so as to give her time to move the present house to her own lot. The extent of this privilege must be measured by the circumstances under which the compromise agreement was effected. Miss Bowie has the right to live in the old house and to make reasonable use of all the land until June 1st. In considering the question of reasonable use another fact must be referred to viz., the roadway leading from the Putnam street side, across the land in question, to a coal shed, and which had always been used to carry material to and fro. We have reached the following conclusions: 1. The defendant, Jennie Bowie, has the right to use the said roadway to convey materials for the construction of the building on her own lot. 2. The contractor, Gibbons, has no right to deposit material and refuse on any part of the land owned by the plaintiffs. We are aware that the informal manner in which this case was heard prevents a more definite disposition of the controversy between the parties. If the contractor persists in depositing building material and refuse on plaintiffs' land we shall reopen the case for further testimony. For the present the rule to continue the preliminary injunction is discharged and the injunction is dissolved. MOGEL vs. REESER. Evidence-Spontaneous Utterances-Res Gestae. 1. The declarations of an injured person as to how the accident in which he was injured occurred are admissible as part of the res gestae where they are made under such circumstances as will raise the reasonable presumption that they are the spontaneous utterances of thought created by or springing out of the transaction itself, and so soon thereafter as to exclude the presumption that they are the result of premeditation and design. 2. The time that intervenes between the accident and the utterdoes not necessarily determine the admissibility of such ances evidence. 3. The declarations need not be strictly contemporaneous with the litigated act; they may be subsequent to it, provided there has not been time for the actor to contrive and misrepresent. Practice, C. P.-Evidence-Motion to Strike Out Testimony -Rebuttal. 4. After testimony has been admitted without objection, the proper course is to request the court to instruct the jury to disregard the testimony. 5. The rule as to rebutting evidence is liberally expounded in subserving justice. Negligence-Automobiles-Witnesses' Opinion as to Speed— Duty of Driver to Stop Car and Engine-Signal to Stop. 6. A non-expert witness is competent to express an opinion as to the rate of speed of an automobile. 7. If the driver of an automobile in the exercise of ordinary caution sees from the conduct of the horse attached to an approaching vehicle, that it is his duty to stop, he must do so whether signalled by the approaching driver or not. In the Court of Common Pleas of Berks County. No. 37, November Term, 1912. Verdict for Plaintiff. Rules by defendant for new trial and for judgment, n. o. v. Adam B. Rieser for Defendant and Rules. Opinion by Wagner, J., July 7, 1913. This is a suit for damages brought by the plaintiff on behalf of herself and of her two children, aged respectively ten years and seven years, against the defendant, by reason of the death of her husband, which she claims was brought about by the negligence of the defendant. The negligence charged in the statement is the reckless speed at which the said defendant ran his car, and his failure to stop the automobile and the engine when signalled to do so by the decedent. By reason of this the plaintiff alleges that the team that the decedent, John F. Mogel, was driving, ran away, ran over his body and produced the injuries which caused his death a few hours thereafter. The defendant has entered motions for a new trial and for judgment n. o. v. The fifth reason for a new trial relates to the admission of evidence to which defendant objected and to the court's refusal to strike out certain testimony from the record. The testimony thus objected to is, first: The plaintiff offered two witnesses, Adam Reber and Alfred Althouse, for the purpose of showing that immediately after the accident, while the decedent was being helped to his feet and was being placed on the bank at the side of the road, that he, the decedent, had stated to these witnesses, that he had signalled to the automobile to stop, but that those who ran it did not do so. Adam Reber, (N. of T., page 38), testified that after he saw the wagon give a jerk that they then went to the aid of the decedent; that they found him sitting on his hands and knees and that they then helped him up. The question was then put, "What did he say?" to which objection was made by counsel for defendant, which objection was sustained. Later on this witness was recalled. Counsel for plaintiff made an offer to prove what was said by the decedent at this time in explanation of the accident, whereupon we admitted the testimony and gave the defendant an exception. When asked, "what, if anything, did Mr. Mogel state to you and Mr. Althouse, with reference to the accident the time. that you helped him from the road to the bank?" he replied, "He told us that he hollered, that he waived his hand, put his hand up, and he wouldn't stop, the automo bile wouldn't stop. He couldn't talk that in one stretch; he said a couple of words and then he had to work for his breath." (N. of T., page 56). Then again, on page 57, in answer to the question, "It took you two minutes to get there, and then that would be seven minutes?" he answered, "No, sir, he told us right away." Counsel for defendant contends that the testimony thus given was not part of the res gestae and therefore not admissible. An examination of the testimony clearly shows that it was almost immediately after these witnesses came to the aid of the decedent that he stated what was testified to by them. Counsel for defendant contends that because at one time the witness testified that it was five minutes after the accident that decedent gave this explanation of the cause of the accident, that too long a period of time had intervened, and therefore the evidence was not admissible. The time that intervened between the accident and when these words were spoken does not necessarily determine the admissibility or inadmissibility of this evidence. In the case of Commonwealth vs. Werntz, 161 Pa. St. 591, the Supreme Court, on page 596, say: “No fixed measure of time or distance from the main occurrence can be established as a rule to determine what shall be part of the res gestae. Each case must necessarily depend on its own circumstances to determine whether the facts offered are really part of the same continuous transaction. In the notable case of Hunter vs. State, 40 N. J. Law, 495, 538, Beasley, C. J., adopts the definition of Wharton, Evidence, sec. 259, that 'the res gestae are the circumstances which are the undesigned incidents of the litigated act, which are admissible when illustrative of such act. These incidents may be separated from the act by a lapse of time more or less appreciable * * Their sole distinguishing feature is that they should be the necessary incidents of the litigated act; necessary in this sense, that they are part of the immediate preparations for, or emanations of such act, and are not produced by the calculated policy of the actors.' And with regard to declarations, the rule is well stated in 21 Am. & Eng. Ency. of Law, 102, that if they are made under such circumstances as will raise the reasonable presumption that they are the spontaneous utterances of thought created by or springing out of the transaction itself, and so soon thereafter as to exclude the presumption that they are the result of premeditation and design, they will be admissible as part of the res gestae.'" See also Coll vs. Easton Transit Co., 180 Pa. St. 618, 626; Keefer vs. Life Ins. Co., 201 Pa. St. 448, 455; Trexler vs. B. & O. R. R. Co., 28 Pa. Sup. Ct. 198, 206; Elkins, Bly & Co. vs. McKean, 79 Pa. St. 493, 501. Under these cases we consider that the declaration of decedent was clearly admissible as evidence to show how the accident had occurred. In charging the jury upon this question we were careful to state that the testimony of these witnesses was of value only as the jury found that what these witnesses alleged Mr. Mogel said was really what he did say and also that what Mr. Mogel stated to these witnesses was what really had happened. We consider that this testimony was clearly relevant for the purpose for which it was admitted. Second: Counsel for defendant complains of the admission of the testimony of Lewis Reber, John Reber, Mrs. Sallie Becker and Jerome Loose. The plaintiff |