involving the right of minors to recover, where | tered judgment for the defendant on the trains are started at crossings without warning, whole record because it found as a matter of have no application to those of adults. Conceding that the plaintiff was directed by the law that the plaintiff was guilty of negligence brakeman to cross over the cars, will that re- which contributed to the injuries for which lieve him from the charge of negligence? We the action was brought. We think the plaindo not think so, on that ground that the plain- tiff's negligence was a question for the jury, tiff was bound to exercise due care, and cannot rely on the invitation of the brakeman where and that therefore it was error to enter judgto do so was clearly hazardous. 3 Elliott on ment for the defendant. Railroads, § 1171; Chicago, Burlington & Quincy R. R. Co. v. Sykes, 1 Bradw. (1 Ill. App.) 520; Lake Shore & Mich. So. v. Pinchin, 112 Ind. 592, 13 N. E. 677; Deery v. Camden & Atlantic R. R. Co., 163 Pa. 403, 30 Atl. 162; Rothstein v. Penna., R. R. Co., 171 Pa. 620, 33 Atl. 379. Nor would the moving of the train without warning make the defendant liable under the facts of this case. O'Mara v. Delaware & Hudson Canal Co., supra, Wherry v. Duluth, Missabe & Northern Ry. Co., supra, and Magoon v. Boston & Maine R. R. Co., supra. The Verdict for the plaintiff for $4,860. court entered judgment for defendant non obstante veredicto. Plaintiff appealed. Argued before MESTREZAT, POTTER, STEWART, and MOSCHZISKER, JJ. Meredith R. Marshall, Rody P. Marshall, and E. T. Adair, all of Pittsburgh, for appellant. Allen T. C. Gordon and William Watson Smith, both of Pittsburgh, for appellee. PER CURIAM. The judgment non obstante veredicto in favor of the defendant is affirmed on the opinion filed by the learned court below in entering the judgment. (252 Pa. 12) KLINGMANN v. PITTSBURGH RYS. CO. STREET RAILROADS 117(28)-OPERATION- In an action for injuries from a collision between the wagon driven by plaintiff and a trolley car, evidence held to present a question for the jury whether plaintiff who saw the trolley car 250 to 300 feet distant and a passenger signaling it to stop was justified in believing he had time to cross the track before the car. From the plaintiff's testimony, it appears that on the day of the accident he was driving a laundry wagon west, towards the city, on Penn avenue, Pittsburgh. At Thirteenth street he turned to the left to drive south on that street and his wagon was struck between the front and rear wheels by defendant's car which was going east on the outbound track on Penn avenue. The plaintiff testified that when he entered Thirteenth street and pulled over on the other track the street car approaching from the west was 250 to 300 feet from him, and other witness es testified that the car was at least half a block distant. He said he could not tell how fast the car was moving. The plaintiff also testified that he saw a person standing at the corner of the avenue and street signaling the car to stop by waving an umbrella. This person testified that he was waiting for a street car which he intended to board, that he signaled it to stop by waving his umbrella when it was fully half a block away, that he saw the wagon as it approached Thirteenth street and pulled on the east or outbound car track, that the car was then about 200 to 220 feet west of Thirteenth street and was moving 20 to 25 miles an hour. There was other and corroborative testimony introduced by the plaintiff, and whether it was conflicting and disclosed negligence on the part of the plaintiff, as contended by defendant, was for the jury. The evidence does not clearly disclose that the plaintiff failed to observe the care required of him by looking for the approaching car after he entered Thirteenth street; on the contrary, the jury could have found from the evidence that he did take this precaution and was constantly [Ed. Note.-For other cases, see Street Rail-looking out for the car. Assuming what the roads. Cent. Dig. §§ 250, 255; Dec. Dig. ~~ jury might have found, the plaintiff saw the 117(28).] car approaching the crossing when it was Appeal from Court of Common Pleas, Alle 250 or 300 feet distant from Thirteenth street gheny County. Action of trespass by Albert H. Klingmann against the Pittsburgh Railways Company for personal injuries. From a judgment for defendant on the whole record, plaintiff appeals. Reversed, with a procedendo. Argued before MESTREZAT, POTTER, STEWART, and MOSCHZISKER, JJ. Thomas M. Marshall and Thomas M. Marshall, Jr., both of Pittsburgh, for appellant. Richard C. Long, Clarence Burleigh, and Wm. A. Challener, all of Pittsburgh, for appellee. and was turning into the street or was in the street about to cross the east-bound track. He also saw the prospective passenger signal the car to stop, which he might well assume it would do. Under these and other circumstances disclosed by the evidence, it was for the jury, and not for the court, to declare as a matter of law whether he was justified in believing he had time to cross the east-bound track before the car, if operated at its usual and a proper speed, would reach Hamilton v. Consolidated Traction Co., 201 Pa. 351, 50 Atl. 946. it. PER CURIAM. The jury disagreed and The judgment is reversed, with a procewas discharged. Subsequently, the court en-dendo. On motion for new trial, there being no special findings, the court cannot determine whether the jury found all of plaintiff's three propositions sustained, any one of which would entitle it to verdict, or only one or two of them. [Ed. Note.-For other cases, see New Trial, Dec. Dig. 168.] 2. NEW TRIAL 168-MOTION IN SUPREME COURT-EXCEPTIONS-ABSENCE-EFFECT. In the absence of exceptions, it must be assumed that instructions were satisfactory to the party moving for new trial in the Supreme Court [Ed. Note.-For other cases, see New Trial, Dec. Dig. 168.] 3. NEW TRIAL 168-MOTION IN SUPREME COURT-FINDINGS OF LOWER COURT. In an action for infringement of a shoe manufacturing company's right to use a common entrance to the building of which it owned half, where there was sufficient evidence to justify the jury in finding that defendant narrowed by 27 inches the original hallway, 76 inches wide, the Supreme Court on motion for new trial will not disturb the finding that by so narrowing the hallway defendant infringed the company's right to a suitable and convenient pas sageway. [Ed. Note.-For other cases, see New Trial, Dec. Dig. 168.] On Motion from Supreme Judicial Court, Androscoggin County, at Law. Action by the Ashe, Noyes & Small Company against N. F. Woodbury. There was verdict for plaintiff, and defendant moves for new trial. Motion overruled. of; such common use thereof to extend only so far as the first floor of said building." The entrance referred to in the deed con sisted of a flight of several steps parallel with and about 5 feet north of the divisional wall, leading into the building from the ground on the westerly side and up to the first floor. There was at the top of the steps a narrow hallway extending from in front of the steps south to the divisional wall. The then existing east side of the hallway was a wooden partition extending north from the brick wall and at right angles to it. After the plaintiff acquired its title a doorway was cut through the divisional wall at the south end of the hallway and two doors hung in it, one of wood, on the south side, to swing from east to west, and the other of iron, on the north side, to swing from west to east. The defendant on January 20, 1910, acquired title by deed to the north section of the building subject to the plaintiff's right to use the common entrance as specified in its deed from Day. From the time the plaintiff acquired its title to the time of the defendant's deed and his occupation thereunder the easterly side wall of the hallway remained as it was at the time of the plaintiff's purchase, and the plaintiff constantly used the hallway in passing to and from its premises, maintaining the iron door as it was originally hung. The plaintiff alleged that the defendant wrongfully removed the iron door and refused to replace it or permit it to be replaced. The defendant admitted the act, but claimed that the plaintiff had no right to use the iron door as it was used, swinging in Argued before SAVAGE, C. J., and CORN-over the hallway, and that such use materialISH, KING, HALEY, HANSON and PHIL-ly interfered with his rightful enjoyment of BROOK, JJ. Oakes, Pulsifer & Ludden, of Auburn, for plaintiff. Harry Manser, of Lewiston, for defendant. KING, J. This case comes up on a motion for a new trial by the defendant. It is an action on the case for an alleged infringement of the plaintiff's right to use a common entrance to a certain brick building in Auburn, Me. The building was formerly owned by one Horace C. Day and used as a shoe factory. A divisional brick wall extending through the building from west to east divided it into two sections. On April 2, 1904, Day sold and conveyed to the plaintiff the south section of the building, together with the following right or easement in the north his own property. The plaintiff also alleged, and introduced evidence tending to show, that the defendant had moved the eastern side wall of the hallway westerly about 28 inches, narrowing the hallway that much, the plaintiff's and thereby infringing on rights to the use of the common entrance. He This the defendant strenuously denied. contended that soon after he purchased the north section he moved the easterly wall of the hallway 20 inches east of where it was when he bought, that about two years after that he moved it back to its former place, and that the last change he made, just prior to this action, was to rebuild the partition, in doing which he placed the new partition against the westerly side of the old one, so that, in fact, the westerly face of the new wall or partition is about 7 inches He claims west of the face of the old one. however, that the hallway has been actuaily narrowed only 3 inches, since a steam coil or radiator was removed from the west side of the old partition, which occupied about 4 inches of the space now taken by the new partition. 97 A-9 It appears from an examination of the rec- [ pose to comment here on this conflicting tesord that the plaintiff contended at the trial for three propositions, any of which if sustained would entitle it to a verdict: timony. We have examined it with much care, and we do not feel that it warrants a conclusion that the jury could not have found with reasonable justification that the defendant had moved the easterly wall of the hallway as the plaintiff claimed he had done. (1) That the plaintiff was entitled at least to a suitable and convenient passageway to and from its premises through the common entrance, and that the defendant had so narrowed the hallway as to interfere with the plaintiff's reasonable and necessary use of the common entrance as such passageway. (2) That in removing the iron door the defendant has unlawfully interfered with the plaintiff's reasonable and necessary enjoy-proximately 76 inches wide. The jury viewed ment of its easement. (3) That the easement granted gave the plaintiff the right to the use of a particular entrance consisting of a stairway and hallway then existing of definite and fixed limits, and that it was entitled to use, in common with others, all of the common entrance as it existed at the time of the grant of the easement, and not merely a suitable and convenient passageway through the entrance and, accordingly that any diminution of the common entrance by the defendant without the plaintiff's consent was an infringement of its rights. [1, 2] The jury found for the plaintiff and assessed damages of $1. The court under this motion cannot determine whether the jury found all of the plaintiff's propositions sustained, or only one or more of them. There were no special findings, and it does not appear what instructions were given the Jury. In the absence of any exceptions it must be assumed that they were satisfactory to the defendant. The defendant now contends in argument that the plaintiff's third proposition is not sound in law. But it is apparent that that question does not become material, under this motion to set aside the verdict, unless it can be held that the jury were not justified in finding for the plaintiff on either the first or second proposition. Moreover, we have no information that the court did not rule on the third proposition in the defendant's favor, thereby limiting the issues to the first two propositions. The defendant's brief seems to indicate that he did so rule. [3] If the easterly wall of the hallway at the time the easement was granted was where the plaintiff contends it was, about 27 inches farther east than it now is, then the original hallway must have been ap the common entrance as it was at the time of the trial, and saw the situation. If they found the hallway had been reduced in width by the defendant as claimed by the plaintiff, which would be to the extent of one-third of its original width, then, we think, this court cannot reasonably hold that they plainly erred if they also decided that the defendant, by so narrowing the hallway, had interfered with the plaintiff's reasonable and necessary use of the common entrance. The south section of the building was and is used by the plaintiff as a shoe factory, its employés using the common entrance in passing to and from the factory, and it was also used to some extent in taking freight and express in and out of the factory. Assuming, then, though not so deciding, that the easement granted should be construed as giving the plaintiff only the right to a suitable and convenient passageway through the common entrance, and that is the defendant's contention, still there was sufficient evidence in the opinion of the court to justify the jury in finding that the defendant had by narrowing the hallway of the entrance infringed the plaintiff's rights even as so limited. The jury may have based their verdict on such a finding. We cannot determine that they did not. It is therefore the opinion of the court, considering the motion in the most favorable aspect for the defendant, that it is not made to appear that the verdict is clearly wrong. Motion overruled. (115 Me. 32) DONNELL et al. v. G. G. DEERING CO. (Supreme Judicial Court of Maine. April 17, 1916.) RIGHTS OF PARTIES. TITLE AND Substantially all the testimony centered I about the issue whether or not the defendant had narrowed the hallway by moving the easterly wall thereof west, and, if so, to what extent. The plaintiff introduced much testimony tending to support its contention that the defendant had moved the easterly | 1. CHATTEL MORTGAGES 129 wall of the hallway west 27 or 28 inches. The defendant, on the other hand, also introduced much testimony tending to show that he had not encroached on the hallway as it existed when the easement was granted, except to the extent of 7 inches in gross, and that the usable hallway had been narrowed [Ed. Note. For other cases, see Chattel Mortonly 3 inches. It will serve no useful pur-gages, Cent. Dig. § 216; Dec. Dig. 129.] A chattel mortgage carries the whole legal title to the property to the mortgagee, conditionally, and, if the condition is not performed, the mortgagee's title becomes absolute at law; the equity of redemption, and he has no rights in only right remaining in the mortgagor is the it incident to ownership. 2. CHATTEL MORTGAGES ~170(1)—RIGHTS OF [Company. Heard on report. Judgment for PARTIES-INJURY BY THIRD PERSON. defendant. Argued before SAVAGE, C. J., and CORNISH, KING, HALEY, HANSON, and PHILBROOK, JJ. Mc A mortgagor's permissive possession and use of the mortgaged property, unless otherwise agreed, does not entitle him as against the mortgagee to the benefit of damages for wrong; ful injuries to the property, and, if it is injured by a third party, the mortgagee may recover J. M. Trott, of Bath, for plaintiffs. damages as incident to his title as distinguished Gillicuddy & Morey, of Lewiston, for defendfrom his possession or right to possession; ant. though the right of present possession is essential to maintain an action for an injury to the possession. [Ed. Note. For other cases, see Chattel Mortgages, Cent. Dig. § 305; Dec. Dig. 170(1).] 3. CHATTEL MORTGAGES 170(1)—INJURY TO POSSESSION-RIGHT OF MORTGAGOR. Although a mortgagor in possession may maintain trespass for an injury to his right of possession and therein recover, by way of aggravation, for injury to the property itself, the right to such damages is only incidental to the right of action for an injury to the possession and is subordinate to the mortgagee's right to recover for damages to the property itself. [Ed. Note. For other cases, see Chattel Mortgages, Cent. Dig. § 305; Dec. Dig. 170(1).] 4. SHIPPING 32- MORTGAGE RIGHTS OF PARTIES DAMAGES FROM COLLISION. Plaintiffs, as representatives of the owner of 78/128 of a schooner, whose mortgages there of had been foreclosed, were not entitled as against the mortgagees to a share of the proceeds received on compromise of a collision matter consequent upon a collision occurring while the mortgagors owned the equity of redemption, as the right to such proceeds was in the mortgagees as an incident of their title. [Ed. Note.-For other cases, see Shipping, Cent. Dig. §§ 102, 103, 105, 106; Dec. Dig. 32.] 5. CUSTOMS AND USAGES 3 SALES OF SHARES IN VESSEL-CUSTOM-RIGHT TO DEBITS AND CREDITS. A general, well-known, and recognized usage pertaining to transfers of shares of vessels that after an ordinary bill of sale is given, without any condition or reservation, the buyer takes the shares, debits, and credits, that is, that all debts follow the vessel and all credits due the vessel, if any, go to him, is not contrary to the established principles of law, nor repugnant to the contract of the parties nor unreasonable, as it is often impracticable for the seller and buyer to determine the financial standing of the vessel at the time of sale, and hence governs the sale. [Ed. Note.-For other cases, see Customs and Usages, Cent. Dig. §§ 2, 6; Dec. Dig. 3.] KING, J. This action for money had and received comes up on report. The material facts are these: William T. Donnell in his lifetime was the owner of 73/128 of the schooner Alice M. Colburn, and on December 1, 1915, he mortgaged 65/128 of said schooner to the Lincoln National Bank of Bath, Me., to secure $16,000. That mortgage was transferred to the First National Bank of Bath. Mr. Donnell, the mortgagor, acted as agent for the vessel until his death. He died in October, 1910, and the plaintiffs are the administrators of his estate. In the early part of March, 1911, the Colburn was materially injured in a colMarch lision with the steamer Trafalgar. 8, 1911, the bank began foreclosure proceedings of its mortgage, and the foreclosure became complete May 9, 1911. Soon after that the defendant became agent for the Colburn, succeeding the plaintiffs, who had acted as agent since the death of the mortgagor. June 30, 1911 the administrators of the estate of Wm. T. Donnell (the mortgagor) executed a bill of sale to the bank of the 65/128 of the schooner. They claim it was not de-. livered until November following. It was given apparently to perfect, if necessary, bank's title under the foreclosure. the At the time the defendant became agent for the Colburn, she was in debt $3,127.83, including a balance of $1,500 on the repair bill of $2,500 occasioned by the collision. Sep. tember 14, 1911, the defendant rendered an account showing the net indebtedness then to be $1,696, and asked the owners to send checks for their respective portions of that deficit. The bank paid the assessment on its 65/128. The plaintiffs did not remit for 6. SHIPPING28-RIGHTS OF BONA FIDE the assessment on the remaining 8/128, but PURCHASER. A lien for a maritime tort accompanies the vessel into the hands of even a bona fide purchaser. [Ed. Note. For other cases, see Shipping, Cent. Dig. § 91; Dec. Dig. 28.] 7. SHIPPING 27-SALE FREIGHT. RIGHT TO that was liquidated by the application of subsequent dividends. October 18, 1911, the bank sold at auction the 65/128 to the defendant for $11,200. The bill of sale of the same was dated November 29, 1911. Of the other 8/128 of said vessel, owned at The purchaser of a vessel, unless it is oth- one time by Wm. T. Donnell, 6/128 were erwise provided by the sale, on taking posses- mortgaged to the People's Safe Deposit & sion, takes the right to all freights then ac- Savings Bank of Bath. That mortgage was cruing, and succeeds to any liens which the sell-foreclosed by proceedings commenced Novemer had to enforce payment of such freight. [Ed. Note. For other cases, see Shipping, Cent. Dig. 90; Dec. Dig. 27.] ber 22, 1911, and the foreclosure became complete January 22, 1912. On February 13, 1912, the Bath Trust Company, receiver of Report from Supreme Judicial Court, Sag- the People's Safe Deposit & Savings Bank, adahoc County, at Law. sold and conveyed those /128 to G. G. DeerAction by Harry H. Donnell and others, ing. The estate of Wm. T. Donnell then administrators, against the G. G. Deering had left 2/128 of said vessel. On or before August 1, 1912, the defendant as agent for said vessel settled by compromise the Trafalgar collision matter, receiving in gross $4,600, and gave credit to the vessel for the same in its dividend statement of August 1, 1912. It sent the plaintiffs such a statement with a check for the dividend on their 2/128. In this action the plaintiffs claim to recover 71/128 of the net amount which the defendant received in settlement of the collision matter, which net amount they claim is $3,211.50, being the difference between the $4,600 received and $1,388.50 paid out for fees and expenses in that particular matter. They base their claim to recover on the contention that, inasmuch as the collision occurred while the estate of Wm. T. Donnell owned the equity to redeem said 71/128 from said mortgages, that estate is entitled to 71/128 of whatever net sum was subsequently received by the defendant in settlement of the collision matter. [1-3] A chattel mortgage carries the whole legal title to the property mortgaged to the mortgagee conditionally, and, if the condition is not performed, the mortgagee's title becomes absolute at law. Stewart v. Hanson, 35 Me. 506. The only right remaining to such a mortgagor is the equity of redemption. He has no title to the property, and therefore has no rights in it incident to ownership. If the mortgagee permits him to have the possession and use of it, such permissie possession and use, unless otherwise agreed, do not entitle him as against the mortgagee to have the benefit of damages for wrongful injuries to the property itself. If while the property is in the permissive possession of the mortgagor it is damaged by a third party, the mortgagee may recover the damages of him who is legally liable therefor. Such right in a mortgagee to recover damages for injuries to the mortgaged property is incident to his title to the property; it does not depend upon possession, or right to present possession, of the property. The right of present possession is essential to maintain an action for an injury to the possession, but is not an essential to maintain an action for damages to the property itself. Although a mortgagor in possession may maintain trespass for an injury to his right of possession, and in such action he may be permitted to recover, by way of aggravation, damages for injuries to the property itself by the defendant's acts, yet the right to recover such damages to the property itself in such an action by the mortgagor is only incidental to his right of action for the injury to his possession. It is subordinate to the mortgagee's right to recover for the damages to the property itself. When the injury affects the estate, it may be redressed in an action by him in whom the legal title to the estate is vested. Even though one who has wrongfully injured the mortgaged property itself may thus be liable to an action by the mortgagee, yet the principle remains the same, that the superior right of action for injuries to the estate is in the mortgagee by virtue of his title. Gooding v. Shea, 103 Mass. 360, 4 Am. Rep. 563. Applying these fundamental and familiar principles of law to the facts in the present case, we think the plaintiffs' contention is not sustainable. [4] At the time of the collision and of the injuries thereby occasioned to the Colburn, these 71/128 of the vessel were under mortgages, and the mortgagees thereof, having the legal title to the estate represented by those shares, had the right to receive and to recover the damages resulting from the collision to the property mortgaged. They had that right by virtue of their title to the property injured. As between them and the mortgagor, their right to the damages for injuries to the mortgaged property itself was the controlling right. Had the damages been received by the agent for the vessel before the foreclosures of the mortgages were complete, the mortgagees would have then been entitled to them by virtue of their title as mortgagees. And certainly they could not be less entitled to those damages by reason of the fact that when they were received by the agent their title by mortgage to the property when damaged had then become absolute under the foreclosures. It is suggested in behalf of the plaintiff's that some portion of the amount recovered by the defendant in the compromise settlement of the collision should be regarded as compensation for the delay of the vessel, and therefore belonged to the estate of the mortgagor which then had the possession and use of the vessel. But it is a sufficient answer to that suggestion that there is no proof that fendant was compensation for the vessel's any part of the money received by the delost time. The matter of damages for the delay of the vessel may or may not have We cannot determine whether it was or not, been taken into account in the compromise. for the evidence is silent on that point. [5-7] But there is another adequate defense we think to the plaintiffs' claim, at least so far as the 65/128 of the vessel are involved. There is ample proof in the case of a general and universally well-known and recognized usage pertaining to sales and transfers of shares in vessels, which is that, when such shares are sold and the ordinary bill of sale therefor is given without any condition or reservation, the buyer takes the shares, debits and credits; or, in other words, that all debts follow the vessel, and all credits due the vessel, if any, go to the buyer. Such usage, we think, is neither contrary to established principles of law, nor repugnant to the contract of the parties, and it is not unreasonable. Indeed, it seems necessary that transfers of shares in a vessel should be |
