Appeal from Court of Common Pleas Allegheny County.

Bill by Gus Trau and Phillip Loevner against William L. Sloan and others. From a decree dismissing the bill, plaintiffs appeal. Affirmed.

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

Edward Steuer and G. K. Wright, for appellants. George H. Quaill and J. V. Dunlevy, for appellees.

MESTREZAT, J. This is a bill for the specific performance of a written contract for the sale of real estate. The controlling question in the case is whether L. A. Clark & Co. were authorized by William L. Sloan, the owner of the property, to enter into the agreement with the plaintiffs, who were the purchasers. The learned trial judge found as a fact and as a conclusion of law that Clark & Co. were not authorized to act as the agents of Sloan in the sale of the property. We have examined with care the testimony in the case and fully agree with these findings. Before Sloan left the city of Pittsburg for California, in February, 1905, he placed all his business matters, including the sale of this property, in the hands of his son Earl. As found by the trial court, this fact was communicated to Clark & Co. by both Mr. Sloan and his son. Zinn, Clark & Co.'s representative, called on Mr. Sloan immediately prior to his leaving on his Western trip and asked him if he would sell the property in dispute. Sloan told him he would sell, but that he was about leaving for California to get a rest, and would be gone till April. Sloan then gave Zinn the net price he would accept for the property, and told him that his son would be in Pittsburg during his absence, that all the dealings would have to be done through him, that his son would sign any papers and make any agreements that were to be made, and that he would keep Sloan posted as to any negotiations which might take place looking to a sale of the property. Zinn acted for Clark & Co. in selling the property to the plaintiffs; but at every step in the negotiations he consulted Earl Sloan, and recognized him as the agent and person authorized to act for his father in consummating a sale. There is no evidence that would warrant a finding that Clark & Co. were Sloan's agents to negotiate a sale of the property. The plaintiffs rely upon the telegrams in evidence for such authority; but, when read in the light of the admitted facts, known and understood by all the parties interested in the transaction, they confer no agency on Clark & Co. to enter into a written contract of sale, but, on the contrary, in the language of the learned judge's findings, they "were intended only to express to Clark & Co. the willingness of Sloan to sell the lands for $38,000 and that a commission of $500 would be paid."

The plaintiffs having failed to establish the authority of Clark & Co., as Sloan's agents, to enter into the written contract which they ask the court to enforce against Sloan, the court below was clearly right in refusing a decree for specific performance.

The decree is affirmed.

(213 Pa. 545)

LINDBERG v. NATIONAL TUBE CO. (Supreme Court of Pennsylvania. Jan. 2, 1906.)

MASTER AND SERVANT-INJURY TO EMPLOYÉ— DEFECTIVE APPLIANCES.

Where an employé sued to recover for injuries caused by a defective crane, near which he had been working for over three months, and the defect was visible and must have been known to plaintiff, and defendant was not notified thereof, plaintiff could not recover; no person having directed him to work in the position in which he was injured.

[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 574-600.]

Appeal from Court of Common Pleas, Allegheny County.

Action by Charles F. Lindberg against the National Tube Company. From an order refusing to take off nonsuit, plaintiff appeals. Affirmed.

Evans, J., filed the following opinion in the court below:

"Plaintiff's evidence showed that he was in the employ of the defendant company as a rougher at the rolls. Near where the plaintiff worked was situated a hydraulic crane, which was used for lifting and moving the rolls when they were taken out for cleaning or repairs. A socket in which the upright of the crane revolved had become worn in such a way that, when the boom approached the position where the plaintiff worked, the upright of the crane leaned in that direction, which caused the boom to move around automatically for nearly onehalf of its circuit, and it would vibrate back and forward until it finally settled at the lowest point, or directly opposite the direction in which the upright, the mast, leaned. The crane had been in this condition for some three or four months, during which time and long prior thereto the plaintiff had worked in the immediate vicinity of the crane. The boom of the crane, in passing over the space through which it moved when moving automatically, by reason of the defect causing the inclination of the mast, passed over the spot where the plaintiff worked, and at the time in question, loaded with a roll just taken from the mill, it struck the hand of the plaintiff, which had hold of some instrument with which he was working, and crushed it. The plaintiff testified that he did not know of this defect in the crane causing it to move through considerable space automatically in the neighborhood of where he worked. A motion for nonsuit was al

lowed, on the ground of contributory negligence on the part of the plaintiff.

"As we said above, the plaintiff testified that he did not know of the existence of this defect in the crane; but it was open and apparent to any person who opened his eyes that that defect was there. The crane was in regular use. Other workmen called by the plaintiff saw this defect, saw that the crane moved without force being applied to it; and assuming that the plaintiff did not know, as he testified that he did not know, he must have closed his eyes to what was apparent in the immediate vicinity of his work. If he did not know it, he ought to have known it, because a workman may not shut his eyes to apparent danger, and go on for months working in the vicinity of a dangerous machine, which is liable at any time to pass over the spot where he is working and strike him, and yet hold his employer liable for any injury occasioned by such a danger. The duty of the employer here was not to furnish safe tools with which to work, because the plaintiff was not injured in working with this crane, but it was to furnish a safe place in which to work; and with the slightest care upon plaintiff's part he could have known for three months prior to the date of this accident that the position in which he was working was a dangerous one. He closed his eyes to that fact. There is no evidence that he or anybody else ever notified the employer of this danger, or that any person ever directed him particularly to work in that position, knowing it to be a dangerous one.

"The motion to take off the nonsuit is refused."

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

Rody P. Marshall and Thomas M. Marshall, for appellant. W. B. Rodgers and Thos. Ewing, for appellee.

PER CURIAM. Judgment affirmed, on the opinion of the court below.

(213 Pa. 373)

In re PENNSYLVANIA R. CO. (Supreme Court of Pennsylvania. Jan. 2, 1906.) MUNICIPAL

1. RAILROADS · SAFETY GATES.

REGULATION

Under Act 1851 (P. L. 320) relating to boroughs, and authorizing by section 2 the borough authorities to make such laws, ordinances, and regulations as they shall deem necessary, and in the twenty-fifth clause of the section setting forth the powers expressly conferred, has no power to require a railroad company, at the latter's expense, to maintain and operate safety gates at street crossings in the borough, and an ordinance requiring such action on the part of the railroad company is void.

[Ed. Note.-For cases in point, see vol. 41, Cent. Dig. Railroads, 88 752-754.]

2. SAME-GRADE CROSSINGS.

A railroad company must adopt adequate means to give notice of approaching trains at grade crossings, but what particular means shall be employed to protect the public when using streets and highways at railroad crossings is left to the company operating the road; reasonable care in view of all the circumstances being demanded by law.

[Ed. Note.-For cases in point, see vol. 41, Cent. Dig. Railroads, §§ 752-755.j

Appeal from Superior Court.

In the matter of the Pennsylvania Railroad Company. From a judgment of the Superior Court, affirming an order dismissing petition to declare void an ordinance of the borough of North Braddock, the railroad company appeals. Reversed.

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

M. W. Acheson, Jr., for appellant. William Yost, for appellee.

BROWN, J. The question raised on this appeal is as to the power of the borough of North Braddock to pass an ordinance, approved April 7, 1904, entitled "Ordinance No. 133, requiring the Pennsylvania Railroad Company to erect and maintain and operate safety gates at the point where the tracks of said railroad company cross Fourth street in the borough of North Braddock and imposing a penalty for any failure to comply with the provisions hereof." By the first section of the ordinance the appellant is required within 60 days from its approval to erect, maintain, and operate safety gates at the point designated in the title, for the warning and protection of those traveling upon Fourth street. By the second section a penalty is provided for failure to comply with the requirement of the first.

It is to be first observed, as is very properly stated by counsel for appellant, that the question is not (a) whether the borough may itself erect and maintain gates; (b) nor whether a given crossing ought to be protected by gates; (c) nor whether in a given case a railroad company might be found guilty of negligence in failing to have gates; (d) nor whether the law ought to compel railroad companies to maintain gates. It is as to the power of a borough to require a railroad company to do a particular thing, which, in the judgment of the borough, the company ought to do at a particular point for the safety of the public in connection with the operation of its road. In the present case the question is as to the power of this borough to require the Pennsylvania Railroad Company to adopt what it regards as proper means for the protection of the public at a designated point crossed by the tracks of the company. It is not pretended that the tracks are not lawfully on the street, nor that the railroad company has not the right to run its cars over them.

In the operation of its road and in the running of its cars the judgment of the board of directors of a railroad company, in the absence of statutory provision, is supreme and exclusive. The public safety imperatively requires that there be no division of this great responsibility with others, not even with municipalities through whose limits railroads may run; for division of it would be the shifting of it in every case of accountability for failure to properly operate the road or run the cars. But, while this is true, corresponding duties of the highest order are imposed exclusively upon those having the control and management of railroads. One of these is to adopt and use suitable and adequate means to give notice of approaching trains at grade crossings, which are always more or less dangerous, and the failure to perform this duty is negligence, for the consequences of which those are responsible upon whom the duty is imposed. What particular means, however, shall be employed to protect the public when using streets or highways at railroad crossings is left to the company operating the road, the law merely demanding and requiring reasonable care in view of all the circumstances. There is no common-law duty on the part of the company to station a flagman or erect gates at a crossing; but the failure of the company to do so is to be considered with other facts in every given case in determining whether the company was negligent. Among our cases announcing this rule are Philadelphia & Reading R. R. Co. v. Killips, 88 Pa. 405; Lehigh Valley R. R. Co. v. Brandtmaier, 113 Pa. 610, 6 Atl. 238; Seifred v. Penna. R. R. Co., 206 Pa. 399, 55 Atl. 1061.

What is attempted by the appellee in the present case? Having no voice in the operation of the appellant's road, it undertakes to do what the common law itself does not do. It assumes to declare how the railroad shall perform a public duty at a particular point, and would substitute its judgment for that of the board of directors as to what kind of protection shall be afforded at the grade crossing, but with no corresponding responsibility resting on it for the inadequacy of the means which it declares must be adopted. If it has power to require the appellant to erect safety gates, it has the power to require the adoption, from time to time, of such other means as in its judgment ought to be adopted by the company for the protection of the public at street crossings. The power for which it contends would be practically unlimited. That the appellee is attempting to substitute municipal control for that of the railroad company itself at a particular point, by declaring just how the duty of the company must be there performed, is too plain for discussion. If the borough, in its judgment, ought itself to adopt means for the protection of the traveling

public at this or any other point within the municipal limits, there is nothing to prevent it from doing so; but before it can interfere, as it would by this ordinance, with the railroad company in its performance of its duty to protect the public at the crossing, it must show authority from the Legislature to do so, expressly or impliedly conferred. The power which it would exercise may be a desirable one, but courts cannot recognize it unless it exists.

Municipal corporations possess and can exercise such powers only as are granted in express words, or are necessarily or fairly implied in or incident to those expressly granted, or those which are indispensable to the declared objects and purposes of the municipality. 1 Dillon on Municipal Corp. (4th Ed.) § 89; 20 Am. & Eng. Ency. of Law (2d Ed.) p. 1139. Doubt as to corporate power is resolved against its existence, and this is no less true of a municipality than of a private corporation; for the source of the power of each is the same. Answer may be made to this that a municipality, as the representative of the state, has imparted to it inherent police power. This is true, and it is contended that the appellee is but exercising such power; but the distinction is overlooked that it is not itself, at the expense of the public, undertaking to exercise control over the streets and to protect the public at the railroad crossing, but is attempting to require some one else to do so at its own expense. It has undoubted power to do the former, if it will; but to do the latter, through the ordinance which it has passed, authority to enact the same must appear. The use of the street in crossing it is a public use of it by the railroad company having a legislative right to so use it on an equality with any natural person, except as such right may be limited in the grant of it, and the attempted interference with this right must fail, unless the borough can point to its power to so interfere, expressly or impliedly existing.

Among the express powers conferred upon boroughs by the act of 1851 (P. L. 320), the one sought to be exercised here does not appear. By the first clause of the second section of that act borough authorities are empowered generally "to make such laws, ordinances, by-laws, and regulations, not inconsistent with the laws of this commonwealth, as they shall deem necessary for the good order and government of the borough." In the succeeding 25 clauses of the same section are found the powers expressly conferred, but the power to pass this ordinance is not one of them. In Borough of Millerstown v. Bell et al., 123 Pa. 151, 16 Atl. 612, this court, through Paxson, J., said: "The general powers referred to in the first section must be confined to the particular subjects referred to in the succeeding sections." Without now committing ourselves to this, it is

clear that the good order and government of a borough referred to in the first clause are not involved in the ordinance. The good order of a borough can be preserved and it can be properly governed, no matter how many railroads cross its streets by legislative permission, and no matter how fast cars may run over them. We assume this is the clause designated by the Superior Court as the "general welfare clause"-"broad enough,” in the opinion of that court, "to cover the municipal legislation complained of." For the reason just given we cannot concur in this.

The case of Commonwealth v. Philadelphia, Harrisburg & Pittsburg Railroad Co., 23 Pa. Super. Ct. 205, was relied upon by the Superior Court as authority to sustain the action of the lower court. In that case the Superior Court held that the three following cases were authority for the power of a borough to pass such an ordinance as is now under consideration: Penna. R. R. Co. v. Duquesne Borough, 46 Pa. 223; Township of Newlin v. Davis, 77 Pa. 317; and Pennsylvania Railroad Co. v. Irwin, 85 Pa. 336. An examination of these cases does not justify reference to them as authority for the power claimed by the appellee. In the first, the railroad company, which had become the owner of the canal, succeeded to the duty of maintaining a bridge over it. Having failed to perform that duty, it was held that the borough authorities, as the proper public officers to look after the public highways, had the right to repair the bridge and to recover the expense of doing so from the railroad company. In the second, the action was against a township for injuries resulting from a defective bridge. All that was decided was that it was the duty of the township to properly maintain it. In the third, the railroad company changed the location of a public road, necessitating the building of a bridge, and it was simply decided that, the company having failed to rebuild and repair the bridge, the township could recover the cost of doing so from the company. A fourth case, cited by the Superior Court in Commonwealth v. Philadelphia, Harrisburg & Pittsburg Railroad Co., is Pennsylvania Co. v. Watson,* 81 Pa. 293. The reference was intended to be to another case reported in the same volume-Pennsylvania Co. v. James,* 81 Pa. 194-in which there appears the language quoted in the opinion of the Superior Court as to the police powers of boroughs. But, turning to the charge of the court below, as found on page 198, it appears that power had been conferred by the Legislature to pass the ordinance which was under consideration. The Legislature might, of course, have done so here, but it has not. By the act of March 7, 1901 (P. L. 20), cities of the second class are authorized to enact ordinances requiring the erection of safety gates and the placing of flagmen at the intersection of railroads with public streets; and by the act of May 23,

Where plaintiff in condemnation proceedings obtained a judgment, it will not be reversed because of the refusal to permit the petition to be amended by striking therefrom a description of land below a low-water mark in a river, where it was not asked for until after 23 witnesses for plaintiff had been examined as to value without objection, and the court instructed the jury that they could allow compensation only for land which plaintiff owned and which did not extend below low-water mark.

2. NAVIGABLE WATERS-OBSTRUCTIONS.

An owner of land abutting on a navigable river cannot place any structure or filling be tween high and low water mark, which would obstruct the river for navigation.

[Ed. Note.-For cases in point, see vol. 37, Cent. Dig. Navigable Waters, §§ 61-72.] 3. APPEAL-HARMLESS ERROR.

Where, in condemnation proceedings, the jury is distinctly instructed that the effect of fillings beyond low-water mark cannot be considered in determining values, remarks by witnesses as to the effect of such fillings are not ground for reversal.

Appeal from Court of Common Pleas, Allegheny County.

Action by Maria L. McGunnegle against the Pittsburg & Lake Erie Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

At the trial defendant made the following motion: "Mr. Smith: I desire to present this morning an amendment in the bond case at No. 314, February term, 1903, and in this proceeding, which is as follows: And now, to wit, October 24, 1904, comes the Pittsburg & Lake Erie Railroad Company by its counsel, and moves the court to amend the description of the land to be condemned by striking out the words 'together with all the land lying between the harbor line and the low-water line of the Ohio river.' (Mr. Ferguson: That is objected to as too late. It is specially objected that the railroad company having elected to condemn and having filed its bond, it is now too late to abandon the condemnation, either in whole or in part. Motion refused. To which ruling counsel for defendant request an exception. Exception allowed, and bill sealed.)"

D. K. McGunnegle, a witness for the plaintiff, was asked this question: "Q. Do you