result not lawfully nor properly attainable under it is secured. An action will lie for such abuse: Nix v. Goodhill, 95 Iowa, 282, 58 Am. St. Rep. 434, and note; Antcliff v. June, 81 Mich. 477, 21 Am. St. Rep. 533. Liability may arise on a foreign, as well as on a domestic, attachment. Malice is indispensable to an action for wrongful attachment, and the burden of proof of malice is on the plaintiff seeking to establish it: Note to Burton v. Knapp, 81 Am. Dec. 477. For instances of abuse of process by wrongful attachment, see Doctor v. Riedel, 96 Wis. 158, 65 Am. St. Rep. 40; Lawrence v. Hagerman, 56 Ill. 68, 8 Am. Rep. 674; note to Burton v. Knapp, 81 Am. Dec. 467480.

NEFF V. HARRISBURG TRACTION COMPANY.

[192 PENNSYLVANIA STATE, 501.]

RAILROADS.-IT IS CONTRIBUTORY

NEGLIGENCE

FOR A PASSENGER to leave a car while it is in motion.

RAILROADS-NEGLIGENCE IN ALIGHTING FROM CAR -INSTRUCTIONS.-In an action for personal injuries, where the evidence is absolutely contradictory as to whether the plaintiff alighted from a street-car while it was in motion, it is reversible error for the court to instruct the jury that, if they took the version given by the defendants, they might find the plaintiff guilty of contributory negligence and deny a recovery; the instruction should have been absolute and peremptory instead of qualified and conditional.

RAILROADS NEGLIGENCE FROM IN ALIGHTING CAR-INSTRUCTIONS.-Where there is no evidence to show that a car was going so slowly as to be substantially stopped when an accident occurred, it is reversible error to introduce such an element into an instruction to the jury.

Trespass for personal injuries. The assignments of error related to four instructions by the court: 1. If the plaintiff was thrown off the car because she undertook to get off before the car had come to a stop, then the jury might ascertain that she ought to have waited and that the defendant had done nothing out of the way; 2. The second instruction is given in the opinion; 3. If the car had stopped before the plaintiff began to get off, or was so near stopped that it was practically stopped, then she would have a right to get off, and if an accident then occurred she could recover; 4. The fourth instruction introduced the same element of the car going so slowly as to be substantially stopped. Judgment for the plaintiff.

C. L. Bailey, of Wolfe & Bailey, for the appellant.

S. S. Rupp, for the appellee.

504 GREEN, J. On the trial of this case two witnesses examined for the defendant testified positively that Mable Neff

and her sister left the car while it was in motion and before it stopped. She and her sister testified that they did not leave the car until it stopped, and that it started with a sudden jerk while they were getting off, and that this was the cause of Mable Neff's fall. The witness, Lillian Adams, testified that the Neff girls got off while 505 the car was moving, and that she herself did not get off till after the car stopped, and she then saw Mable Neff lying on the street where she had fallen. Kohler testified to the same effect. He said: "I pulled the door open, and I noticed one lady got off the car before it stopped and I seen her take a pitch. Q. It was the first one you say you saw take that pitch? A. The first lady got off before the car stopped; I seen her take the pitch toward the corner of the house or curb as they call it."

nesses.

As these witnesses were entirely disinterested, there was no reason to disbelieve their testimony. It was not possible to reconcile their testimony with that of the plaintiff and her sister, because both of them swore positively that the car had stopped before they got off. It was therefore a matter of prime importance to determine how this disputed fact was, and that determination involved the question of the credibility of the witThe plaintiff was, of course, directly interested, and her sister naturally sympathized with her. Miss Adams and Mr. Kohler were disinterested spectators. If their testimony was believed the plaintiff certainly could not recover. All our decisions are to that effect. In New York etc. R. R. Co. v. Enches, 127 Pa. St. 316, 14 Am. St. Rep. 848, we said: "We have so often held that it is contributory negligence for a passenger to leave a car while it is in motion that it is unnecessary to discuss that question." In Victor v. Pennsylvania R. R. Co., 164 Pa. St. 195, we said: "It may be stated as a general proposition that it is negligence on the part of a passenger to alight from a moving train."

It is plain, therefore, that if the jury in this case believed the testimony of the defendant's witnesses, it was their plain duty to return their verdict in favor of the defendant. Now, the learned trial judge, in commenting upon this part of the case, said to the jury: "And if you take the version given by the defendants, that the car had not yet come to a stop when the plaintiff undertook to get out, then you might find her guilty of contributory negligence, and in that case she would not be entitled to recover." It is altogether probable from the context that the court did not intend, by the use of the word "might"

in this connection, to put, or to intimate, a qualification upon the defendant's right to a verdict in case the jury should find that the plaintiff left the car while it was in motion. But the literal meaning of the words used in the charge is only that the jury 500 might find for the defendant in the event stated, and not that they should or must so find in that event. If, however, the jury only might find for the defendant in that contingency, there is a necessary implication that they nevertheless might find for the plaintiff, notwithstanding the plaintiff left the car while it was in motion; in other words, they would be under no obligation to find for the defendant in case they found that the plaintiff left the car while it was in motion. As there was no proof of any circumstances which constitute an exception to the operation of the rule, it follows that the instruction should have been in the absolute and peremptory form, and not in the qualified and conditional form in which it was presented. The jury would be at liberty to understand from the words of the charge on this subject that the plaintiff's act of leaving the car while it was in motion would be no bar to her recovery in this action.

The portion of the charge covered by the first assignment is amenable to the same criticism, because if the plaintiff did get off the car before it stopped, it was the bounden duty of the jury to decide that she ought to have waited, and it would not be correct to say that they might ascertain that she ought to have waited. The use of the word "might" in this connection in these two portions of the charge would have a tendency to mislead the jury as to their proper function in the contingencies mentioned, and while we think it was entirely unintentional on the part of the learned judge, and that he did not design to convey a doubtful meaning, yet, as the jury might have been misled, we feel bound to sustain these two assignments of error.

As there was no evidence to show that the car was going so slowly as to be substantially stopped when the accident occurred, we think it was a mistake to introduce that element into the answer to the defendant's point, and we therefore sustain the fourth assignment. We think the point should have been affirmed without qualification, just as it stood. The matter of the third assignment is covered by the same ruling. It is true the matter was introduced into the plaintiff's point, but as there was no evidence to which it could apply, the court should have so said in their answer, instead of affirming the point as it was presented.

Judgment reversed and new venire awarded.

RAILROADS.-WHETHER ALIGHTING FROM A MOVING TRAIN is contributory negligence on the part of a passenger is ordinarily a question for the jury: Note to New York etc. R. R. Co. v. Enches, 14 Am. St. Rep. 851. Compare notes to Central R. R. etc. Co. v. Letcher, 44 Am. Rep. 808; Jewell v. Chicago etc. Ry. Co., 41 Am. Rep. 65.

CONTRIBUTORY NEGLIGENCE-INSTRUCTIONS REGARDING.-It is error to refuse to charge that if the plaintiff's own negligence caused or contributed to the injury, he cannot recover, when there is evidence to support such charge: Brown v. Gilchrist, 80 Mich. 56, 20 Am. St. Rep. 496. The court may properly refuse to instruct the jury that if they believe certain facts to be true, of which evidence has been given, the defendant is guilty of negligence as a matter of law, and the plaintiff entitled to recover: McCully v. Clarke, 40 Pa. St. 399, 80 Am. Dec. 584.

LEHR V. BRODBECK.

[192 PENNSYLVANIA STATE, 535.]

SALE-CHANGE OF POSSESSION - FRAUDULENT.— Where a brother and sister live on a farm, and the brother gives a bill of sale of all the personal property to his sister, there being no break in the possession, real or ostensible, such sale is fraudulent as to the brother's creditors, although there was no intent to defraud.

NEW TRIAL-ABUSE OF DISCRETION IN REFUSING. Where a court instructs a jury to find for the plaintiff in a certain amount, and the jury, in disregard of such instruction, brings in a general verdict for the defendant, the plaintiff has a right to have the verdict set aside and to have a new trial granted, and it is an abuse of discretion for the court to direct the plaintiff to accept a sum less than the amount to which she is entitled in full settlement of her claims, or if she refuses to take nothing.

N. M. Wanner and E. D. Bentzel, for the appellant.

James G. Glessner, for the appellee.

537 DEAN, J. This is an action of trespass against defendant, sheriff of York county, to recover damages for the alleged wrongful 538 seizure and sale of her goods on an execution against her brother, Charles A. Lehr.

The farm on which the property, livestock, farming implements, grain in the ground, etc., was seized belonged to the brother. Both were single. The evidence showed that they went upon the farm in 1886, she keeping house for him until the date of the sale. At the time they went upon the premises, by a written agreement, the brother leased to her the house, yard, and garden, she to furnish board and lodging for

all the help he might require upon the farm; further, that she should keep upon the farm, cows, hogs, chickens, and turkeys; further, she should receive from him the sum of twelve dollars per month. It was further stipulated that, at any time her compensation amounted to a sufficient sum, she should have the right to purchase all the personal property on the premises and hold the same as her own.

From the date of this agreement, for about ten years, the brother and sister lived upon the farm under the terms of it. In October, 1896, she claimed there was due her from him under it fourteen hundred and forty dollars; and, further, that in October, 1891, she had loaned to him of her own money nine hundred and eighty-six dollars, and had taken his receipt therefor, both sums with interest making three thousand three hundred and eighty-eight dollars and fifty cents; and that in payment of this debt he had sold and delivered to her, by bill of sale in writing, all the personal property upon the farm not already owned by her, including grain in the ground and tobacco. The plaintiff claimed, as belonging to her under the terms of the first agreement, made when they went into possession, and as purchased from others by herself, certain livestock and poultry of the value of three hundred and thirty-five dollars.

To April term, 1895, one George Rutter obtained a judgment against Charles A. Lehr, on which, to January term, 1897, he issued execution, levied on all the property on the farm; the • sheriff sold the same at public sale; before sale he was notified by the sister that the property belonged to her. She then brought this action. At the trial in the court below three questions arose on the evidence: 1. Was the sale by the brother to her actually fraudulent? 2. If not fraudulent in fact, was it against creditors constructively fraudulent, for want of such change of possession as required by law in a sale of chattels? 539 3. What articles were the sister's, not purchased from the brother under the bill of sale, and what was their value?

As to the goods purchased from her brother under the bill of sale, the court instructed the jury thus: "So, in this case, there was no visible change of possession, either actual, by notice, sign, symbol, or otherwise; and the property continued in the possession of Charles A. Lehr, on the property where he alleged the sale took place. And, as a matter of law, we instruct you that the plaintiff cannot recover for any articles which she alleged she purchased from Charles A. Lehr, her brother, and which remained in his possession, excepting the growing grain