defined to be a lack of caution according to the circumstances, and the jury must determine whether or not, after one has crossed a number of tracks of a railroad, it would be safer for him to stop, or safer to go on." Verdict for plaintiff for $1,906.70, upon which judgment was entered for $1,750; all above that amount having been remitted. Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ. serve it, was reckless in attempting to cross track No. 2 after the danger became apparent. That failure attended the effort to persuade the jury that the boy's negligence contributed to the accident cannot be surprising to one who reads carefully the evidence. We are here, however, concerned only to inquire whether the defendant, because of misdirection by the trial judge as to the law governing the case, was denied a fair opportunity to make good its contention in this re H. W. Storey, for appellant. William Wil-gard before the jury. The complaint is with liams and W. David Lloyd, for appellee. STEWART, J. That the evidence was sufficient to carry this case to the jury on the question of defendant's negligence is not disputed. The effort was to charge the young lad who met his death with contributory negligence. These were the circumstances: The boy, Harry Bracken, under the age of 13 years, was playing with some companions at a point near the railroad crossing between Johnstown and Morrellville on the Cambria side. The safety gates at the crossing were closed to give a clear track to a passing engine or train, and several wagons and cabs were waiting outside for the lifting of the gates. As soon as lifted, these cabs and wagons entered upon the crossing. Young Bracken and two of his companions got upon the rear end of the wagon third from the gates, with a view to cross over. The railroad tracks at this point are five in number. Before proceeding far upon the crossing, two of the boys, not because of any sense of danger, but simply to return to the Cambria side, jumped from the wagon. As soon as they had alighted, they observed an approaching passenger train coming with rapid speed from the west, and then not more than 15 or 20 yards from the wagon. They signaled as best they could to Bracken, who was well toward the front of the wagon, but in another instant the wagon with Bracken in it having crossed three of the tracks was on the fatal fourth, where the collision occurred. The driver escaped by jumping just in time, the wagon was utterly demolished, and the boy instantly killed by the passing train. Several of the witnesses testified that, when they saw the boy on the wagon, he was not looking in the direction from which the train approached. None, however, say that they had him under their eyes for more than an instant, and that immediately before the accident occurred. A single witness testified that had the boy looked to the west when the wagon was on track No. 3, while he might not have been able to see the engine or cars of the approaching train, because of standing cars on a nearer track, he could have seen the smoke and steam from the train approaching. The inference defendant sought to derive from the testimony was that the boy was either negligent in failing to observe the train approaching in respect to the answer given the first of the railroad, it is the duty of one crossing to * danger, and did not use ordinary precaution | of Alice Bracken be added to the pleadings by looking for the approaching train, the as one of the parties plaintiff." The jury plaintiff cannot recover." There was noth- was then sworn as to both plaintiffs. The ing in the answer to the first point which action of the court in allowing the amendconflicted in the slightest with the law as de- ment is made the subject of another assignclared in the answers to the second and ment. It is only necessary to refer to the fourth. Had the first point contained what case of Weaver v. Iselin, 161 Pa. 386, 29 the trial judge supposed, its rejection would| Atl. 49, as ample and conclusive authority have been entirely correct. All the defendant lost through the mistake was a qualified affirmance of the first point, which loss was fully made up by the repeated and unqualified affirmance of the doctrine therein asserted in the answers to the succeeding points. This must have left defendant without prejudice, and because we think this so evident, conceding the mistake, the case does not call for a reversal on this assignment. for the action of the court. In that case the suit was brought by the father alone, and the amendment adding the name of the wife as party plaintiff was allowed upon the argument of the appeal in this court from the judgment of the lower court. The matter is thus disposed of in the opinion filed in the case: "We have no doubt as to the right of the plaintiffs to amend, in the manner proposed, even at this stage of the case. It apThe third and fourth assignments relate to pearing that the name of Susanna Weaver, the admission of the testimony of several wife of the plaintiff George Weaver, was witnesses as to the rate of speed maintained omitted from the record by mistake, and by the train at the crossing. These require counsel having moved to amend by adding but a word by way of review. Not being her name as one of the plaintiffs, it is ortrainmen, and being without any experience dered that the record be amended accordingwhich would enable them to form any intelli- ly." The amendment in that case was open gent judgment as to the rate of speed per to every objection that is urged here. hour at which the train was moving, but Before the amendment was allowed here being familiar with the particular crossing, | changing the parties, the case had appeared and frequently having seen trains pass at on the trial list as that of Hudson C. Bracken, this point, they were permitted to state that, to the Use of W. D. Lloyd, v. Pennsylvania so far as they could judge, the train was Railroad Company. It seems that, after the running at a rate which was usually main- result was reached on the first trial, Hudson tained at the crossing when the gates were C. Bracken assigned the judgment obtained closed. We see no error in this. The testi- to Lloyd. The amendment omitted the name mony bore upon both disputed points-the of this use plaintiff, and the case stood in negligence of the defendant and the contribu- the name of the legal plaintiffs alone. Betory negligence of the boy-and the question cause of this omission defendant claimed surwas one of fact in regard to which expert prise and demanded a continuance, which knowledge was not required in order to was refused. This refusal to continue is qualify one to speak with sufficient accuracy made the subject of the remaining assignfor the legitimate purposes of the case. It ment. The fact that the case appeared on could be determined as well from common the trial list to the use of another than the observation and experience. legal plaintiff was of no consequence whatever; nor was it at all material that in the appeal to the superior court the use plaintiff's name appeared. The cause of action was in the legal plaintiffs alone, and the party marked as use plaintiff, if he had any rights whatever in the action, could recover them only as the cause of action in the legal plaintiffs was established on the trial. It was not the right of recovery in any use plaintiff that defendant was called upon to meet, but the right of the legal plaintiffs. The amendment omitting the use party's name was not merely formal, but wholly unnecessary. If the defendant thought to defeat the action solely because the use plaintiff had no right to recover, and neglected to prepare its defense against the legal plaintiffs who alone had the right of action, it was the kind of mistake which ought never to be allowed to delay the trial of a case. The action was originally brought in the name of Hudson C. Bracken, the father of the boy who was killed, and a trial was had on the case as it thus stood on the record, resulting in a verdict for the plaintiff. While a motion for a new trial was pending, and at the instance of the plaintiff, a rule issued to show cause why the name of Alice Bracken, the mother of the decedent, and wife of Hudson C. Bracken, should not be added as party plaintiff. The motion for a new trial having been refused, an appeal was taken to the superior court, which resulted in a reversal for errors which are not repeated here, and therefore do not concern us. When the case was called for trial a second time. March 2, 1908, no answer had been filed to the rule for amendment and the motion remained undisposed of. Before the jury was sworn, the attention of the court having been called to the undisposed of motion, the rule was made absolute, and it was ordered "that the name The assignments of error are overruled, and the judgment is affirmed. (222 Pa., 451) The township of Mt. Pleasant, one of the H. C. FRICK COKE CO. v. MT. PLEASANT defendants, is a township of the second TP. et al. (Supreme Court of Pennsylvania. Jan. 4, 1909.) 1. HIGHWAYS (§ 125*)-TAXATION-ROAD TAX -"LAST ADJUSTED VALUATION. Under Act April 12, 1905 (P. L. 142), providing for the levy of a road tax on "the last adjusted valuation" for county purposes, there is no such valuation until the county commissioners have corrected the assessor's return, and the board of revision has given the taxpayers opportunity to object. [Ed. Note.-For other cases, see Highways, Dec. Dig. § 125.*] ADJUDICATION OF 2. TAXATION (§ 495*) [Ed. Note. For other cases, see Taxation, Dec. Dig. § 495.*] 3. HIGHWAYS (§ 129*) -ROAD TAX-ILLEGALITY INJUNCTION. Act April 15, 1834 (P. L. 509), authorizing a taxpayer to appear before the county commissioners sitting as a board of revision asking relief from a tax, affords no such adequate remedy at law as to exclude the jurisdiction in equity to restrain the supervisors of a town from levying a road tax on a valuation of property which is not under Act April 12, 1905 (P. L. 42), based on the last adjusted valuation for county purposes. [Ed. Note. For other cases, see Highways, Dec. Dig. § 129.*] Appeal from Court of Common Pleas, Westmoreland County. Bill by the H. C. Frick Coke Company against the township of Mt. Pleasant and J. A. Porch, tax collector. Decree for plaintiff. Defendants appeal. Affirmed. The court entered a decree as follows: "And now, June 27, 1908, this case having been heard on bill, answer, and proofs, and after argument and due consideration, it is ordered, adjudged, and decreed that the road taxes in Mt. Pleasant township for the year 1907 have been paid by the plaintiff company so far as it is legally chargeable therewith, and the said township of Mt. Pleasant and J. A. Porch, collector of said taxes, are hereby enjoined and restrained from the collection of any other road tax from the said plaintiff for the year 1907; that the defendants pay the costs of this proceeding." Error assigned was the decree of the court. Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ. James S. Beacom and David L. Newill, for appellants. James S. Moorhead and Robert W. Smith, for appellee. MESTREZAT, J. This bill was filed by the plaintiff to restrain the defendants from collecting road taxes for the year 1907. The prayer of the bill was granted, and the defendants have appealed. class. The plaintiff company is the owner | of property in the township, the valuation of which for county purposes for the year 1906 had been fixed and adjusted at $2,014,545. As required by law, the road supervisors of the township met in March, 1907, and levied a tax on the taxable property therein for road purposes at the rate of 42 mills for work tax and 21⁄2 mills for cash tax, or seven mills in all. On May 31, 1907, the plaintiff company tendered to defendant Porch, the treasurer of the township, $13,397.67, the amount of road tax due upon the valuation of the plaintiff's property for the year 1906. receive the amount in full satisfaction of The treasurer declined to the road tax, but did accept it on account of the road taxes due from the plaintiff for the year 1907. The assessor of the defendant township made and returned a valuation for the purpose of taxation to the county commissioners for the triennial year of 1903 prior to March 1, 1907. This valuation was revised and increased by the county commissioners, sitting as a board of revision, on June 25, 1907. From the valuation thus fixed by the board, the plaintiff company appealed to the common pleas, and its valuatribunal until later in the year 1907. Subtion was not finally adjudicated by that sequent to the decree of the common pleas, revising and fixing the valuation, defendant Porch, treasurer of the township, notified the plaintiff company that on the valuation fixed by the court there was still due from it for road taxes for the year 1907 the sum of $16,664.38 for work tax, and $11,524.86 for cash tax, to which a penalty of 5 per centum would be added after November 1st, and threatened to levy upon and sell the plaintiff's personal property in payment of the balance thus claimed to be due. This bill was then filed to restrain the defendant township and its collector from collecting the additional sum alleged to be due the township for road taxes. (2) As suggested by the court below, the determination of the cause requires the solution of two questions, viz.: (1) What is meant by "the last adjusted valuation for county purposes" as the phrase is used in the act of April 12, 1905 (P. L. 142)? If aggrieved, is plaintiff entitled to equitable relief as prayed for in its bill? The learned trial judge has correctly answered both questions, and his very clear and full discussion amply sustains his conclusion. The township of Mt. Pleasant, being a township of the second class, is within the provisions of the act of April 12, 1905 (P. L. 142). The second section of the act requires the supervisors to meet on the first Monday of March, and "proceed immediately to levy a road tax, which shall not exceed may be entitled to. Immediately after the ten mills on each dollar of valuation, this | revision, and ask such relief as he thinks he valuation shall be the last adjusted valuation for county purposes, and which shall be furnished to said road supervisors by the commissioners of the proper county." The section also provides that, before issuing the duplicate and warrant for the collection of road taxes, the board of supervisors of every township that has not abolished the work tax shall give all taxables "full opportunity to work out their respective taxes." By the sixth section of the act, all taxpayers who pay their taxes before June 1st shall receive an abatement of 5 per centum, all taxes paid to the treasurer between June 1st and November 1st must be paid in full, and taxes paid thereafter must be paid with a penalty of 5 per centum. It will be observed that the basis for levying the tax is "the last adjusted valuation for countying the adjusted valuation of property for the purposes, and which shall be furnished to said road supervisors by the commissioners of the proper county." In March, 1907, when the supervisors of Mt. Pleasant township met to levy the tax, pursuant to the act of 1905, what was "the last adjusted valuation for county purposes" furnished to the supervisors of the township by the county commissioners? It was upon that valuation that the statute required the supervisors to make the levy for the year 1907. The plaintiff maintains that it was the valuation of 1906, which, it is conceded, had been adjusted by the proper taxing authorities. The defendants contend that it was the valuation made by the township assessor and returned to the county commissioners in the fall of 1906 for the purposes of taxation for the year 1907. The learned court below sustained the plaintiff's contention. purposes of taxation. Until the commissioners have examined and corrected the assessor's return and the board of revision has given the taxpayer an opportunity to be heard and has thereafter finally adjudicated the valuation, there is no assessment or valuation upon which a tax can be levied for either county or township purposes. Until that time, it is apparent there has been no "adjusted valuation for county purposes." As long as the valuation returned by the assessor is open to correction by the board of revision, it certainly cannot be that the valuation has been adjusted within contemplation of the statute. The act of 1905 is specific as to the character of the valuation upon which the tax shall be levied. It is not simply a valuation returned by the assessor, but, as the act itself declares, "this valuation shall be the last adjusted valuation for county purposes, and which shall be furnished to said road supervisors by the commissioners of the proper county." The Legislature, therefore, has not left open to doubt what the road supervisors shall have before them when they meet on the first Monday of March in each year to levy the road tax. It is "the last adjusted valuation," and not merely the valuation returned by the assessor. While the act of 1889 authorizes an appeal to the common of revision, the appeal is not a supersedeas, and does not prevent the collection of the tax. If the valuation is reduced, the excess of taxes is returned to the person who paid them. The other and remaining question is wheth The taxing system of this state is entirely a creature of statutory law, and the several steps required to be taken in the assessment and collection of taxes are regulated by statute. The general act of April 15, 1834 (P. L. 509), as supplemented and modified by subsequent legislation, is the present law of the state on the subject. It defines the subjects of taxation, and provides the manner of making the assessments and the collection of taxes. The county commissioners issue their pre-pleas from the final adjudication of the board cept to the assessor on or before the second Monday of September, and he is required on or before December 31st to return to the commissioners a list of the names of all taxable persons, and a list of all property taxable by law within his district, together with a valua-er the plaintiff company can redress its griev tion of the same to be made as provided by the statute. The commissioners may raise or reduce the value placed upon the property by the assessor, and, after having examined and corrected the assessment or valuation, they are required to send a transcript of the assessment, together with a statement of the rate to the assessor, who is required to notify the taxable of the day fixed for an appeal. If the taxpayer desires, he may appear before ances by a bill in equity. While the assess ment and collection of taxes are matters of statutory regulation and the taxing officers must strictly pursue the provisions of the acts of assembly in levying and collecting taxes, it is equally true that where there is a remedy at law the owner of taxable property if aggrieved, must seek redress in the manner pointed out by the statute. If, therefore, the Legislature has provided a remedy which will The plaintiff, however, is not threatened with a sale of its property by the township collector for taxes levied upon the valuation returned by the assessor of the township for 1907. The defendants do not seek to enforce a tax levied upon such basis, nor is the plaintiff company resisting the collection of taxes laid upon that basis. The claim of the defendants is made for taxes levied upon a valuation as finally revised by the court in the fall of 1907. This appears by paragraph 6 of the defendant's answer, which, inter alia, is as follows: "This notice (requiring the plaintiff company to pay the taxes in dispute) has been given, and this claim is made upon the said plaintiff under the belief that the valuation returned by the assessor for the year 1907, as finally revised by the county commissioners and the court of common pleas, is the basis on which the taxes for for its grievances, it must pursue that reme- | of the valuation corrected by "the next court dy, and cannot invoke the assistance of a of quarter sessions." court of equity to prevent the wrongs with which it is threatened by the taxing officers of the defendant township. But has the Legislature provided a remedy for the grievances of which the plaintiff complains in this suit? It is so contended by the defendants, and the remedy relied on is the thirty-sixth section of the act of April 15, 1834 (P. L. 517; 2 Purd. Dig. [12th Ed.] p. 1998), which provides as follows: "That it shall be lawful for any person aggrieved by such rate or assessment to apply by petition to the next court of quarter sessions of the respective county, who shall have power to take such order thereupon, as to them shall be thought expedient, and the same shall conclude and bind all parties." It it conceded by both parties to this litigation that this section of the act of 1834 applies only to township taxes. It is contended by the defendants that the act provides a remedy for any party who is aggrieved by the action of the taxing authorities in fixing an il- It is apparent, we think, that the undisputed legal or incorrect rate of assessment of his facts of the case show that the thirty-sixth property for township purposes; that the in- section of the act of April 15, 1834, furnishes no adequate remedy for the relief sought jury complained of in the bill in this case is that the assessment of the plaintiff's proper-it is entitled to. We need not discuss or deby the plaintiff company, and which we hold ty made by the supervisors is on a wrong termine the meaning of the words "rate" or valuation or basis; and that, therefore, the "assessment" as used in the act of assembly, act of assembly affords the plaintiff adequate as the facts of this case show that the plainrelief by an appeal to the quarter sessions. tiff company could not avail itself of the It is true, as argued by defendants, it is not statute to afford it redress for the grievances alleged in the bill that the supervisors did not of which it complains. There was no action have the authority to levy a tax or that the of the supervisors in March, 1907, in fixing property on which the tax was levied was not a basis for the levy of that year from which taxable for township purposes. Let us exthe plaintiff could have appealed to the next amine the facts of the case, as presented by court of quarter sessions as required by the the pleadings and testimony, and see whether act of 1834, which, as stated by the counsel the act of assembly furnishes an adequate re- of the defendants, commenced on the second lief for the injury complained of in the bill Monday of the following May. So far as filed by the plaintiff. It is conceded that the supervisors did not levy a tax in March, 1907, on the adjusted valuation for the year 1906. The board of revision did not adjust the valuation of the plaintiff's property for county purposes for 1907 until June 25th of that year, when they fixed the valuation at $750 per acre, which, on appeal to the common pleas, was finally adjusted some months thereafter at $680 per acre. It is apparent, therefore, that the supervisors did not levy a tax in March, 1907, on the valuation of the plaintiff's property returned by the assessor for that year and adjusted by the board of revision, and we think it equally clear that the supervisors did not make the return of the assessor for that year the basis of the tax levied for the year. If the officers had levied the tax on the valuation returned by the assessor for the year 1907, and given the plaintiff company notice of the tax as required by the statute, it is quite probable that the company would have been compelled to go into the quarter sessions for relief. The company would then 1907 were levied and should be collected." the record discloses, there was no attempt on the part of the taxing authorities of the township to comply with the act of 1905 by giving the plaintiff company notice of the levy of any road tax in March, 1907, or by giving it notice and an opportunity to work out its portion of the work tax or to pay the cash tax assessed against it in that month so as to secure the abatement of five per cent. and avoid the penalty imposed by the statute. In fact, the action of the supervisors in not levying the tax in March on the last adjusted valuation prevented a compliance with those provisions of the law. The conduct of the supervisors in delaying the levying of the tax on the last adjusted valuation and in now seeking to recover the taxes levied on the basis of the valuation fixed by the court in the fall of 1907 deprives the plaintiff of an opportunity to appeal for redress to the next court of quarter sessions within the meaning of the act of 1834. The act of 1905, in its mandatory provisions requires the supervisors to levy the tax at their session in March. The |