(116 A.)

money belonging to a client after demand." In otherwise have set up. If he was before a re Graffius, 241 Pa. 222, 88 Atl. 429.

jury, answering a demand for the money he
indebtedness for fees, the court would be
had received, and in counterclaim set up an
bound to rule, as matter of law, that such
claim, under the circumstances of bad faith
here appearing, could not be allowed.
The appeals from both proceedings are
dismissed at appellant's cost.

"In such case to successfully deny the jurisdiction of the court in summary proceedings for disbarment of a guilty officer would practically strip it of the power of judicial self-defense, and make the bar, instead of an honorable and learned profession, a sort of fortress for the unprincipled, from which they would prey with impunity upon the public without, and attack the court from within. From the very nature of his office, and its relation to the public and the court, a lawyer who enters at his own solicitation by the front door sub-1. jects himself to ejection by the back one, if he do not 'behave himself well.' Nor is there any more reason for calling in a jury to pass upon his misconduct, when he is put without the bar, than for calling in one to pass upon his professional qualifications when he is admitted within it. The subject of investigation and judgment in both cases is one for which the court, and the court alone, is well qualified, while the jury is not."

What was said in Murphy's Estate, 258 Pa. 38, 101 Atl. 935, in no way lessens the dominion of the court over members of the bar who are unworthy to be such. That part of the opinion relied on by appellant wherein it

is stated:

(272 Pa. 499)

CRAFT v. HINES, Director General. (Supreme Court of Pennsylvania. Jan. 3, 1922.)

316(2)-Speed in open coun

Railroads
try not negligence.

In the open country railroad companies may move their trains over grade crossings at such rate of speed as the character of their machinery and roadbed may make practicable. 2. Evidence 586 (3, 4)-Evidence held to support directed verdict for defendant in action for death at crossing.

In an action for damages for a death of a passenger riding in an automobile truck struck by a train at a crossing, testimony of the three occupants of the truck that they heard no warnings, contradicted by positive testimony of the engineer and fireman corroborated by witnesses testifying that signals were given, held to require a directed verdict for defendant.

Appeal from Court of Common Pleas, Jefferson County.

"If there be a dispute as to the terms of an agreement as to the fees to be paid, the question becomes one of fact, and 'a man does not lose his right to a trial by jury because he is an attorney at law,' -must be read in connection with this lan- Railroad Administration, operating the Buf-. guage used therein:

"If from the pleadings it had appeared to the court below that the appellee had misbehaved himself in his office as an attorney practicing before it, or that the money which he retained was under its jurisdiction, it clearly could have punished the offending practitioner, or required him to turn over the moneys in his hands to the estate to which they belonged."

In the instant case there would be nothing for a jury to pass upon; for whatever fees appellant might have been entitled to claim had he acted according to proper standards of professional honor he has forfeited by his fraudulent conduct and lack of fidelity to his client. Balsbaugh v. Frazer, 19 Pa. 95; Shoemaker v. Stiles, 102 Pa. 549; Martins' Petition, 237 Pa. 159, 85 Atl. 88. Appellant, having extracted from his client a large sum, under the allegation that it was necessary to be used in the procurement of bail, and having betrayed him in the habeas corpus proceedings, has forfeited any claim to compensation which he might

Action by Lillie Craft against Walker D. Hines, Director General of the United States

falo, Rochester & Pittsburgh Railway Company. On judgment for defendant, plaintiff appeals. Affirmed.

Argued before MOSCHZISKER, C. J., and FRAZER, SIMPSON, KEPHART, SADLER, and SCHAFFER, JJ.

Charles J. Margiotti and Gillespie & Gillespie, all of Punxsutawney, for appellant.

John G. Whitmore, of Ridgway, C. Z. Gordon, of Brookville, and H. B. Hartswick and W. C. Miller, both of Clearfield, for appellee.

SCHAFFER, J. This is an action to recover damages for death at a grade crossing. The trial court gave binding instructions for defendant; plaintiff appeals.

About 6 o'clock in the afternoon of July 4, 1918, the day being clear, plaintiff's husband, who was a passenger for hire in an automobile truck, was killed in a collision between it and a locomotive drawing a freight train, at a point where a public road on which the truck was traveling crosses at grade the tracks of the Buffalo, Rochester & Pittsburgh

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

Railroad. It is admitted the truck did not stop before the attempt to cross the railroad tracks; the driver was heedless, and made the approach without in any way exercising the ordinary precautions due at a grade crossing. The truck was an open one, without top, so far as the passengers, who were nine or ten in number, were concerned, the only covering being over the driver's seat; and plaintiff's decedent was seated in the open part, on a seat, longitudinally placed, facing the direction from which the train which killed him came.

An interesting question arose as to the effect of deceased's want of care, considering the reckless conduct of the driver; but that we are not called on to determine, because no negligence on defendant's part was shown. The negligence charged in the statement and attempted to be substantiated on the trial is that the train was run at a dangerous rate of speed in approaching the grade crossing, and that there was a failure on the part of those operating the train to blow the whistle or sound the bell as the train approached the crossing, so as to give warning of its approach to persons on the highway who might intend to cross the tracks.

the train was going 40 miles an hour. It is apparent that no controlling finding of fact could be predicated upon this bit of testimony, when we consider that, according to the witness' own story, nature's first law, that of self-preservation, was dominating his mind. This was all the testimony there was as to speed on the part of plaintiff, except that it was testified by the conductor of the train that the train "was not supposed to go over 35 miles per hour"; that this was "as fast as we are allowed to run." The engineer testified to a speed of 30 miles an hour at the time of the accident. There was no reliable evidence in the case to show negligent speed, even if it could be assumed that, under the circumstances, 40 miles an hour was such.

As we said in the Schwarz Case, 218 Pa. 187, 67 Atl. 213:

"It is not the rate of speed that prevents a traveler from passing safely over a railroad crossing in an open country, but the failure to give notice of the approach of the train by those in charge of it, or disregard of such notice by the traveler when given. * * * It is not the rate of speed that is the negligence of the company, but the failure to give proper notice of the approach of the train."

[1] The vital question in the case is that of warning of the approaching train. The This brings us to the critical inquiry in train was running in the open country, where the case, on the angle from which we are conrailroad companies may, move their trains at sidering it. Was warning given of the ap such rate of speed as the character of their proach of the train? To answer this inquiry machinery and roadbed may make practica- we have read all the testimony with painsble. Rapp v. Central Railroad of Penna., 269 taking care. The witnesses called by plainPa. 266, 112 Atl. 440; Schwarz v. Delaware, tiff to show that no warning was given were Lackawanna & Western R. Co., 218 Pa. 187, the driver of the truck, the passenger seated 67 Atl. 213. Nothing as to the rate of speed on the front seat alongside of him, and anof the train could safely be predicated on other passenger, Drauker, who was seated in what was said by plaintiff's witnesses; they the body of the vehicle. The testimony of had not observed its approach until it was all three of them was negative-that they almost upon them, and saw it only for the did not hear-and not one of them supplied most fleeting space of time, in the wild ex- the element of watchfulness and attention citement and fear which would necessarily for a signal necessary to meet defendant's seize upon persons in a truck filled with positive proofs in this regard. All agreed people facing possible death or serious injury. that the truck was ascending an incline to [2] The driver of the truck, called by plain- the tracks in second gear, at a speed of about tiff, said he could only guess at the speed. A 3 miles an hour, and that the truck was makpassenger seated alongside of him, whose tes- ing a noise. It was undisputed that, from a timony shows he was inattentive to his sur- point 35 feet from the track, there was an roundings, saw the locomotive first when it unobstructed view of the train, in the direcwas but 10 feet from the crossing, and then tion from which it came, of from 400 to 450 only the front end of it; he was not per- feet. The driver testified, in answer to a mitted to express an opinion as to its speed, query as to whether notice was given by because it was manifest he could form no either bell or whistle, that "the bell could accurate judgment whatever on the question. have been ringing," but if the whistle had Another witness, Drauker by name, was been blown "as [the train] rounded on to the seated with his back to the approaching train crossing on the right hand curve, I would and saw the engine first when it was, he have heard it"; the spot indicated was not thought, about 150 feet from the crossing; at the place fixed for the blowing of the whistle; sight of it, he said, he "was kind of stunned however, it was to be blown at a whistling for awhile," and tried to force himself to post farther away. This witness categoricalanother place in the truck, apparently to ly admitted, "I didn't stop, look, and listen;" minimize his danger as much as possible. and he himself differentiated between a posiThis was the only witness who estimated tive assertion that the bell did not ring, and the speed, and he testified that in his opinion the negative one that he did not hear it, by

(116 A.)

saying, after stating that he heard no bell, I point of the accident, leaving the bell ringthat, "It could have been possibly, there is a chance of it being ringing." Again, when answering the direct inquiry whether he would say the bell was not ringing, the witness said "No." As to sounding the whistle, his testimony was entirely negative; he repeated the statement quoted, that the whistle was not blown as the train came around the curve, and qualified this by saying that he meant "just as you come on the crossing." Then he confined the distance of the train from the crossing, within which he would say the whistle was not blown, to 150 feet. In answer to the question whether he would pretend to say the whistle was not blown at the whistling post, he admitted he would not say it was not blown there, and that he knew it was the regular place for the engineer to sound the whistle. The passenger seated alongside him, in answer to the question whether the engine gave any warning as it approached the crossing, replied, "None that I heard."

The witness Drauker, sitting with his back in the direction from which the train approached, testified there were no signals given by the locomotive as it approached the crossing, but he based this statement on the fact that he did not hear them. Answering the question, "Do you know whether the whistle was blown down at the whistle post?" he replied, "I don't know whether it was or not-I didn't hear it." This answer speaks for itself, so far as the legal rule regarding negative testimony is concerned, and shows that on the critical question as to whether the whistle was blown where it was the duty to sound it he was ignorant.

Against this negative and unsatisfying testimony, defendant produced evidence to show, by the engineer of the train, that he gave notice of the approach to the crossing by blowing the customary crossing approach signal, two long and two short blasts, at the place fixed for blowing it for the crossing in question; that the engine was provided with an automatic bell-ringing device, which he turned on when he blew the whistle; that the bell commenced ringing and rang until after the train passed the crossing. The fireman, in corroboration of the engineer as to the blowing of the whistle and ringing of the bell, testified that he shut the bell off after the train stopped, following the accident, that he heard it ringing all the time, and that the reason why he, and not the engineer, turned the bell off was because, when the train stopped, the engineer ran back to the

ing. The conductor also testified the bell continued to ring after the train had stopped, and this fact was further corroborated by a witness who was driving an automobile in the road behind the truck in which deceased was riding, who likewise testified that the bell continued to ring after the train stopped. An important witness in the case, Paul Pantall, said he was coming toward the crossing from the opposite side from that on which the truck approached. He heard the train whistle as it was coming up behind him, looked out the side of his automobile, saw the train, stopped his automobile, and, after stopping, saw the truck in the road on the other side of the tracks approaching the crossing. He had the truck in view from the time he first saw it; seeing the driver change gears to make the ascent of the grade to the crossing, he screamed and halloed, and motioned to attract the attention of its occupants, but they were oblivious to his outcries. Another witness, Frank Bernardo, who lived about 300 feet from the crossing and who witnessed the accident, said he heard the train whistle for the crossing, and, at the time he heard the whistle, saw the automobile in the road approaching the tracks. Another witness, Lovejoy by name, who was waiting at the crossing to take a train going in the other direction, testified that he heard the train in question whistle, and turning to look along the road, saw the truck in the road approaching the crossing about 180 feet distant. The witness Hazlett, whose testimony has been referred to heretofore, and who was driving in the road behind the truck, testified that he heard the train whistle, with the truck in the road ahead of him, and, as has been stated, that he heard the bell ringing after the train stopped. His wife, who accompanied him in the automobile, also said she heard the whistle.

In the light of this positive testimony produced by the defendant, no verdict could be permitted to stand in plaintiff's favor, which was based on the negative and unsatisfactory evidence produced in her behalf, to establish negligence by a failure to give notice of the approach of the train. Anspach v. Phila. & Reading Ry. Co., 225 Pa. 528, 74 Atl. 373, 28 L. R. A. (N. S.) 382; Charles v. Lehigh Valley R. R. Co., 245 Pa. 496, 91 Atl. 890; Leader v. Northern Central Ry. Co., 246 Pa. 452, 92 Atl. 696; Rapp v. Central Railroad of Penna., 269 Pa. 266, 112 Atl. 440. The judgment is affirmed.

(272 Pa. 494)

GAIRT v. CURRY COAL MINING CO. et al. (Supreme Court of Pennsylvania. Jan. 3,

1922.)

Master and servant 419 Compensation board authorized to reinstate disability agreement after order reciting agreement should terminate.

A total disability agreement under the Workmen's Compensation Act (Pa. St. 1920, §§ 21916-22112) contemplates a total payment of compensation to the claimant for the period of 500 weeks, and when the board, either of itself or by one of its referees, relieves the employer of such payment, although it uses the word "terminate," it merely suspends that payment or that obligation awaiting further development of injuries, and the Legislature recognized this fact when it included in the amended law (Act June 26, 1919 [P. L. 661, § 6; Pa. St. 1920, § 220321), the word "suspend," and the board, on ascertaining that the injured employee is totally and permanently disabled, may reinstate the agreement, notwithstanding that it has denied motions for review and modification in the interim, in view of Act June 2, 1915 (P. L. 750, 754), art. 4, §§ 408, 423.

claimant has returned to work and his loss
of earning power has been established,"
should be paid for "partial disability." Pay-
Between
ments ceased as of July 9, 1918.
December 2, 1918, and March 24, 1919, three
separate petitions were presented by Gairt,
asking for review and modifications, all of
which were refused. On August 24, 1920, the
board, acting on the petition of October 10,
1919, first above mentioned, found that claim-
ant was totally and permanently disabled;
and it made an order reinstating the com-
pensation agreement as of July 9, 1918. This
was affirmed by the common pleas, and there-
upon defendant and the insurance carrier
appealed.

Appellants contend that the compensation authorities were without jurisdiction to make the order now before us, because claimant's right to receive compensation covering the period since July 9, 1918, was finally adjudicated against him by the refusal of the three prior petitions, and the board's power to act in that regard was exhausted. As to this, the court below held that the original order, stopping payments to claimant, "clearly left open," to be fixed at a subsequent date, "the payments to be made on account of the Proceeding by Joe Gairt under the Work- injury, the amount of these payments to be Proceeding by Joe Gairt under the Work-determined on a later investigation,” adding: men's Compensation Act to reinstate a compensation agreement, opposed by the Curry "The last investigation satisfied the board, on Coal Mining Company, the employer, and the Ætna Life Insurance Company, the insurance carrier. There was an order reinstating the agreement, which was affirmed by the common pleas, and the employer and insurance carrier appeal. Affirmed.

Appeal from Court of Common Pleas, Cambria County; Charles E. Evans, Judge.

Argued before MOSCHZISKER, C. J., and FRAZER, SIMPSON, KEPHART, SADLER, and SCHAFFER, JJ.

William A. Challener and Clarence Burleigh, both of Pittsburgh, and F. J. Hartmann, of Ebensburg, for appellants.,

Chas. J. Margiotti, of Punxsutawney, and McCann & McCann and James W. Leech, all of Ebensburg, for appellee.

MOSCHZISKER, C. J. Joe Gairt, claimant and appellee, on October 10, 1919, presented a petition to the Workmen's Compensation Board to reinstate a compensation agreement, which had been entered into May 4, 1917, between him, the Curry Coal Mining Company, defendant, and the Etna Life Insurance Company, insurance carrier (intervener), for injuries which Gairt had sustained, on March 10, 1917, while in the course of his employment as a coal miner for defendant.

the question of fact, that the claimant had nev-
er been able to resume [his normal] work,
*** and it made, inter alia, the following
findings of fact, amply supported by testimony:
"These injuries are permanent, and have ren-
dered him unfit for the occupation in which he
was engaged at the time of the injury, namely,.
* Claimant made a
that of a miner.

real effort to work, but was unable to do so,
frequently being compelled to move about on
his hands and knees because of the pain and
inconvenience suffered in his efforts to comply
with the referee's order.
* [He] has
demonstrated in his efforts, as well as by the

medical testimony taken in these proceedings,
that he is totally and permanently disabled.'
[Again it may be said] the questions as to the
extent of the injury, and the extent of its in-
terference with the ability of the claimant to
labor, were clearly left open by the order and
decree of July 29, 1918, and the investigation
subsequently made satisfied the board that the
injury resulted in total disability. * * * The
referee, in the first instance, very properly
undertook to relieve the defendant from the
obligation to pay until the exact status of the
[and]
*** the testimony in the proceedings [for
review and modification] did not develop what
the present testimony clearly reveals."

claimant could be determined

We quite agree with the conclusion reached On July 29, 1918, the compensation author- by the compensation board and affirmed by ities made an order that the agreement of the learned court below; and, since the May 4, 1917, should "terminate," for "total chairman of the former, in his opinion filed disability," as of July 9, 1918, and that fur- in this case, so correctly states the law, we ther compensation, "to be determined after quote therefrom as follows: