(113 A.) sonable opportunity should be given to the Argued before MOSCHZISKER, C. J., and safe deposit company to assert any special | FRAZER, WALLING, SIMPSON, KEPrights which it may possess as bailee, but if HART, and SCHAFFER, JJ. there is a refusal to permit the opening of the box, without proper excuse, the right may, under the law, be enforced. Doubtless the aid of the court can be secured, upon proper showing, if there is wrongful resistance to the execution of a valid writ. John McGahren, of Wilkes-Barre, for appellant. B. R. Jones, of Wilkes-Barre, for appellee. FRAZER, J. Plaintiff, as administrator of the estate of Paulina Charnetski, deceased, who owned a lot of ground in Luzerne county on which was erected a hotel and other buildings, sued to recover damages for injury to the premises, resulting from the with [8] The present appeal, however, is based on a discharge of a rule to compel the defendant to open the safe. The court below was without power to so order, though by appropriate proceedings defendant could have been compelled to disclose the contents.drawal by defendant of vertical support in Its action, here complained of, was proper, and the assignment of error based thereon is overruled. The judgment is affirmed. (270 Pa. 459) mining the underlying coal. Defendant denied, inter alia, that plaintiff's decedent had the right of support, averring such right had been waived by her predecessors in title. At the trial plaintiff offered in evidence all deeds in the line of title of both surface and minerals from the time the latter was severed, and on the evidence thus produced the trial CHARNETSKI v. MINER'S MILLS COAL judge instructed the jury to return a verdict MINING CO. (Supreme Court of Pennsylvania. May 9, 1921.) 1. Mines and minerals 55 (6)-Grantee of minerals takes estate subject to burden of surface support. In absence of express waiver, or use of words from which the intention to waive clearly appears, the grantee of minerals takes the estate subject to the burden of surface support, 2. Mines and minerals 55(6)-Owner of surface held not entitled to support. Three estates may exist in land, the surface, the minerals, and the right of support, and each of these may be vested in different persons at the same time, and owner of surface alone cannot recover damages from owner of minerals resulting from withdrawal of vertical support in mining. 3. Mines and minerals 122-Rule as to justification of trespass as against one in possession of land held not to apply in action for damages by reason of withdrawal of surface support. The rule that a wrongdoer without title cannot, as against one in possession of land, justify or protect his trespass by showing an outstanding title in a stranger, has no application in an action by owner of surface alone against owner of underlying coal alone, where a third party owns the right of support; right of support alone being disturbed by defendant, and plaintiff not being in possession of the support. Appeal from Court of Common Pleas, Luzerne County; Henry A. Fuller, Judge. Action by Charles Charnetski, administrator of the estate of Paulina Charnetski, deceased, against the Miner's Mills Coal Mining Company. Judgment for defendant, and plaintiff appeals. Affirmed. for defendant. From judgment entered, plaintiff appealed. The documentary evidence offered established that Thomas Stocker conveyed the surface to John Edward Goss in 1876, reserving the minerals, together with the "unqualified right to mine out and take out the whole of the same without opening for and transporting on and over the surface of said piece or parcel of land." [1] Under the decisions of this court the above conveyance carried the right of surface support. "The law is firmly established in Pennsylvania that, in the absence of express waiver or the use of words from which the intention to waive clearly appears, the grantee of minerals takes the estate subject to the burden of surface support." Penman v. Jones, 256 Pa. 416, 422, 100 Atl. 1043. It appears that in 1886, by virtue of a sheriff's deed, the interest of Goss was conveyed to Charles A. Miner and Isaac M. Thomas. Thomas later conveyed his interest to Miner, who, in 1893, conveyed to John J. Curry, re serving all the minerals, with the unqualified right to mine or remove the whole or any part thereof "without any liability in any event whatever on the part of the vendors, their heirs, executors, administrators, or assigns, or on the part of the owner or lessee of said coal and minerals their heirs, executors, administrators or assigns, for any damage done to the surface of said lot or to the improvements thereon by reason of such mining and removing, or by reason of the mining and removing of any adjoining coal and minerals, the same being the property of the vendors herein, their lessees, heirs, and full compensation for any damage which will assigns, it being understood that adequate and or may accrue to said surface has been liquidated and allowed in arriving at the consideration or purchase money aforesaid, and any right of action for any damage as aforesaid has I could grant it, and in denial of the express lanbeen extinguished." By subsequent conveyance the interest of Curry became vested in plaintiff's decedent, "subject to all the conditions and reservations in previous deeds contained, conveying the same land." guage of its deed, which clearly reserved the [2] The minerals were conveyed to defend-right as it saw proper." * "to mine with prudence, skill, and care It thus appears that, while Miner acquired the surface from Goss in 1886 with the right of surface support, he conveyed it to Curry without the right of such support, and conveyed the minerals with the duty of support; and the question which now arises is whether plaintiff, being without the right of support, can claim damages from defendant for withdrawal of support. And again on page 599 (91 Atl. 510): "It may be conceded that the surface support is a valuable right, and that the plaintiff company will not possess it under our conclusion as to its rights in the surface; but that is not sufficient to warrant the court in giving the right to the plaintiff company, when neither it nor its predecessors in title show any title to the right by the contracts under which they acquired the surface. They took title to the surface with full knowledge that they were not obtaining support for it from the mineral estate, and, as they never had the right, they can not lose it." Plaintiff argues that the present case is controlled by Robinson v. Boynton Coal Co., 58 Pa. Super. Ct. 176, where the owner of land conveyed the surface owned by him, together with the right of support, and afterwards sold the coal and the purchaser of the surface then sold the surface by deed containing a reservation of the coal, "with the right and privilege of mining, etc., without any recourse for damages by the owner of said waive the right of support for the reason It was held that this did not that the clause was not susceptible of being unequivocally construed in favor of the coal owner against the right of support. The provision in the deed in that case is clearly distinguishable from the provisions in the present deed, where the right to mine without injury to surface is clearly and specifically reserved. Consequently, plaintiff, on his own evidence, showed he was without right to have the surface supported, and binding instructions in favor of defendant were proper. The principles here involved are covered by the cases of Graff Furnace Co. v. Scranton Coal Co., 244 Pa. 592, 91 Atl. 508, and Penman v. Jones, 256 Pa. 416, 100 Atl. 1043, both of which recognize that three estates may ex-surface." ist in land-the surface, the coal, and the right of support, and that each of these may be vested in different persons at the same time. In the former case the owner of land sold the coal, reserving the right of support of the surface, and subsequently sold the surface without liability for its support by reason of the removal of the minerals, thus retaining in himself the right of support only. The title to the surface afterward be came vested in plaintiff, who, by proceedings in equity, sought to restrain the owner of the coal from interfering with the support of the surface. The bill was dismissed on the ground that, as plaintiff did not possess the right of support, he was not in position to maintain an action. In affirming the court below this court said (244 Pa. 597, 598, 91 Atl. 510): "It is wholly immaterial whether the common grantor of the parties holding respectively the surface and the coal still retained the right of surface support or whether it had passed to the owner of the coal. The important fact is that it never passed to the plaintiff nor its predecessors in title. If, therefore, the plaintiff is permitted to avail itself of the right of surface support, it is without having acquired such right from the only party who out title cannot, as against one in posses- (270 Pa. 397) (113 A.) In re BENNETT'S ESTATE. Appeal of BENNETT et al. (Supreme Court of Pennsylvania. May 9, 1921.) Remainders 5-Capitalization of life estate does not accelerate time for ascertaining remaindermen. Widow's proposed capitalization of her life estate in land does not accelerate the time for ascertaining the remaindermen, and their estates are not thereby vested; the estate in remainder being contingent on death of the life tenant. be living, and in the issue then living of such of them as may be then dead, the issue of a deceased child taking together the same share that such child would have taken if then living, excepting that the share that would be for my son, John F. Bennett, shall go as follows, if he be then living, to-wit: One-fourth to him absolutely, and three-fourths to the Safe Deposit & Trust Company of Pittsburgh, trustee, in trust for the following purposes." The estate in remainder is contingent. Who the parties may be and what shares they take, shall be ascertained, says the testator, at the widow's death. Who of her present children and grandchildren may then not be living, and what descendants may then be in being, cannot now be known. A division among the living now ignores those who may be entitled to take Appeal from Orphans' Court, Allegheny at the period fixed by the testator. County; J. J. Miller, Judge. There is no authority for the contention that the widow's proposed capitalization of her life estate accelerates the time for ascertaining the remaindermen, and that their estates are thereby vested. This testator by creating a trust fixed a definite period when the remaindermen In the matter of the estate of George H. Bennett, deceased. From a decree dismissing a petition for sale of land, Maria D. Bennett and others appeal. Affirmed. The opinion of the court below was as then living, and they only, should take the shares follows: This proceeding, on petition and answer, is to require a trustee to join in the sale of real estate. The petition, by the widow, tenant for life, and the children and certain grandchildren of testator, remaindermen, allege an advantageous offer for the real estate described, and setting forth a proposed division of the purchase money, the widow capitalizing her life estate at about one-third of the purchase money, and the remaindermen dividing the balance in the respective proportions of their present interests, reciting the provisions of testator's will, ask for the approval of the proposed sale, and an order directing the trustee for one of the interests, which is also the general trustee of the entire estate, to join in said sale and execution of a deed. The answer of the trustee admits the facts, but avers, inter alia, that the estate in the remaindermen is contingent, and cannot be determined until the death of the life tenant, and that therefore the present remaindermen have no vested right, nor can it be ascertained what their shares would be; that the proposed sale and division is contrary to testator's intent; and, finally, that under testator's will the trustee alone is authorized to make sales, the fund to be held and used for the same purpose as is the land. he provided for them. The authorities cited by the learned counsel for petitioner are based upon the widow's election to take against the will. Even there clearly defined trusts are not accelerated. Only when the rights of legatees or remaindermen are held in abeyance, being fixed at the time of the death of the testator, may the widow's election accelerate the time for the remaindermen's immediate claim of benefit. Coover's Appeal, 74 Pa. 143, Ferguson's Estate, 138 Pa. 209, 20 Atl. 945, and Woodburn's Estate, 151 Pa. 586, 25 Atl. 145, all show that the acceleration of the remaindermen's benefit arose out of the election of the widow to take against the will, which was held to be equivalent to her death. In Disston's Estate, 257 Pa. 537, 101 Atl. 804, L. R. A. 1918B, 62, this doctrine under the facts is reannounced. Nor can the contention of petitioner be sustained on the authorities in his supplemental brief, citing Styer v. Freas, 15 Pa. 339, where a sale made by trustees under facts similar to the case at bar was sustained, nor yet upon Hamlin v. Hamlin, 126 Pa. 20, 17 Atl. 506, which was a sale made by an executor during the lifetime of the widow, with her consent, the proceeds being applicable to the same use as the fund, nor yet upon Knapp v. Nissley, 254 Pa. 379, 98 Atl. 1051, where the testatrix devised an estate to a trustee, to pay the income to her husband for life, and after his death to sell the property and divide the proceeds among certain designated legatees. The trustee sold the property to the life tenant, and, of course, held the fund in accordance with the terms of the trust. Unlike the cases just cited, the application here is to permit the widow, on her own volition and certain remaindermen, to make a sale, ignoring the trust and directions of testator's will, and providing for a distribution among themselves of the present purchase price, without consideration of the rights of those who may be entitled thereto at the time fixed by testator's will. Testator's will, a very long one, devised, inter alia, the real estate corner of Fifth avenue and Logan street, Pittsburgh, described in the petition, to his wife, for and during her natural life, with remainder over as herein set forth. Later by the sixth paragraph of the will, he says: "All the rest, residue and remainder of my estate of every kind whatsoever, I give, devise and bequeath unto my beloved wife, Maria D. Bennett, for and during the term of her natural life, and at her death said residuary estate, as well as the remainder then left of all the real estate hereinbefore devised to her for life, shall vest in such of my children, Here [it may be stated], as [was said] in Mulexcept provided below, as shall then liken v. Earnshaw, 209 Pa. 226, 58 Atl. 286, as * * where testator devised his real estate to his wife for life, and thereafter unto his children then living, and the issue of any that may be deceased, the issue of any deceased child to take only the parent's share, the Supreme Court, in an opinion by Chief Justice Mitchell, saying: "All these remainders are clearly contingent. No child takes a vested interest because until the happening of the contingency prescribed, the death of the widow, it cannot appear that he will be in the class to whom the devise is made, to wit, those then living, and if he should die before them leaving issue such issue would claim directly in their own right under the terms of the will. 'For until the age is attained, the character is sustained, or the act is performed, the person is unascertained; there is no person answering the description of the person who is to take as devisee or legatee.'" To the same effect is Henry's Estate, 53 Pa. Super. Ct. 57; Lewis' Estate, 231 Pa. 60, 79 Atl. 921. The rule is. restated in Rosengarten v. Ashton, 228 Pa. 389, 77 Atl. 562, where, under a like provision for life, with directions to divide and pay over at a period fixed to the remaindermen as a class, and the issue of such as are dead at the time of distribution, Chief Justice Brown said: "The condition of participation in the distribution is life at the time it is to be made. Living grandchildren and living issue of deceased grandchildren are to be the distributees. They constitute the exclusive class to which the testator declares his estate shall go." The petition must be dismissed. Argued before MOSCHZISKER, C. J., and FRAZER, WALLING, SIMPSON, KEPHART, and SCHAFFER, JJ. F. C. McGirr, of Pittsburgh, for appellants. Patterson, Crawford, Miller & Arensberg, of Pittsburgh, for appellee. PER CURIAM. The decree appealed from is affirmed on the opinion of the court be low; appellants to pay the costs. 270 Pa. 500) TWINN v. NOBLE. (Supreme Court of Pennsylvania. May 16, 1921.) 1. Pleading 428 (3) Where defendant automobile driver did not object to statement, plaintiff could submit evidence tending to show extent of injuries. In an action for personal injuries when struck by defendant's automobile, though plaintiff's averment was in general terms, that he was injured, wounded, and bruised in and about the arms, legs, head, and body, where defendant made no objection to it or effort to secure one more specific, it was competent for plaintiff to submit expert evidence tending to show a broken nose and cerebrospinal meningitis as results of the accident. order 2. Damages 206(3) Refusal to plaintiff to submit to further examination after verdict discretionary with court. The refusal of the trial court to order plaintiff to submit to a further examination, after verdict, for use on defendant's rule for a new trial, was a matter within its discretion, and affords no ground for setting aside the judgment. 3. Damages 163(1)-Burden on plaintiff to show disease as result of being struck by defendant's automobile. The burden was on plaintiff suing for injuries when struck by defendant's automobile to show he was afflicted with cerebrospinal meningitis as he claimed and that it resulted from the accident. 4. Municipal corporations 705 (2) - Rights of pedestrians and cars at public crossings equal. The rights of pedestrians and vehicles at public crossings are equal; each must exercise care according to the circumstances, though more care is required of pedestrians between crossings and of automobiles at crossings, but each must observe ordinary care at all times. 5. Municipal corporations 705 (2) Pedestrian who has begun to cross street has right of way over vehicle. Where a pedestrian, without negligence, has committed himself to a public crossing, he has the superior right of way as against a vehicle thereafter approaching. Jury not misled by er6. Trial 296(3) roneous charge in view of the definition of term used. In an action for injuries to plaintiff when struck by defendant's automobile, though the trial court erroneously charged that a pedestrian has a superior right of way at regular crossing places, where he explained the meaning of the term "superior right of way" by stating that a pedestrian has such superior right of way as against a vehicle thereafter approaching, where, without negligence on his part, he has committed himself to a crossing, the jury were not misled by the erroneous charge. 7. Municipal corporations 705(1)—At public crossing driver must have car under control to be able to stop on shortest notice. An automobile driver who saw plaintiff on the street at a crossing was not bound to have his car under such perfect control as to be able to stop instantly and avert accident to jumped suddenly and unexpectedly in the way; plaintiff, though plaintiff, to avoid another car, a chauffeur at public crossings is obligated to have his car only under such control as to enable him to stop on the shortest possible notice. 8. Municipal corporations 705(11) — Defendant not liable for negligence of driver of other car. If the proximate cause of the injury to plaintiff struck by defendant's automobile at a crossing was the negligence of a driver of another car which caused plaintiff to jump suddenly in front of defendant's car, defendant is not liable. (113 A.) 9. Trial 186-Comment of court on defend- [3] The burden was upon plaintiff to show ant automobile driver's testimony erroneous. he was afflicted with cerebrospinal meningitis In an action for injuries to plaintiff when and that it resulted from the accident; but struck by defendant's automobile, where the considering, as we must, all the testimony of court, in commenting in his charge on defend- Dr. Chandler, on direct and cross examinaant's testimony that his hitting plaintiff made tion, it was properly held sufficient to take him nervous and he stopped as quick as he could, said that defendant's explanation, though that feature of the case to the jury. he was going, according to his story, at the [4-6] The trial judge charged, inter alia, rate of 10 miles an hour when he struck plainthattiff, was that he was inexperienced in hitting men, so that he became excited and lost his head, etc., was erroneous as a comment exposing defendant to ridicule and to discredit his testimony. Appeal from Court of Common Pleas, Philadelphia County; Norris S. Barritt, Judge. Action by Fred Twinn against Benjamin Noble. From judgment for plaintiff, defendant appeals. Judgment reversed, and venire facias de novo awarded. "A pedestrian has a superior right of way over vehicles at regular crossing places, being of citizens from one side to the other of cause such places are set apart for the crossour highways." That sentence standing alone would be error, for the rights of pedestrians and vehicles at public crossings are equal; each must exercise care according to the circumstances. True, more care is required of pedestrians between crossings and of automobiles Argued before FRAZER, WALLING, SIMP-at crossings; yet each must observe ordinary SON, SADLER, and SCHAFFER, JJ. care at all times. Arnold v. McKelvey, 253 pedestrian without negligence on his part Bertram D. Rearick, of Philadelphia, for Pa. 324, 98 Atl. 559. Where, however, a appellant. Augustus T. Ashton, of Philadelphia, for has committed himself to the crossing, he appellee. has the superior right of way as against a vehicle thereafter approaching, and to this effect was the explanation the trial judge gave the jury as to his meaning by the term "superior right of way"; hence in our opinion they were not misled thereby. WALLING, J. This action is for personal injuries sustained in a crossing accident. Lehigh avenue, Philadelphia, extends in an easterly and westerly direction, crossing North Broad street at right angles. On the [7, 8] The portion of the charge embraced evening of February 29, 1920, plaintiff while in the third assignment of error is, inter alia, walking westerly across Broad street at Le- to the effect that because defendant saw high avenue, was struck and injured by a plaintiff upon the street he was bound to north-bound automobile owned and driven by have his car under such perfect control as defendant. The case turned on questions of to be able to stop instantly and avert the fact, as to which the evidence was conflict-accident, although plaintiff, to avoid another ing. Plaintiff recovered a verdict of $10,000, and, from judgment entered thereon, defendant brought this appeal. [1] Plaintiff's statement was in general terms, averring inter alia, that "He was injured, wounded and bruised in and about the arms, legs, head and body. The muscles, ligaments and tissues in and about his back and abdomen were severely wrenched, twisted and distorted. He was otherwise injured, wounded and bruised. He also suffered a severe shock to his nervous system." As defendant made no objection to the statement or effort to secure one more specific, it was properly held competent for plaintiff to submit expert evidence tending to show a broken nose and cerebrospinal meningitis as results of the accident. [2] The refusal of the trial court to order plaintiff to submit to a further examination, after verdict, for use on defendant's rule for a new trial, was a matter within its discretion and affords no ground for setting aside the judgment. See Cohen v. Phila. Rapid T. Co., 250 Pa. 15, 95 Atl. 315, Ann. Cas. 1917D, 350. car, jumped suddenly and unexpectedly in defendant's path. This imposed upon the latter too high a degree of care; for while a chauffeur at public crossings must have his car under such control as to be able to stop on the shortest possible notice (Anderson v. Wood, 264 Pa. 98, 107 Atl. 658; Virgilio v. Walker, 254 Pa. 241, 98 Atl. 815), he is not required to drive so he can stop instantly. Moreover, should the jury find that the proximate cause of the accident was the negligence of the driver of another car, which caused plaintiff to jump suddenly in defendant's path, the latter would not be liable. [9] The car ran a considerable distance after the accident, which might indicate excessive speed or lack of proper control. In explanation of this defendant testified: "Q. How did it happen, Mr. Noble, that you ran so far after hitting Twinn? A. It was the first time I ever hit a man, and I got nervous, and I stopped as quick as I could. I put on my emergency brake." And in cross-examination, he added that he stopped in front of a pole on the other |