In view of these instructions, we do not think the defendant has a right to complain. We feel more satisfied to reach this conclusion, because, in our judgment, although we are not the judge of the facts, the circumstances relied upon by the defendant to show the existence of extraordinary conditions on the day of the accident had very little, if anything, to do with the catastrophe.

4. The third, fifth, seventh and eighth reasons for a new trial should be considered as one, because they complain of the same instruction. In regard to other accidents occurring near the same point on the Bailey Hill road, the condition of the road substantially remaining the same, we used the following language to the jury:

"Evidence has been admitted to other accidents occurring prior to the Beardslee accident. This evidence is deemed to be proper in a case of this kind because, with the other evidence in the case, it ought to have some weight, and will undoubtedly have some weight, with the jury in deciding as to whether the place is dangerous or not. You must not by any means consider it conclusive, because accidents do occur on very level roads. Neither must you give it too much weight for another reason. Township authorities have a right to put barriers and guard-rails and fences where no accidents have taken place, and not because of any accidents, but may be from extra caution. The reason why road authorities will put up barriers is not always clear, and the reason why they do not is not always clear, but this evidence is admitted by the law more particularly to throw some light on the question as to whether the place where the barrier is subsequently built is dangerous or not. You have a right to consider it in the light of these instructions that I have given you."

It is conceded by defendant's counsel that testimony as to other accidents is admissable for the purpose of proving notice to the township authorities of the condition of the road. The fact of notice was not disputed during the trial of the case. Whatever the condition of the road was the road commissioners admittedly had known of it for several years. As a matter of precaution the plaintiff proved actual notice to the authorities on several occasions previous to the Beardslee accident. This was unnecessary, as the defense had no contention on this point.

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But why cannot other accidents, occurring at the same point, the conditions being the same, be considered with the other evidence in the case on the question of the dangerous character of the road? Notwithstanding the diligence of counsel on both sides, our attention has not been called to any case in Pennsylvania ruling this exact point. There are several cases in other states admitting such evidence for the purpose specified. In Wooley vs. Grand Street and Newton R. R. Co., 83 N. Y. 122, Folger, C. J., says: "It was not error to receive testimony of the fact that there had been other accidents at the same switch. That fact was competent to be laid before the jury. It might be explained as from other cause than the switch; but, as a fact, we do not see why in the first instance it was not competent. The plaintiff had a right to show that the switch caused harm to others. One step on the way to that was to show that at the place where the switch was others had been harmed." The U. S. Supreme Court holds that the evidence complained of is competent for both purposes, that of proving notice of the condition of the road and the dangerous character. The objection that such evidence tends to introduce collateral issues is answered by Justice Field in the case of District of Columbia vs. Armes, &c., 107 U. S. 519. We feel justified at quoting at some length from the opinion:

"On the trial, a member of the Metropolian police, who saw the deceased fall on the sidewalk and went to his assistance, was asked, after testifying to the accident, whether, while he was on his beat, other accidents had happened at that place. The court allowed the question against the objection of the city's counsel, for the purpose of showing the condition of the street and the liability of other persons to fall there. The wltness answered that he had seen persons stumble over there He remembered sending home in a hack a woman who had fallen there, and had seen as many as five persons fall there.

"The admission of this testimony is now urged as error; the point of the objection being that it tended to introduce collateral issues and thus mislead the jury from the matter directly in controversy. Were such the case, the objection would be tenable; but no dispute was made as to these accidents; no question was raised as to the extent of the injuries received; no point

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was made upon them; no recovery was sought by reason of them; nor any increase of damages. They were proved simply as circumstances which, with other evidence, tended to show the dangerous character of the sidewalk in its unguarded condition. The frequency of accidents at a particular place would seem to be good evidence of its dangerous character; at least it is some evidence to that effect. Persons are not wont to seek such places and do not willingly fall into them. Here the character of the place was one of the subjects of inquiry to which attention was called by the nature of the action and the pleadings, and the defendant should have been prepared to show its real character in the face of any proof bearing on that subject.

"Besides this, as publicity, was necessarily given to the accident, they also tended to show that the dangerous character of the locality was brought to the attention of the city authorities.

"In Quinlan vs. Utica, 11 Hun 217, which was before the Supreme Court of New York, in an action to recover damages for injuries sustained by the plaintiff through the neglect of the city to repair its sidewalk, he was allowed to show that while it was out of repair other persons had slipped and fallen on the walk where he was injured. It was objected that the testimony presented new issues which the defendant could not be prepared to meet, but the court said: 'In one sense, every item of testimony material to the main issue introduces a new issue; that is to say, it calls for a reply. In no other sense did the testimony in question make a new issue. Its only importance was that it bore upon the main issue, and all legitimate testimony bearing upon that issue, the defendant was required to be prepared for. This case was affirmed by the Court of Appeals of New York, all the judges concurring, except one, who was absent. 74 N. Y. 603.”

The argument that evidence of other accidents tends to multiply collateral issues is equally pertinent when such evidence is used to prove notice to road authorities, and no question is raised as to its admissibility for this purpose. We do not think any error was committed on this point.

The other reasons for a new trial are of a formal character and have not been pressed in the argument.

The reasons for a new trial in this case are overruled and a new trial is refused.

The Spring Brook Water Supply Company and The Spring Brook Water Company vs. M. J. Kelly et. al.

Common Pleas of Lackawanna County, No. 3, September Term 1898, in equity.

Water Company-Land necessary for proper enjoyment of franchise— Taxes.

Land indispensably necessary for the proper enjoyment of the franchises and the carrying out of the purposes of a water company so as to enable it to furnish pure water to the public, is exempt from local taxation, but the burden is upon the company to clearly show that it is so. This is not an exemption given by statute but is the result of judicial decision and the extent to which it shall prevail in any given instance is therefore eutirely within the control of the courts to be determined by the facts which there exist.

Lands acquired and held by a water company by purchase or condem nation, contiguous to the streams of water or reservoirs from which water is taken for public use may properly be regarded as necessary for the corporate purposes of the company purchasing or condemning them, and are exempt in its hands from local taxation.

Bill to restrain collection of taxes on unseated lands in Spring Brook township.

L. A. WATRES, for plaintiffs.

O'BRIEN & KELLY and WILLARD, WARREN & KNAPP, for defendants.

ARCHBALD, J., November 9th, 1899.-This is a bill to restrain the collection of taxes on certain unseated lands in Spring Brook township in this county.

THE FACTS.

1. The Spring Brook Water Supply Company was incorporated under the laws of the State of Pennsylvania March 2, 1896, for the purpose of "supplying water to the public, and the supplying, storing, and transportation of water and water power for commercial and manufacturing purposes in the district composed of the counties of Lackawanna and Luzerne." Its capital is $1,000,000, and its chief place of business is located in Luzerne county.

2. In order to carry out the purposes of its incorporation, on March 31, 1896, it leased for the term of fifty years all the property, real, personal, and mixed, of the Spring Brook Water Company, covenanting and agreeing to carry out the purposes of the said company which was itself incorporated under the

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laws of this state July 25, 1884, with a capital of $50,000 for the purpose of supplying water to the public in the borough of Pleasant Valley, "and to the persons, partnerships, and associations therein and adjacent thereto."

3. At the time of entering into the said lease the Spring Brook Water Company was and still is the owner in fee of the following warrantee tracts of land in Spring Brook township, Lackawanna county: Paul Baldy, 444 acres; Charles Hall, 444 acres; David Hurley, 444 acres; Samuel Young, 400 acres; John Kidd, 400 acres; Timothy Bronson, 400 acres; Thomas Starr, 400 acres; and Sarah Richards, 400 acres; also parts of the following warrantee tracts, to wit: Of the Jasper Ewing, about 390 acres; of the Nathan Starr, 350 acres; of the Benjamin Heacock, 55 acres; of the Levi Benedict, 205 acres 44 perches, and 25 acres adjoining of the Lydia Bonnam, together enclosing and embracing Maple Lake; 195 acres of the Jeremiah Parker; 200 acres of the Charles Bennett in one piece and 3 acres in another; of the Ishmael Bennett 350 acres; of the Andrew Bennett about 300 acres, only 104 acres of this however is unseated; of the David Richards, 300 acres; of the John Millett, 250 acres; and of the Andrew Millett, 300 acres; making a total of about 6,200 acres. The location of these lands will fully appear by a map which accompanies and is made a part of this report, the lands of the water company being outlined in red.

4. The Spring Brook Water Supply Company, upon its organization, absorbed some 26 other and smaller companies including the Spring Brook Water Company, whose stock it owns. It is engaged in the business of supplying water for domestic and commercial purposes, to the cities of Wilkes-Barre and Pittston, and to a part of the city of Scranton; to the boroughs of Taylor, Moosic, Old Forge, Pleasant Valley, West Pittston, Wyoming, Forty-Fort, Kingston, Luzerne, Plymouth, Ashley and Parsons, and to the towns and villages of Bellevue, Minooka, Duryea, Smithville, Dorrancetown, Edwardsville, Hanover, Warrior Run, Sugar Notch, Miners' Mills and Plains; or, in other words, to the general public of the lower Lackawanna and Wyoming valleys, comprising about 200,000 people and including some 25 or 30 collieries and manufacturies.