tion as we regard it. It is further urged that the act violates Secs. 1 and 2 of Art. IX of the Constitution, but these sections do not apply to the kind of charge which the appellant undertakes to make. As has already been noticed this constitutional provision only applies to ordinary taxation for the maintenance of government. It neither permits nor forbids the enactment of a law exempting real estate from assessments for local municipal improvements. If the exempted property is a proper subject of classification no place remains for the argument that there is an inequality of taxation, for the property is taken out of the lists of things liable to assessment. All of the property made liable is equably charged. We regard it as within the power of the legislature to make the classification declared in the constitution and the statute, and to relieve the particular class of property from the burden of the cost of improvement of the character made by the appellant. The judgment is therefore affirmed."

Reference is made by the plaintiff to the Act of May 12th, 1911. Upon a reference to the act itself it is found that the act makes no change as to the subject of taxation but refers with other matters to the method by which municipal improvements may be made. This was the only legislation passed since the above opinion was rendered. The Court is therefore of the view that the property of the defendant is exempt from liability for the municipal claim which the plaintiff seeks to recover.

Now, July 6th, 1914, rule to show cause why judgment should not be entered for want of a sufficient affidavit of defense is discharged.

QUEEN CITY MOTOR CO. vs. BERGER.

Justice of the Peace-Appeal Nunc Pro Tunc-Discretion of Court-Practice C. P.

The granting or refusing of an appeal nunc pro tunc from the judgment of a magistrate, is a matter of sound discretion. Where it appears, from depositions taken, that the defendant has a just defence to the whole of the plaintiff's claim, and that the plaintiff is indebted to the defendant to an amount exceeding plaintiff's claim, and that the defendant had no knowledge of the service of the summons at her dwelling house, the court will allow an appeal nunc pro tunc.

In the Court of Common Pleas of Lehigh County. No. 6 April Term, 1914. Queen City Motor Company vs. Florence Iredell Berger. Rule to show cause why an appeal should not be allowed nunc pro tunc.

Groman, P. P., June 15, 1914. Suit in the above proceeding was brought before Alderman Robert L. Schiffert of Allentown, Lehigh County, Pennsylvania, on December 4th, 1913. William Gruele, Constable, made return on December 5th, 1913, that summons was served on an adult member of the family on that date. December 10th, 1913, the alderman heard the plaintiff; the defendant failed to appear. On the same day judgment was entered in favor of the plaintiff and against the defendant in the sum of Ninety-five Dollars and Seventy-five Cents ($95.75). January 3rd, 1914, an execution was issued by the alderman, and on the same date the constable levied on the personal property of the defendant. Same day the defendant, through her attorney, presented a petition praying for a rule on the plaintiff to show cause why an appeal nunc pro tunc should not be allowed. Depositions were taken and it was shown that the defendant, as in her petition for a rule set forth, had a just defense to the whole of the plaintiff's claim, and that the plaintiff was indebted to the defendant to an amount exceeding the plaintiff's claim. It appears further from the depositions that the defendant is a resident of the City of Allentown; that from November 27th, 1913, to the 22nd day of December she was in New York City taking care of her son, Karl Berger, who was then ill with the measles and under quarantine in said city. The defendant then had and still has a residence in the City of Allentown, in charge of servants during her absence. It seems the person in charge of the house failed to inform defendant during her absence, as well as upon her return, of the fact that a summons had been left at her place of residence, and that the defendant at no time had knowledge of this suit until the levy made on January 8th. The defendant certainly was diligent in asserting her rights, if any she had.

In A. J. Kutz & Son, etc., vs. S. M. Skinner, 7 Pa. Sup. Ct., Page 347, the Court held that the granting or refusing of an appeal nunc pro tunc from the judgment of the magistrate was a matter of sound discretion.

Applying the above rule under the circumstances as brought out in this case, and the facts established, the Court is inclined to exercise this discretion and allow the appeal nunc pro tunc.

Now, June 15th, 1914, rule for allowing appeal nunc pro tunc from judgment entered by Robert L. Schiffert in the within proceeding referred to is made absolute.

ISECOVITZ vs. CONESTOGA TRACTION CO.

Collision Between Driver and Trolley Car-NegligenceContributory Negligence-Evidence.

It is the duty of one who is driving across a trolley track at an intersecting street to look for an approaching car before driving on the track, and he is not warranted in assuming that if he first reaches the crossing he may go on, and that then the whole duty of care and vigilance is cast on the motorman.

Where a driver drove across the trolley track at an intersecting street at a slow trot and did not see a car until it struck his horse, the inference is that he failed to exercise proper care in the absence of evidence of excessive speed of the car.

Rule to strike off non-suit. Common Pleas of Lancaster County. August Term, 1910, No. 49.

B. F. Davis, for Rule.
W. U. Hensel, Contra.

July 11, 1914. Opinion by Landis, P. J.

The plaintiff claimed damages for the loss of a horse and injury to his wagon and harness, caused, as he alleged, by the negligence of the defendant. Upon the trial, a judgment of non-suit was entered, and the correctness of that action is the question to which we direct our inquiry.

The testimony taken by the plaintiff disclosed that on July 11, 1910, Maurice Dunie, an employee of the plaintiff, in company with Samuel R. Shade, was driving the plaintiff's horse and wagon, loaded with about 1,000 pounds of hides, down East Vine street, in the city of Lancaster. It was about fifteen minutes. to six in the evening. East Vine street is a wide street, running east and west, and South Duke street is a street of about the same character, running north and south. The car tracks of the defendant company are laid on the last-named street, and the cars run thereon south

ward. Dunie drove down the north side of East Vine street. When he arrived at the street railway track the horse collided with a car. The horse was struck about the flank and was injured so that he had to be killed; the wagon and harness were also damaged, and they were dragged up South Duke street some distance before the car was stopped. Dunie first testified that the car was going at twenty or twenty-five miles an hour; but, on cross-examination, he admitted that he had not seen the car coming, and he only judged the speed from the distance the horse was dragged. One of the other witnesses said the car was going at its ordinary rate, and the rest of the witnesses could not fix its rate of speed. A fair statement of what happened may, from the point of view most beneficial to the plaintiff, be found in the testimony of Dunie and his companion. Dunie said: "I was driving down Vine street on a little jog run, the horse I was driving down on Vine street, going west, with a load of hides, going to Cohn's hide place there to sell it for him, and I was driving down there on a little jog run, jogging along, and as I approached near the corner, the car hit the horse." Again: "I was driving along on a little run; I had a good brake on my wagon, and if I would have heard anything of the car, or the bell ringing, I could have stopped easily; but, when I got near the corner there, I just happened to see the car, just as it hit the horse, and I tried to swing to get out of the road, but it was too late; I swung my left line, but it was too late." Samuel R. Shade testified: "He tried to stop the horse a little too late, and the load was too heavy; it kept shoving him; he went to turn up over toward the south way, and the car struck him then." Taking the facts as thus presented, what is the law which should be applied to them?

"Electric street railway companies have not the exclusive use of their tracks, but, in their use, their rights are superior to those of the traveling public and their cars have the right of way. No one is warranted in assuming that, if he first reaches the crossing, he may go on, and that the whole duty of care and vigilance is then cast on the motorman. The duty to look for an approaching car is an absolute duty, and failure to do so is negligible per se. This duty is not performed by looking when first entering on the street, but continues until the track is

reached." See Burke vs. Union Traction Co., 198 Pa., 497 In Smathers vs. Pittsburgh & Butler St. Ry. Co., 226 Pa., 212, it was held that "it is the absolute duty of a traveler or the driver of a team, at the intersection of two city streets upon which is laid a line of street railway, to look immediately before going upon the tracks, and failure to do so is negligence per se;" and in Talley vs. Chester Traction Co., 227 Pa., 393, that "it is the duty of a driver, before crossing the track of a street railway, to look and to continue to look until the track is reached, and to listen, if his view is obstructed." In Shope vs. Central Penna. Traction Co., 242 Pa., 207, the plaintiff, when injured was driving in a light spring wagon on a city street sixty feet in width, that crossed at right angles a street thirty-five feet wide, on which the defendant's cars ran. His horse was on a slow trot, and was struck on the shoulder the instant it reached the track. It was held that he could not recover. The Court said: "There was no evidence of excessive speed of the car, and the only rational conclusion from the plaintiff's evidence is, that he failed to exercise the care which the law exacts of a driver about to cross the tracks of an electric railway company." In Bane vs. Pittsburgh Railways Co., 243 Pa., 427, it was held that, where the collision occurred within the instant or two which was required for a horse to step across and clear the track, it was, for all practical purposes, instantaneous, and it is apparent that the plaintiff acted in disregard of the simple and effective rule of safety which requires him to look for the car just before entering upon the tracks. In Crumley vs. Phila. Rapid Transit Co., 55 Sup., 599, it was held that, "where the driver of a team undertakes to cross a street railway at a point between street crossings, and fails to look for a car immediately before going upon the tracks, he is guilty of contributory negligence, and, if injured by a collision between his wagon and a car, he cannot recover from the company." In Houston Bros. Co. vs. Consolidated Traction Co., 28 Sup., 374, it was decided that "if the team was so extended that the lead-horse was on the track before the driver had reached a position where he could see whether a car was approaching, the unusual length of a team imposed upon those in charge of it the duty to exercise care according to the circumstances. . . .