"If the plaintiff had no right to use the stairs under his contract of letting, but was simply allowed to use them through courtesy, there is no liability on the part of the defendant." August 20, 1915, the plaintiffs were the owners of property in New Haven upon which stood two buildings. One was a large If the court's treatment of the question block fronting on Chapel street, and the othInvolved in this request was correct, it dis-er a small one-story structure in the rear poses of all the questions raised by the apof the block. Access to the latter building peal. On that could be had only by means of an alleyway [1-3] First, the defendant objected to parol evidence that the defendant designated the apartment in the cellar the plaintiff was to use and occupy in connection with his tenement on the upper floor. The ruling of the court was correct. The plaintiff could show what was intended by both parties to the lease to be included within it. Such testimony does not alter the terms of a written agreement. The only description of the tenement contained in the lease is "five rooms on the top floor of the building as living rooms." The plaintiff surely could show what five rooms were leased, and necessarily there passed with the rooms all other appurtenances provided by the landlord, and intended by him to be used by the tenant in connection with his occupancy of the rooms. The Intention of the parties was a question of fact, and this was properly submitted to the jury by the court, and found adversely to the defendant's claims. This finding in effect dis-occupation, using the lower floor as a garage posed of the defendant's contention that as a matter of the law the plaintiff was occupying the apartment in the cellar, not under and by virtue of his lease, but by the permission of the landlord, and that the plaintiff was a mere licensee. All of the claimed errors of the court hinge upon this ruling. If the plaintiff was occupying the cellar and using the stairway as a tenant, all the other rulings of the court were obviously correct. There is no error. The other Judges concurred. (93 Conn. 29) FERRY et al. v. ALDERMAN. and the upper, when completed, as a workshop in connection with his tailoring business. To the lease was attached a rider containing further stipulations concerning the payment of rent which has been the occasion of the present controversy. stipulations are as follows: Those "In the event that the tenant's access to the said rear building shall be permanently interrupted by the construction of a building in and upon said Leavenworth alley or otherwise, then the tenant at his option may thereupon give up possession of the first or ground floor of the said rear building, and in that event, during the period of this lease, shall continue to rent and hire the second story of the said building at a rental of thirty-five dollars ($35) per month, or at his (Supreme Court of Errors of Connecticut. July option the tenant may continue to occupy the The intended meaning of the language used in a lease must control in its interpretation and enforcement, if the words used are susceptible of such meaning. 2. LANDLORD AND TENANT CONSTRUCTION-RENT. 182-LEASES Lease providing for contingency of tenant's access being permanently interrupted by the construction of a building, "but if the interruption, having previously occurred, shall continue for two years from the date of the lease the tenant will continue to hire the entire building" at a stipulated rental for the full term, bound the tenant to pay the rent for the entire building from a date two years after the interruption of his access by the construction of a building. Appeal from City Court of New Haven; Samuel E. Hoyt, Judge. Action by Emily M. Ferry and others against Samuel Alderman. Judgment for plaintiffs, and defendant appeals. No error. entire rear building at a rental of eighty-three dollars and thirty-three cents ($83.33) per month; but if the said interruption shall occur, or having previously occurred, shall continue, after two years from the date hereof, the tenant will nevertheless continue to hire the said entire rear building at a rental of $1,000 per year. In that event, permission is hereby given to sublease a portion thereof to a tenant whose business shall not be objectionable or prejudicial to other tenants of the building No. 962 Chapel street, and who shall be reasonably satisfactory to the landlords, provided that his occupancy of the premises for the purpose for which they may be used by him shall not increase the rate of insurance on the said rear building or the front building, No. 962 Chapel street, or their con tents." During December, 1915, the owners of the alleyway began the erection of a building covering it. Thereupon the plaintiffs, through their attorneys, wrote the defendant, calling his attention to that fact, and asking him to notify the plaintiffs' agent in charge of the property whether he desired to exer cise the option and to continue to occupy the entire building. The defendant on the same day wrote the agent, saying that he did not care to occupy the ground floor any longer, but would continue to rent the upper floor as theretofore. The ground floor was already vacated, and has not since been used by the defendant. He has continued his use of the upper floor to the present time. August 1, 1917, the plaintiffs sent the defendant a bill for the current month's rent, made out at the rate of $35 from the 1st to the 20th of the month, and of $83.33 for the remainder of the month. The defendant's refusal to pay at a higher rate than $35 per month resulted in the bringing of this action, which was forthwith commenced. in the rendition of its judgment. The in- (260 Pa. 481) WOOD v. PHILADELPHIA RAPID TRANS- (Supreme Court of Pennsylvania. 1918.) March 11, [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Passenger.] PERSONAL INJURY 2. CARRIERS 316(1) GENCE. 284(2)-PASSENGERS-NEGLI The defendant answered, setting up the terms of the lease and the fact of his elec-1. CARRIERS 238-WHO ARE "PASSENGERS." tion thereunder in bar of a recovery in ex- One impliedly invited to enter a car is a cess of $35, and asked by way of counter-passenger, and the carrier is required to exerclaim that the lease be reformed by the cise the highest degree of care and diligence in striking out of the paragraph quoted of the protecting him while entering and going into the body of the car. words "or, having previously occurred, shall continue," so that it should conform to what was alleged to be the understanding and intention of the parties. In support of the prayer for reformation the counterclaim alleges that at the time the lease was drawn it was distinctly understood and agreed be tween the parties that, in the event that the alleyway should be permanently built upon, the defendant should have the option to surrender the first floor of the building, with the qualification, however, that, if the ob struction by the erection of a building should not occur for a period of two years after the signing of the lease, then the defendant was to continue to hire the whole building at a rental of $1,000 per year. The court has found that this was not the understanding and agreement of the parties On the contrary, its finding is that their understanding and agreement, reached after a full discussion of the situation which the location of the building and the proposed enlarge ment and improvement of the property pre sented, and the one which the parties intended that the lease should express, was that, if the interruption of the use of the alleyway should occur within the first two years of the same lease, the lessee should have the right to give up the lower floor during the balance of the first two years only, and that the defendant was to pay for the entire building during the last three years of the lease in any event. Walter J. Walsh, of New Haven, for appellant. Harrison T. Sheldon, of New Haven, for appellees. PER CURIAM. [1, 2] The court's finding as to the understanding and agreement of the parties intended by them to be expressed in the lease which they executed is decisive of the correctness of the action of the court Street cars being for the use of people with or without their luggage, negligence cannot be inferred because a workman is permitted to enter or leave carrying tools, etc., though there might be some piece of machinery or instrument so dangerous that to suffer a passenger to take it with him on a street car would be evidence of the company's negligence, though that could not be affirmed of an iron pipe carried by an alighting passenger. 4. CARRIERS 284(2)-INJURY TO PASSENGER -LIABILITY. In an action for personal injury to a passenger while entering a trolley car from being struck by an iron pipe which a workman who was leaving the car was carrying, where the safety of passengers would not have been promoted by form until all passengers had entered or to requiring the workman to remain on the platleave by another door, the carrier was not liable. 5. NEGLIGENCE 1-MODE OF DOING PARTICULAR ACT. cannot be inferred from the failure to do an Where the facts are simple and not contro- A carrier is only required to interfere with the voluntary acts of passengers when they suggest a reasonable probability that injury will thereby result to others. 8. CARRIERS 284(2)-PASSENGERS-INJURY FROM OTHER PASSENGERS. A carrier is not liable for injury sustained to one passenger from the rudeness, crowding, or jostling of another. 9. CARRIERS 284 (2)-PASSENGERS-INJURY The trial judge charged the jury in effect BY OTHER PASSENGERS' NEGLIGENCE. that as defendant knew the man had the pipe it was its duty to see that he so carried it as not to harm a fellow passenger. The verdicts were for plaintiffs, and the court entered Knowingly to suffer the luggage of a passenger to remain so placed in a car as to endanger other persons is evidence of the carrier's negli gence. Appeal from Court of Common Pleas, Phil- judgments thereon, from which defendant apadelphia County. Trespass to recover damages for personal injury by John L. Wood, in his own right and as executor of the estate of Ellie E. Wood, deceased, against the Philadelphia Rapid Transit Company. Verdict for John L. Wood in his own right for $10,000, reduced by the court to $7,500, and verdict for John L. Wood, executor, for $8,000, reduced by the court to $5,500. Judgment was entered on the verdicts as reduced, and defendant appeals. Reversed, and judgment entered for defend ant. Argued before POTTER, STEWART, MOSCHZISKER, FRAZER, and WALLING, JJ. pealed. In our opinion the judgments cannot be sustained. [1, 2] Mrs. Wood was a passenger and entitled to protection as such. "The carrier, having impliedly invited the plaintiff to enter the car, was required to exercise the highest degree of care and diligence in protecting her while she was in the act of ascending the steps and going into the body of the car." Bickley v. Philadelphia & R. Ry. Co., 257 Pa. 369, 376, 101 Atl. 654, 656. However, Mrs. Wood was not hurt by any instrumentality connected with the means of transportation; hence the accident created no presumption against the carrier, and the burden of proof rested upon the plaintiffs. Penna. R. R. Co. David J. Smyth, of Philadelphia, for appel-V. MacKinney, 124 Pa. 462, 17 Atl. 14, 2 L. R. lant. William T. Connor and Hugh Roberts, both of Philadelphia, for appellee. WALLING, J. This is an action against a delphia & R. Ry. Co., 148 Pa. 180, 23 Atl. 989, A. 820, 10 Am. St. Rep. 601; Thomas v. Phila 15 L. R. A. 416. [3] Street cars are for the use of the peostreet railway company for personal injuries ple, with as well as without their luggage, and negligence cannot be inferred because a to one passenger by the act of another. On the afternoon of February 5, 1915, Mrs. Ellie Workman is permitted to enter thereon carryE. Wood boarded one of the defendant's ing the tools and implements of his trade. north-bound cars in Fifty-Second street, Phil- And the right so to enter implies the right so adelphia, at the Market street intersection. to depart. There might be some piece of maIt is a transfer point, and, as was custom-chinery or instrument so dangerous that to ary at that hour, a group of some 25 people suffer a passenger to take it with him on a were waiting, and they took passage on the street car would be evidence of the company's car with Mrs. Wood, while others, including negligence, but that cannot be affirmed of the a man who carried an iron pipe on his left pipe or bar here in question. shoulder and a canvas bag in his right hand, left the car at the same place. As he alighted from the rear platform, where Mrs. Wood and other passengers were entering, the pipe came in contact with her head, inflicting a scalp wound, on account of which Mr. and Mrs. Wood brought this suit. Thereafter she died, and he prosecuted the case in his own right and as her executor. There was a sliding door on the side of the car at each end; over that in the rear was the [4] There is no suggestion that the man in dicated any want of care in the manner of taking his luggage onto the car or of placing it while there. Nothing is alleged against him until he shouldered the pipe to leave the platform. No complaint is made down to that point, but it is urged that right there the conductor should have required the man to do something different. Counsel suggest that he should have ordered him to go If so, he would have been on a level with through the car and out at the front door. word "Entrance" or "Entrance Only," and over that in front was the word "Exit"; but passengers going out in front of him and of so far as appears passengers left the car at others rushing in behind him-a more daneither end. The conductor was stationed gerous situation, as injury might be caused near the back platform, where he could col- by either end of the pipe. It is also urged lect the fares and look after the rear door. It that the conductor should have required him was an old-fashioned car with seats along the to remain standing on the back platform until sides, and was carrying 7 or 8 passengers as all the incoming passengers had entered. it came to Market street. The man was riding The passage there is narrow, and to require on or near the back platform, and there was a man to stand in it, incumbered with such nothing unusual in his appearance or con- an iron pipe and bag, while 25 passengers duct. The pipe was some 5 feet long and 24 rush by, would increase the danger. Had he inches in diameter, and as carried projected carried the pipe in his hand or under his about 2 feet in front of the man. The con- arm, it would have occupied equal space and ductor knew that people were there waiting been more likely to come in contact with into board the car as the man started to alight, I coming passengers. Our conclusion is that there was no safer method for the man to leave the car than the one he pursued, and that the conductor was not at fault in failing to interfere. There is no evidence that the safety of the passengers would have been promoted had the conductor pursued any one of the courses suggested, or that the hazard was increased by his failure to do so, and nothing that justifies a conclusion to that effect. [5, 6] In the absence of a fixed duty, negligence cannot be inferred from the failure to do an act in some other way, not shown to be safer. The facts being simple and not controverted their legal value is for the court to determine. Davidson v. Lake Shore & M. S. Ry. Co., 171 Pa. 522, 33 Atl. 86; Wolf v. Philadelphia Rapid Transit Co., 252 Pa. 448, 97 Atl. 684. [7] A carrier is required only to interfere with the voluntary acts of passengers when they constitute a breach of the peace or are such as to suggest a reasonable probability that injury will thereby result to others. When the car stopped it required only two or three steps to place the man on the pavement and out of the way. As he was going forward he practically had only to guard the front end of the pipe and that was before his face and held by his hand. The presumption was that he would use due care and we see no reason why the conductor should have anticipated danger. The conditions were not essentially different from those constantly arising. [8] It is well settled that a carrier is not liable for injuries sustained by one passenger from the rudeness, crowding, or jostling of another (Ellinger v. P. W. & B. R. R., 153 Pa. 213, 25 Atl. 1132, 34 Am. St. Rep. 697; Graeff v. Philadelphia & R. Ry. Co., 161 Pa. 230, 28 Atl. 1107, 23 L. R. A. 606, 41 Am. St. Rep. 885), nor for injury from the negligent or willful act of another, unless given an opportunity to prevent it. See Widener v. P. R. T. Co., 224 Pa. 171, 73 Atl. 209; Kantner v. Philadelphia & R. Ry. Co., 236 Pa. 283, 84 Atl. 774; Hillebrecht v. Pittsburgh Rys. Co., 55 Super. Ct. Rep. 204; 10 Corpus Juris, 901. To hold otherwise would render a common carrier an insurer of the safety of its passengers, which it is not. This unfortunate accident resulted from the modern method of travel on electric street railways, and was a risk assumed by the traveler as incident thereto. [9] Knowingly to suffer the luggage of a passenger to remain so placed in a car as to endanger other passengers is evidence of the carrier's negligence. Burns v. Penna. R. R. Co., 233 Pa. 304, 82 Atl. 246, Ann. Cas. 1913B, 811; Diffenderfer v. Penna. R. R. Co., 67 Super. Ct. Rep. 187. And the same rule applies where passengers or trespassers are permitted to engage in a fight upon a car to the terror or danger of other passengers. P., F. W. & C. Ry. Co. v. Hinds, 53 Pa. 512, 91 Am. Dec. 224; Pittsburgh & Connellsville Ry. Co. v. Pillow, 76 Pa. 510, 18 Am. Rep. 424. But those cases are different from this. At popular resorts and other like places where hundreds collect at one time to board the cars, it is sometimes necessary to employ assistants to keep back the people and prevent accidents from crowding. Coyle v. Philadelphia & R. Ry. Co., 256 Pa. 496, 100 Atl. 1005; Kennedy v. Penna. R. R. Co., 32 Super. Ct. Rep. 623. But a transfer point where 20 or 30 people gather to take passage on a street car is not such a place, and none of the cases above cited apply to the facts here presented. The diligence of counsel, supplemented by our own research, has failed to find an analogous case where a recovery has been sustained. Defendant's request for binding instructions should have been granted, as the evidence failed to disclose negligence on its behalf. That not having been done, the court should have granted the motion for judgment non obstante veredicto. This being decisive of the case, it is unnec essary to consider the other questions presented in the record. The first and seventh assignments of error are sustained, and thereupon the judgment is reversed and is here entered for the defendant. (41 R. I. 474) MORRISON v. RHODE ISLAND CO. (No. 5073.) (Supreme Court of Rhode Island. July 2, 1918.) 1. STREET RAILROADS 117(35)—INJURY TO PERSON NEAR TRACK-LAST CLEAR CHANCE -QUESTION FOR JURY. Conflicting evidence in action for injury by street car to person standing near track held to make a case for the jury under the last clear chance doctrine. 2. STREET RAILROADS 103(1)-INJURY— LAST CLEAR CHANCE-DUTY TO SEE. The question of negligence, under the last clear chance doctrine, of the motorman whose car struck a woman near the track, depends, not merely on whether he saw her in time, but whether he could have seen her. 3. STREET RAILROADS 117(17)-Injury to PERSON NEAR TRACK-CONTRIBUTORY NEGLIGENCE-QUESTION FOR JURY, Contributory negligence of person struck by street car using left-hand track, because of work on other, held for the jury, though she did not look for car from that direction; she testifying to ignorance of such use, and to not knowing of approach of car. 4. DAMAGES 132(8)-PERSONAL INJURY EXCESSIVE VERDICT. left arm of woman 26 years old, earning $10.50 A verdict for $16,000 for injury chiefly to per week, held excessive to the extent of $5,000, making allowance for pain and suffering, and conceding 50 per cent. impairment of earning capacity; medical expenses not being shown. Exceptions from Superior Court, Providence and Bristol Counties; Charles F. Stearns, Judge. Action by Rose Morrison against the Rhode For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Island Company. Verdict for defendant brings exceptions. damages sustained, and case remitted. A. B. Crafts and Augustine H. Downing, both of Providence, for plaintiff. Whipple and G. Frederick Frost, Providence, for defendant. Clifford both of plaintiff, and | electric light poles and a row of trees about Exception to 50 feet apart-two of them of considerable size being upwards of 20 inches in diameter, in diameter. The strip for the most part was the others small, ranging from 4 to 5 inches covered with grass. The distance between the easterly rail of the track and the westerly side of the poles and trees was for the most part more than 4 feet, but as to one pole was given as 3 feet and 3 inches and the southernmost large tree as 3 feet and five inches. The overhang of the running board of the car in question when down-as it was shown to be at the time of the accident-was BAKER, J. This is an action of trespass on the case to recover damages for injuries alleged to have been caused by the negligence of the defendant's agents and servants. The case was tried in October, 1916, before a justice of the superior court sitting with a jury, and a verdict was rendered in favor of the plaintiff in the sum of $16,000. The defendant excepted to the refusal of the court to direct a verdict in its favor, to the denial of a motion for a new trial, to a certain portion of the charge to the jury, and to the refusal of the court to charge the jury in accordance with four separate requests made by it, and the case is now before this court on these exceptions. The bill contains four other exceptions, but they are waived. The testimony shows that the plaintiff was struck by an electric car of the defendant corporation at about 20 minutes after 9 o'clock in the evening of June 20, 1915, on Elmwood avenue in the city of Providence at a point a short distance south of its junction with Roger Williams avenue. The plaintiff and a friend, named Thomas Rondina, on the evening in question, had taken a jitney near the city hall in Providence for the purpose of having a ride to East Greenwich. In the car beside the driver were two other passengers, a man and his son, a boy nine years old. As the car proceeded southward, there was a puncture of the tire on its right rear wheel, and the driver drew up alongside the westerly curb on Elmwood avenue in order to make the necessary repairs. In Elmwood avenue at this point are two car tracks, one on each side near the sidewalk, leaving the middle or central portion of the avenue for use by other vehicles. Ordinarily, south-bound cars use the westerly track, and the north-bound cars the easterly track. In June, 1915, owing to the fact that a bridge over a steam railroad track farther to the south was in process of repair, the westerly track was alone used by cars going in both directions between Roger Williams Park on the south and the car barn on the north, a distance of about half a mile. The situation at the place of the accident, more fully described, was this: The car track was practically straight for several hundred feet and was located near the west side walk. Next east of the track was a strip of earth several hundred feet in length, bounded on its easterly side by the westerly street curb, which strip measuring from the said curb to the easterly rail of the track was practically 6 feet in width for its entire length. On it near the curb were trolley and 24 inches. After the jitney drew up to the curb, the the driver and all the passengers got out; the plaintiff and boy after the others, and doing so in order to permit the driver to obtain from under the rear seat certain tools and a fresh tube. Mr. Rondina assisted the driver, while the other three stood upon the strip looking on; the plaintiff standing between the father and son and a little to the rear of them. All the occupants of the jitney say that it was drawn up at or close to a bare spot on the strip, which was shown to be about 70 to 75 feet south of the southernmost large tree and about 100 feet north of an electric light pole and nearly opposite but a little south of a hedge which was a few feet south of a house located on the west side of Elmwood avenue. The plaintiff says she stood about 2 or 21⁄2 feet away from the car track; that she was facing towards the park as she alighted, and there was then no car in sight; that she had not been on Elmwood avenue for seven or eight months, and did not know that the westerly track was then being used by the north-bound cars, or that, when there were two tracks on a street, cars ever ran on the left side of the street; that while watching the fixing of the tire she stood facing the roadway, but in such way that she could see a car coming from the city, as she thought that such a car might strike her where she stood, but did not again look toward the park. Two or three minutes after alighting and while so standing and without having moved, she was struck by the car, a north-bound electric, which she had not before seen or heard, and which was the first car passing after their arrival at the place of the accident. All of the occupants of the jitney say that they neither saw nor heard the electric car until it was upon them, except the driver, who testi; fies that, as he was bending over to pick up a tool from the ground at the rear of his car, he saw the electric car headlight when the car was 20 or 25 feet away and shouted a warning, but it was too late. The speed of the car so far as it was specifically stated by plaintiff's witnesses, some of whom were passengers on the car, ranged from 15 to 25 miles an hour. The jitney was a Ford car, and after it stopped displayed no large headlight, but did show at the front of the car & |