Elliott F. King and Geo. 0. Hopkins, for plaintiff.
F. V. Chase, for defendant.

PER CURIAM. The defendant was occupying the plaintiff’s premises as tenant at will, paying an agreed rent of $8.33 per month. The jury found that early in October, 1885, the parties agreed that for the next month, from October 12th to November 12th, the plaintiff should not be limited to $8.33 rent, but that the defendant should pay a larger sum. It was competent for the parties to so vary the contract, and the use and occupation of the defendant under it, so modified, was a good consideration for it.

We see no error in the rulings excepted to. Exceptions overruled.

PITTSBURGH SOUTHERN RY. Co. v. REED.l
(Supreme Court of Pennsylvania. November 17, 1886.)

1. RAILROAD COMPANIES—CONDEMNATION—VALUE OF LAND TAKEN—EVIDENCE —-WITNESS, COMPETENCY OF—KNOWLEDGE.

Where a witness, who is a farmer, has visited and examined the land through which a railroad runs, within a year of the trial, with aview of buying it, and has, besides, a general knowledge of the value of land in the county, he is competent to express an opinion in regard to its value, and the injury inflicted upon it by the railroad.

2. SAME.

The question, “Taking into consideration the advantages and disadvantages of the location and operation of this railroad, were the owners of this land damaged or benefited, and in what way?” is competent and relevant in an issue to determine the injury caused by the taking of land by a railroad for its roadway.

3. SAME—MEASURE 0F DAMAGES—RAILROAD STATION—DISCONTINUANCE OF. The plaintiff in such an issue cannot recover damages done to her land by reason of the discontinuance of a railroad station on the land of another per8011.

Error to common pleas, Washington county.

This was an appeal by the Pittsburgh Southern Railway Company from the report of viewers appointed to assess the damages arising to a tract of land in North Strabine township, belonging to Ada B. Reed, wife of C. M. Reed, Jr., from the location and construction through it of the defendant’s railway. Upon the trial, before HART, P. J ., plaintiff offered a witness, Lesage Crumrine, to show the value of the land, and the damage done to it. Objected to because he lived 20 miles away, and knew nothing about the values of land in this neighborhood. Objection overruled. Exception. First assignment of error. Defendant offered to ask Robert McCombs, a witness of defendant, the following question: “Taking into consideration the advantages and disadvantages of the location and operation of this railroad, were the owners of this land damaged or benefited, and in what way?” Obj ected to as incompetent and irrelevant. Objection overruled. Exception. Second assignment of error.

Defendant requested the court to charge the jury:

“(1) The plaintiff is not entitled to damages for any alleged depreciation in the value of her land arising from the abandonment of the Brownlee Summit route of defendant’s railroad, and the consequent discontinuance of Brownlee station, with the facilities and advantages which it is alleged to have afforded; and the jury will disregard the opinion, as to depreciation in the plaintiff’s farm, of any witness who stated that his estimate was in part based upon such abandonment and discontinuance, without explaining how much of the estimated depreciation arises from such abandonment and discontinuance, and how much from the location and construction of the defendant’s present line of railroad. Answer. Whether or not the plaintiff is entitled to damages for any alleged depreciation in the value of her land arising from the abandonment of the Brownlee Summit route of defendant’s railroad, and the consequent discontinuance of Brownlee station, with the facilities and advantages which it is alleged to have afforded, is a question of fact for the jury. If you find the fact to be as assumed in the point, you will allow for it in estimating the market value of the land; and you will also determine how far the opinion of a witness based in part upon such abandonment, etc., is affected by the fact so found. ” (Fifth assignment of error.)

“(2) While it is true that, under the law, the advantages to be considered by the jury are only such as are special to the property of the plaintiff, yet it is also true that the advantages accruing to the plaintiff’s farm from proximity of the railroad—such, for example, as the facility of getting produce to market, and bringing coal, lumber, and various natural or manufactured products to the premises—are none the less special because other owners of lands along and in the vicinity of the road also enjoy them. Answer. If the jury find as a fact that there are any such facilities which are special to this property, and not common to other lands in the vicinity, as, for instance, special facilities arising from proximity to the land of a railroad station, then they will take that fact into consideration in estimating the comparative values immediately before and immediately after the location and construction of the railroad.” (Sixth assignment of error.)

Plaintiff requested the court to charge the j ury:

“ (2) That, in estimating the damage done to the plaintiff, the jury are to take into consideration and make just allowance for the value of the land actually taken, and for injuries done to the land not taken; the changing of fences rendered necessary; the cutting off of water from plaintiff’s fields; the inconvenience of crossing the defendant’s tracks; the cost of making additional fences, and of maintaining the same; the loss to the plaintiff of any portion of the land outside that actually appropriated, etc.; and generally all such special items of damage as would tend to depreciate the market value of this property at the date of the completion of defendant’s railroad through it.” (Affirmed. Seventh assignment of error.)

Verdict and judgment for plaintiff, $1,838.70; whereupon defendants took this writ. '

A. W. Acheson, M. C. Acheson, and James I. Brownson, Jr., for plaintiff in error.

Crumrine was clearly incompetent. He knew nothing of values of land in the neighborhood. Pittsburg, etc., Ry. Co. v. McOloskey, 16 Wkly. Notes Gas. 564; S. C. 1 Atl. Rep. 555. The question put to McComb was proper. Railroad Co. v. B'unnell, 81 Pa. St. 414; Canal (12 R. R. Co. v. Madell, 1 Wkly. Notes Gas. 287. Defendant was entitled to an unqualified affirmance of the first point. The second point should have been affirmed. McTerren v. Mont Alto R. Co., 2 Wkly. Notes Gas. 40; Railroad Co. v. Robinson, 95 Pa. St. 426. .

Dougan at Todd, for defendants in error.

Crumrine was competent, as shown by examination on his voir dire. Railroad 00. v. McCloskey, 16 Wkly. Notes Gas. 561; S. C. 1 At]. Rep. 555; Railroad 00. v. Bunnell, 81 Pa. St. 426. The question to McComb was objectionable because the jury are not concerned with the effect of the operation of the road. Railroad Co. v. McChesney, 85 Pa. St. 522; Navigation 00. v. Thoburnn,7 Serg. & R. 410. The defendant’s first point was not properly raised by the evidence. Burd v. McGregor, 2 Grant, Gas. 353.

GREEN, J. We think the witness Crumrine testified to a sufficient acquaintance with the land in question to entitle him to express an opinion in regard to its value, and the injury inflicted by a railroad running through it. He was himself a farmer. He had visited and examined this farm, within a year before the trial, with a view to buying it, and he had a general knowledge of the value of land in the county. This brings him within the decisions as to his competency, leaving the effect or value of his testimony open to the consideration of the jury.

We think the question to McCombs should have been allowed, and therefore sustain the second assignment, though, if there was nothing else in the case, we would scarcely reverse on this ground alone. The questions covered by the third and fourth assignments were of a very trifling character, tending rather to show feeling than any matter of importance; and, in this view, it was hardly error to permit them.

The fifth assignment is of more importance. The question propounded by the defendant’s first point was a question of law to be determined by the court, and the point should have been distinctly affirmed just as it stood. Instead of that, the court, without answering it as a question of law, in reality denied it, by telling the jury that it was a question of fact; and that, if they found the fact to be as assumed in the point, they should allow for it in estimating the value of the land. The fact in question was the discontinuance of a railroad station on the land of another person, which, of course, could not be an element in estimating the damage done to the plaintiff’s land by the location of the defendant’s road. This assignment is sustained.

Sixth assignment. We do not at all understand the answer to the de— fendant’s second point to be a disaffirmance of .the point. On the contrary, as we read the answer, it was an affirmance of it. The idea of the point was that, although other owners might enjoy the benefit of the same facilities as the plaintiff from the proximity of the road, that circumstance did not diminish the special character of these facilities in the estimate the jury should place upon them in considering the advantages resulting from them to the plaintiff. The court said if there were any such facilities special to this property, and not common to the lands in the vicinity, “as, for instance, special facilities arising from proximity to the land of a railroad station,” the jury should take that fact into consideration. Now, special facilities arising from proximity to the land of a railroad station are necessarily facilities also enjoyed by the neighboring owners, as Well as by the plaintiff. In one sense, therefore, they are common toall in the vicinity; yet the court said the advantage the plaintiff derived from such proximity was a matter to be considered by the jury in determining the comparative value of the land immediately before and after the location and construction of the road. In other words, the defendant obtained the benefit of whatever advantage accrued to the plaintiff from the proximity of the station, although the same advantage would necessarily be enjoyed by neighboring farmers. We do not see how a simple affirmance of the point, which, of course, might have been made, would have been of any greater benefit to the defendant than the answer that was given.

We see no error in the answer to the plaintiff’s second point, covered by the seventh assignment.

Judgment reversed, and venire de novo awarded.

DELAWARE & HUDSON CANAL Co. v. WEBs'rER.l
(Supreme Court of Pennsylvania. October 4, 1886.)

NEGLIGENCE—CONTRIBUTORY NEGLIGENCE—PASSENGER ALIGHTING FROM Movme TRAIN—SPEED 0F TRAIN.

It is not negligence per 86 for a passenger to get off a car that is moving slowly, in response to an invitation by a person in charge of the train. When there is doubt whether the speed of the train was so rapid as to render it clearly dangerous to get off, the fact is for the jury.2

Error to common pleas, Wayne county.

Case, by Gilbert L. Webster, against the president, managers, and company of the Delaware & Hudson Canal Company, to recover damages for personal injuries to plaintiff caused by defendants’ alleged negligence.

Defendants operate a gravity railroad between Carbondale and Honesdale. The cars run on a moderate down grade, between the inclined planes, and are controlled by means of brakes. They are light, and easily stopped by the brakes; the practice being to stop at almost any point where passengers desire to get on or off. No locomotives are used, and the cars are drawn up the inclined planes by stationary engines; the down grades being called “levels.” The only intermediate point on the road Where a depot is maintained is at Waymart, about 10 miles from Honesdale; and while there were many other places that were understood by the conductors, and those who frequented the road, as stopping places where there were passengers to get on or ofl‘, there was nothing to indicate these stopping places,—-not even a platform, nor the crossing of a public road. About a mile and a half below Waymart is a place called

“Keen’s Saw-mill.” On December 17, 187 9, plaintiff started to go to the house of his son-in-law, Ara Jenkins, a few rods from Keen’s sawmill. He did not know whether Keen’s mill was a regular stopping place or not, though he knew where Jenkins lived. He asked the ticket agent at Waymart if he could “get a ticket so he could get off down at Keen’s mill,” and was given to understand that he could. He bought a ticket marked “Keen’s.” The conductor understood that he was to get off at Keen’s mill, and had promised to let him off at that point. The cars were stopped at George Keen’s house, about half a mile below Keen’s mill, to allow passengers to get off. When nearing Keen’s mill, the conductor applied the brakes, the plaintiff came out on the platform of the car, with a paste-board milliner’s box in his hands, preparatory to getting off. The conductor stood at the brakes, and the speed of the train was slackened so that it was moving about as fast as a man would ordinarily walk, or perhaps a little slower. They had passed Keen’s mill, and, when opposite J'enkin’s house, the conductor told plaintiff to get off. Plaintiff was then standing on the car-step. The conductor again told him to get off. Plaintiff not getting off, the conductor told him a third time to get off. The conductor’s testimony was that, when opposite J enkin’s residence, the conductor asked plaintiff where he was going. The latter replied, “I am going right here,” and moved toward the platform steps. The conductor said, “Wait till we stop.” Plaintiff then stepped off, and, in some way, the car struck him, and knocked him down, and permanently injured his hip joint.

On the trial, defendant’s counsel requested the court to instruct the jury that the evidence showed contributory negligence on the part of plaintiff, and hence there could be no recovery. This was refused, and they were instructed that they were to decide whether the facts in evi— dence constituted contributory negligence on the part of the plaintiff.

During the trial, plaintiff offered the deposition of Dr. Garrison, taken in Florida, on a commission to C. Codrington. This was objected to because the commissioner had made and signed no return to his commission, and because the paper showed, upon the face of it, that the answers to the cross-interrogatories were neither written by the commissioner, nor at his office, the ink being entirely different from all that used by the commissioner, but that they were written by some person, and brought to the commissioner’s office, and signed there by the witness. Objection overruled.

Verdict and judgment for plaintiff, $3,000; whereupon defendants took this writ.

H. Wilson and W. H. Dimmick, forlplaintiffs in error.

The evidence was not sufficient to show negligence on the part of defendant, and should not have been submitted to the jury. Railroad Co. v. Fries, 87 Pa. St. 234; Glassey v. Railway Co., 57 Pa. St. 172; Railroad Co. v. McElwee, 67 Pa. St. 315; Gramlich v. Wurst, 86 Pa. St. 74; McKee v. Bidwell, 74 Pa. St. 218; Hoag v. Railroad Co., 85 Pa. St. 297, and cases cited; Baker v. Fehr, 97 Pa. St. 72, and cases cited; Railroad Co. v. Fortney, 90 Pa. St. 323; Goshor'n v. Smith, 92 Pa. St. 435; Railway Co. v. Walling, 97 Pa. St. 55. It was neg