the third assignment was speculative, and | which were used in connection with the upon request should have been stricken from business carried on by the partnership. Aftthe record, but it could not possibly have er he had withdrawn from the partnership, done appellant any harm, because it was his sons and a corporation that succeeded meaningless as bearing upon the amount of them in business used the kilns and a part damages involved, and certainly does not of the land without charge. This use was constitute reversible error. permissive only and not under any claim of

Assignments of error overruled, and judg- right. These kilns were repaired or rebuilt ment affirmed.

when it became necessary, and a third kiln
was located partly on the plaintiff's land.
Before work had been commenced on this
kiln, the president of the corporation was in-
formed that the location was partly over the
line of its property. Before the kiln was
completed, the corporation passed into the
hands of a receiver, who finished the kiln in
ignorance of his rights but without the
knowledge of the plaintiff. Subsequently,
on notice of the plaintiff's title, he aban-
doned the use of the kiln and took up the
This was the situation
tracks leading to it.
at the time of the receiver's sale, under
which the defendant acquired title to the
adjoining land.

There was nothing in the facts proved upon which an estoppel could be based, and a verdict was properly directed for the plain

ment for plaintiffs, and defendant appeals., track crossed that of the defendant at grade Affirmed.

The court below charged in part as fol

lows:

at Crow's run. This railroad is seven miles in length, and is used mainly to transfer

freight cars to and from factories to the “There is another legal principle which you tracks of another road. It has no passenger will consider in determining the question cars, stations, or regular stopping places, but of contributory negligence. He had a right its trains are stopped or slowed to enable to presume, unless he saw the car coming un- passengers to get on or off at any point on der circumstances that would indicate to him the road. Passengers ride in the cab of the that there was danger of a collision, that engine or on the tender, and get on and off at the street car would make the proper stop a step at the back of the engine. The plainbefore attempting to make the grade cross-tiff in going to and returning from his work ing, and if the circumstances were not such used both roads, changing from one to the other at Crow's run. as to indicate to him that the street car was On the evening when he was injured, he came from Conway to Crow's run on the defendant's car, and got off at the rear platform after the car had stopped at a waiting room 200 feet from the crossing. He saw an engine backing a train of freight cars slowly over the crossing from east to west. He ran on the east side of the public road, and reached the railroad track as the engine was passing. He placed his right foot on the step, caught the handhold, and as he placed his left foot on the floor of the cab, or was in the act of raising it to the floor, he was struck by the defendant's car from which he had alighted. He at no time stepped on the track of the defendant company.

not going to make the usual stop before reaching such a crossing, he would not be guilty of contributory negligence in boarding the train in the manner and at the place he did. Now this is a fact for you to determine. You will look at the young man's testimony. He said that he did not look for the car as he ran down to board this engine; that he did not know where it was, except that he left it and came down along the track to board the

locomotive.

"As we said to you before, when you come to consider the compensation for loss of earning power, there are many contingencies that naturally enter into the determination of this question. You will take into consideration the probabilities of this young man There was ample evidence of the negligence improving, looking at the testimony of the of the motorman in allowing his car to colphysicians, and from your observation of lide with the engine. The question to be conthe young man himself, and taking into considered is whether the case should have been sideration the history of the case from its withdrawn from the jury on the ground of inception down to the present time, and you the plaintiff's contributory negligence. On will also take into consideration the prob- the facts the turning point of the case in the abilities of his being able to do other kinds plaintiff's favor is that he did not step on the of work than that which he was doing at He was carried there the date of the accident, when you come to make up your verdict as to the amount of compensation to which he is entitled; and, having taken into consideration the probability of the young man living to the allotted time of three score years and ten, and all the circumstances and contingencies that will probably enter into the life of a man, and, bringing to bear that good judgment and common sense which men of business and affairs exercise, determine the amount of compensation due to this young man."

Verdict and judgment for Robert Garrett for $1,500, and for Perry Garrett for $6,000. Defendant appealed.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

James L. Hogan and John M. Buchanan, for appellant. William A. McConnell, for appellees.

FELL, J. The plaintiff was employed as an inspector of air brakes at the yard of the Pennsylvania Company at Conway, on the line of the defendant's street railway. He lived with his parents near the line of

defendant's track.

while on the engine. He had safely passed
the peril of getting on a moving engine, and
his negligence in that regard was not the
cause of his injury, although a circumstance
that made it possible. But against such a
possibility he was under no duty to guard,
because he had no reason to apprehend dan-
ger from the defendant's car when on the
engine. There was no causal connection be-
tween his negligence and his injury.
case is governed by the principles stated in
Boulfrois v. Traction Co., 210 Pa. 263, 59 Atl.
1007, 105 Am. St. Rep. 809, and Besecker v.
Railroad Co., 220 Pa. 507, 69 Atl. 1039, 123
Am. St. Rep. 714.

The

A part of the charge relating to the compensation for the loss of earning power is assigned for error. The learned judge, in calling the attention of the jury to matters to be taken into consideration in arriving at a conclusion on the amount of compensation, spoke of the probability of the plaintiff's improving, of his being able to perform other kinds of work, and of his "living out the allotted time of three score years and ten.” The general instruction on the subject was accurate and thorough, and the jury were distinctly told that they could allow only the

The directors who were

thus removed have appealed.

time he reached 21 years for and during directors save one. the remainder of his probable natural life." The language quoted was no doubt suggested by the argument of plaintiff's counsel that 70 years was the proper period to fix. There was not, as in Dooner v. Canal Co., 164 Pa. 17, 30 Atl. 269, the statement of a rule not founded on evidence to be followed by the jury, but rather a caution, in view of the argument advanced, to consider the probabil-pleas of this state a power by this new proities.

The judgment is affirmed.

(222 Pa. 538)

In re SLIPPERY ROCK TP. SCHOOL DIST.
Appeal of CUNNINGHAM et al.
(Supreme Court of Pennsylvania.

The act of assembly in question, that of June 6, 1893, first came before this court for construction in Ross's Appeal, 179 Pa. 24, 36 Atl. 148, where Justice Dean said (page 30 of 179 Pa., page 150 of 36 Atl.): "We are of the opinion that the intent of the act of 1893 is to confer on the courts of common

ceeding to ascertain the facts and determine whether the directors have exercised a sound discretion in providing suitable building accommodations for all the school children of the district." And in Kittanning Township School Directors, 179 Pa. 60, 36 Atl. 151, this court said: "It will be a rare case, where the court below has such superior opportu1909.) nities for wise action as in these cases, that SCHOOLS AND SCHOOL DISTRICTS (§ 53*)-RE- a purely appellate court would undertake to MOVAL OF SCHOOL DIRECTORS-REVIEW BY review its decree on the facts or the inferCourts. On appeal from an order of the court of ences therefrom, even conceding our power common pleas in a proceeding under Act June to do so." And in Barr's Petition, 188 Pa. 6, 1893 (P. L. 330), removing school directors 122, 41 Atl. 303, a case which arose under for failure to provide suitable and adequate the same act of assembly, Justice Dean said school accommodations for the children of the

Jan. 4,

district, the Supreme Court can only consider
the matter as before it on certiorari, and look
into the record only so far as may be necessary
to ascertain whether the court below exceeded
its jurisdiction or its proper legal discretion.
[Ed. Note.-For other cases, see Schools and
School Districts, Cent. Dig. § 133; Dec. Dig.
53.*]

Appeal from Court of Common Pleas,
Lawrence County.

Proceedings for the removal of R. Slemmons Cunningham and others, school directors of Slippery Rock township, Lawrence county, under Act of June 6, 1893 (P. L. 330). From an order of the common pleas removing them from office, the school directors appeal. Affirmed.

(page 127 of 188 Pa., page 304 of 41 Atl.): "The court below on ample testimony has found the facts warranting its decree. We would not touch it, unless there was a manifest error in its finding or a flagrant abuse of its discretion."

The question of the right to review in this court does not seem to have been raised in the former cases, but we may suggest that the proceeding is entirely statutory, and no appeal from the judgment of the court of common pleas is given by the statute. We are at liberty, therefore, to consider the matter only as being before us on certiorari, and we may look into the record only so far as may be necessary to ascertain whether the court below exceeded its jurisdiction or its proper legal discretion. It matters not that we might have reached a different conclusion upon the facts, or drawn other inferences James A. Gardner, for appellants. J. Nor- therefrom. It is sufficient to say that in no man Martin, for appellees.

Argued before MITCHELL, C. J., and FELL, BROWN. MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

POTTER, J. This was a proceeding for the removal of school directors of Slippery Rock township, Lawrence county, under the provisions of the act of June 6, 1893 (P. L. 330), for failing, without valid cause, to provide suitable and adequate school accommodations for the children of the district. Upon petition filed the court of common pleas appointed an inspector to visit the district, inquire into the facts, and make report to the court. The inspector reported that the directors had failed without valid cause to provide suitable accommodations. Thereupon the court granted a rule upon the school directors, six in number, to show cause why they should not be removed from office. After answer filed and after argument, the court made the rule absolute, as to all the

way does it appear from the record that the court below went beyond the power conferred upon it by the statute, or that it in any way abused the discretion vested in it, in the inference which it drew from the facts or the conclusions which it reached.

The assignments of error are overruled, and the order and judgment of the court below is affirmed.

(222 Pa. 567)

COMMERCIAL NAT. BANK v. KIRK et al. (Supreme Court of Pennsylvania. Jan. 4, 1909.) 1. COURTS (8 8*)-JURISDICTION-ENFORCING LAWS OF ANOTHER STATE.

The courts in Pennsylvania will not enforce the penal laws of another state.

[Ed. Note. For other cases, see Courts, Cent. Dig. § 19; Dec. Dig. § 8.*]

2. COURTS (8 8*)-JURISDICTION-ENFORCING | agree that the weight of authority sustains LAWS OF ANOTHER STATE. the general principle announced, but we are not convinced that it can have controlling force in the decision of the present case under the circumstances. It must not be overlooked that the liability sought to be enforced here arises under a Montana statute, and in

Where the Supreme Court of another state has decided that the liability of the directors of a corporation in such state for failure to make a statutory return is a penal liability, it will not be enforced in Pennsylvania, in an action brought in its courts.

[Ed. Note.-For other cases, see Courts, Cent. Dig. § 19; Dec. Dig. § 8.*]

the first instance we must look to the law

of that state to determine its nature, limita3. PENALTIES (§ 32*)-AFFIDAVIT OF DEFENSE. In a penal action, no affidavit of defense is tion, and extent. If the courts of that state required. had not passed upon the question involved [Ed. Note. For other cases, see Penalties, here, it would then be our duty to consider Cent. Dig. § 28; Dec. Dig. § 32.*]

Appeal from Court of Common Pleas, rence County.

and decide it according to the general prinLaw-ciples of law applicable to such cases.

Action by the Commercial National Bank of Bozeman against C. J. Kirk and others. Judgment for defendants, and plaintiff ap

peals. Affirmed.

Argued before MITHELL, C. J., and FELL,

BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

Oscar L. Jackson (Hartman & Hartman and Chas. R. Davis, on the brief), for appellant. J. Norman Martin, for appellees.

But,

the Supreme Court of Montana has passed upon the question in several cases by holding the statute under which the alleged liaits provisions must be strictly construed. bility in this case arises to be penal, and that Gans v. Switzer, 9 Mont. 408, 24 Pac. 18; Elk

horn Trading Co. v. Tacoma Min. Co., 16 Mont. 322, 40 Pac. 606; Wethey v. Kemper, 17 Mont. 491, 43 Pac. 716; State Savings Bank v. Johnson, 18 Mont. 440, 45 Pac. 662, 33 L R. A. 552, 56 Am. St. Rep. 591. We do not feel at liberty to disregard these decisions of the Montana courts, and must conform our administration of the law to them, and this is true independently of what our views on the question involved might be. Ball v. Anderson, 196 Pa. 86, 46 Atl. 366, 79 Am. St. Rep. 693. This view of the case makes it unnecessary to discuss the question raised as to the necessity of filing an affidavit of defense. If penal no affidavit is required. The argument of the learned counsel for appellant is able and exhaustive, and if presented to us in the first instance, perhaps convincing, but we are bound by the Montana decisions as to the penal character of the statute; and, if penal, the disposition of the case by the learned court below was clearly right. Judgment affirmed.

ELKIN, J. The appellees were stockholders in, and directors of, a mining corporation of Montana. Under a statute of that state it is made the duty of the corporation to make an annual report showing the amount of capital stock authorized, the proportion of the capitalization paid in, and the existing indebtedness, which report is required to be filed in the office of the clerk of the county where the principal place of business is located. In the present case the annual report was not made nor filed as required by the statute. Failure to make and file the report imposes upon the directors a statutory liability to jointly or severally pay the indebtedness of the corporation then existing, or any that shall thereafter be contracted, until such report shall be made and filed. This suit was instituted in Pennsylvania to enforce against certain of the directors here the collection of an indebtedness of the corporation due the appellant bank in Montana. The right to recover as a personal obligation against directors in this state depends upon the nature of the liability under the Montana statute, which if penal, must be enforced in that jurisdic-tablished by the evidence. tion. The earlier cases in most jurisdictions regarded such statutes as penal, and suits upon them as actions for penalties, but the later cases, especially those of the federal courts, which perhaps declare the sounder view of the law, hold that the liability in such cases is contractual in its nature, and such statutes remedial. The leading case declaratory of this doctrine is Huntington v. Attrill, 146 U. S. 657, 13 Sup. Ct. 224, 36 L. Ed. 1123. We have carefully considered this case and the numerous other cases cited by the learned counsel for appellant, and we

(222 Pa. 556) WALLACE v. PENNSYLVANIA R. CO. (Supreme Court of Pennsylvania. Jan. 4, 1909.)

1. DAMAGES (§ 26*) - PERSONAL INJURIESFUTURE PAIN AND SUFFERING.

should award compensation for the future pain In an action for personal injuries, the jury and suffering when the probability thereof is es

[Ed. Note.-For other cases, see Damages, Cent. Dig. § 69; Dec. Dig. § 26.*]

2. DAMAGES (8 34*)-PERSONAL INJURIES

AGGRAVATION OF INJURY.

A surgeon employed by a railroad company set the broken leg of a passenger in such a manner as to make a second operation necessary. whose skill a prudent person would have a This operation was performed by a surgeon in right to rely. Held, that the consequences following such second operation are the result of the original accident, and it is immaterial that the second operation did not relieve the patient's

pain.

[Ed. Note.-For other cases, see Damages, Cent. Dig. § 43; Dec. Dig. § 34.*]

GRAPHS.

Where the surgeon of a railroad set the broken leg of a passenger in such a way as to cause the fibula to override, and a second operation was necessary, the surgeon performing the second operation could show by radiograph pic tures the basis for his conclusion that the operation was necessary, and that on operating he found the conditions to be such as the picture showed.

3. EVIDENCE (§ 359*)—ADMISSIBILITY-RADIO- [these questions is relevant in the offer of the picture, X-ray or radiograph, as it is termed, nor is it competent, and that its being offered is for an improper purpose, and only for the purpose, of inflaming the minds of the jury improperly. The Court: The surgeon is called upon to go before the jury and to use the radiograph in explaining the condition of the injured leg as found by him, and I believe it would be proper to allow him to do so, and we will permit the witness to do that. There is really no question before the court to rule on. You may proceed, Doctor. Mr. Jackson: The court being of opinion that there is no question before the court to raise the question objected to, I now object to the witness showing this plate to the jury because the plate has not been sufficient

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1509, 1510; Dec. Dig. § 359.*] Appeal from Court of Common Pleas, Lawrence County.

Action by Fred F. Wallace against the Pennsylvania Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

See, also, 219 Pa. 327, 68 Atl. 952.

At the trial when Dr. L. W. Swope was only identified and has not in fact been offered the stand certain radiograph pictures were shown to him, and he was asked this question:

in evidence, and it is therefore incompetent for the witness to use it in illustrating, as there is no proof that it even pretends to be a picture of the plaintiff's injured limb. The Court: We will overrule the objection and seal an exception for the defendant. (Last question read witness.) A. Yes, sir, it did."

The court charged in part as follows:

"In addition to compensation for expenses incurred and loss of earning power, you may consider compensation for pain and suffering, and in doing so you are not confined simply to what he has endured since the accident to the present time, but what he will probably suffer in the future as a sequence of the in

Plaintiff presented these points:

"Q. I will ask you, Doctor, to take Exhibit B to the jury. First, when this incision was made state whether or not the conditions that you found there corresponded with the radiograph? A. It did. Mr. Jackson: I ask that answer to be withdrawn until I make my objection. Mr. Aiken: We will consider it withdrawn. Mr. Jackson: What is the question for? Mr. Aiken: What do you say? I am not saying. It is your duty to give the purpose of the question. (Question read at suggestion of counsel. Defendant's counsel object, as it contains two separate and distinct questions and different subject-matters.) | jury." We object to the witness going to the jury and showing the jury the radiograph plate, "(7) In considering the damages you may because it has not been properly identified or award the plaintiff for pain and suffering shown by an expert to have been made so you will consider the pain and suffering he as to make it evidence for any purpose. It has already endured, bodily and mentally, is objected to for the second reason because a and which he is likely to endure, and it is radiograph plate, sometimes called X-ray, of for you to determine what compensation the wounded or injured parts of this man's under all the circumstances should be allowleg, for which suit is brought, is incompetented the plaintiff, in addition to the other items and irrelevant evidence and should not be re- of damage to which he is entitled, in considceived for any purpose whatever as to any-eration of the pain and suffering as a result thing in issue in this case, and we desire the of the accident and what amount of money court to understand we make two distinct and specific objections to the offering of these radiographs to the jury, in that it has not been shown to have been taken in such a way "(4) That if the jury find that the operaor by such a person of such a profession, such tion of Dr. Swope caused dead bone, and that an expert, as would entitle it to be received this dead bone was not the sequence or reas evidence. Further objected to for the rea-sult of the original injury, they should not son that the radiograph and X-ray pictures take this dead bone into account in making of injured and deformed parts are not re- up their verdict. Answer: Refused. While ceivable in evidence on the trial of a case like it is true the plaintiff cannot recover for inthis; that there is nothing at issue in this juries which are not the sequence of the origcase except a question of damages for in-inal injury received in the accident, yet if he juries sustained, for costs and expenses that may have been incurred, for such damages as might properly be allowed for pain and suffering and for loss of earning power since the accident up to the present and if it should be believed in the future. No one of

is sufficient compensation for pain and suffering is to be decided by the jury. Answer: Affirmed."

exercised care, caution, and good judgment in the selection of a skillful and competent surgeon, he has discharged his duty in this respect and is not responsible for an error in judgment or unskillful treatment on the part of the surgeon who has been selected with