Argued before MITCHELL, C. J., and DEAN, BROWN, POTTER, and ELKIN, JJ. A. A. Vosburg and Charles W. Dawson, for appellant. David J. Davis, City Sol., and H. R. Van Deusen, Asst. Sol., for appellees.

MITCHELL, C. J. The petition for mandamus asked for the writ against the city treasurer and the city clerk jointly. These officers, however, have separate duties, and are in no wise responsible for each other. The writ asked for therefore was clearly irregular, and could not be granted. But appellant has now, with leave, amended its petition and the subsequent proceedings by striking out the name of the city clerk, and electing to proceed against the city treasurer alone.

The ordinance in question was a valid and sufficient appropriation of the fund to the use of appellant, at least for the current year of its passage. The treasurer is directed to enter the sum received from the state

under a special account, and to report the amount annually to the city clerk, who is directed to issue warrants therefor in favor of the appellant. All the essentials of a valid appropriation are here, and, in the absence of a constitutional or legislative restriction as to form, the city councils may put their mandate in any form they choose. All that is necessary is that the language should clearly express their intent to make an appropriation. Com. ex rel. v. Gregg, 161 Pa. 582, 29 Atl. 297.

It is contended that the ordinance, if regarded as an appropriation for future years, contravenes art. 6, § 10, of the act of May 23, 1889 (P. L. 277), requiring councils to make annual appropriations. The several departments of the city government are required to make report before the commencement of each fiscal year of the probable receipts and expenditures, and councils are prohibited from making appropriations for other purposes, until the "necessary expenses" of the city are provided for. On the other hand, it is argued that this restriction is intended to apply only to ordinary annual expenses, and that in the present case there is not the creation of any city debt or obligation beyond its current income, as the appropriation is only of so much as the city may receive each year from the state. As the case is to be decided on other grounds, we express no opinion on this point.

The objection that the ordinance is in violation of article 9, § 7, of the Constitution, prohibiting municipal appropriations for "any corporation, association, institution or individual," is not tenable. The history and scope of that provision of the Constitution

are fully and clearly set forth in Com. ex rel. Police Pension Fund Ass'n v. Walton, 182 Pa. 373, 38 Atl. 790, 61 Am. St. Rep. 712, where it was said by the late Chief Justice Sterrett that "no strictly legitimate municipal purpose was intended to be prohibited," and, if councils "were satisfied, as they doubtless were, that the distribution of the fund would be better effected through the agency of the association than by an agency of their own creation, they had a right to so provide." This language could not have been more appropriate to the case at bar if it had been written for it. The protection of the city from fire is a municipal function of the highest importance, and, as said in the case just cited, "a judiciously administered pension fund is doubtless a potent agency in securing the services of the most faithful and efficient class of men." At the time of the passage of the ordinance the city had no paid fire department, and the appellant association was performing that part of the city's municipal functions. The fact that it was doing so voluntarily did not make it any the less eligible for appointment as the city's agent in that regard.

Notwithstanding these considerations favorable to the appellant, we are obliged to affirm the judgment on the ground that the ordinance has been repealed. The learned judge below held that the appropriation to the appellant by the ordinance, even if a valid appropriation, was only a gift so far executory that it was revocable at any time before actual payment of the money, and the repeal terminated the donee's rights, whatever they had been before. The ordinance, however, was not repealed until October 24, 1903, after the institution of this suit, and appellant contends that at least as to the previous years the repeal could not affect its rights. This question can only be decided in a direct issue between the appellant and the city. The present proceeding is a mandamus to the respondent, as city treasurer, to perform a duty claimed by appellant to be ministerial and imperative, belonging to his office. But at the time judgment was asked against the respondent there was no such duty upon him. It existed only by virtue of the ordinance, and the ordinance was no longer in force. Whether the city could terminate appellant's rights by the repeal can only, as already said, be settled in a suit directly against it, but respondent cannot be commanded in this proceeding to perform a duty which no longer exists. Whatever appellant's rights may be, therefore, they cannot be enforced in this form of action. The judgment must be affirmed on this ground. Judgment affirmed.

(211 Pa. 625) SCHWARZ v. DELAWARE, L. & W. R. CO. (Supreme Court of Pennsylvania. May 1, 1905.)

1. RAILROADS ACCIDENT AT CROSSING QUESTIONS For Jury.

In an action for death at a grade crossing, for the court to assume, in attempting to show by mechanical calculations, the contributory negligence of deceased, that the train was moving at a speed of 40 miles per hour, and the wagon at a speed of 2 miles per hour, if the evidence was disputed, was error. The question as to the respective speeds was for the jury.

[Ed. Note. For cases in point, see vol. 41, Cent. Dig. Railroads, § 11642.]

2. SAME-DUTY OF RAILROAD.

Where a railroad company has erected gates at a dangerous crossing, it is its duty to slacken speed when the watchman is off duty and the gates open.

[Ed. Note. For cases in point, see vol. 41, Cent. Dig. Railroads, § 1007.J

3. SAME-SPEED.

Where a person crossing a railroad can only see a train approaching for 585 feet if he stops at the proper place, the railroad company should regulate the speed of its train so as to make it possible for a driver to cross in safety if he has stopped, looked, and listened at the proper place.

[Ed. Note. For cases in point, see vol. 41, Cent. Dig. Railroads, §§ 1006-1012.]

Appeal from Court of Common Pleas, Munroe County.

Action by Richard F. Schwarz against the Delaware, Lackawanna & Western Railroad Company. From an order refusing to take off a nonsuit, plaintiff appeals. Reversed.

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

F. B. Holmes and Shull & Shull, for appellant. Everett Warren and A. Mitchell Palmer, for appellee.

POTTER, J. This is an appeal from the refusal to take off a judgment of nonsuit. The learned trial judge felt that from the facts the unavoidable conclusion followed that the deceased (two young men) were guilty of contributory negligence. He attempted to demonstrate this by a mathematical calculation, and, in so doing, assumed that the train was moving at a uniform speed of 40 miles per hour; that the wagon was moving at a uniform speed of 2 miles per hour; that the wagon was struck when the driver was directly in the center of the south bound track; that when the train came into view the driver was 30 feet from that point. In order to sustain the judgment, all of these propositions must have been founded upon clear and undisputed evidence. From our examination of the testimony, we are not able to agree that they are.

With reference to the first matter mentioned the speed of the train-the trial judge, in his opinion, says: "There is evidence, however, from which the only fair inference is that the train was running at the

rate of about forty miles an hour, and the wagon was crossing the tracks at the rate of about two miles an hour." The opinion then goes on to say that "the only evidence bearing upon the rate of speed of the train is that of Edwin M. Rine, the division superintendent of the defendant company." These statements entirely ignore the testimony of four witnesses, all of whom resided close to the place of the accident and heard the approaching train, and testified as follows: James Anderson, who was an experienced railroad man, having been engaged as a fireman and a brakeman on both passenger and freight trains, testified that the train was running fast-very much faster than any other morning. John Williams, who was also a railroad man of some experience, testified that the train was running fast, according to the sound. "It made more noise that morning than at any previous time. It was running faster than usual." Rosinda Dreher testified that she heard the train coming very fast. "It made a noise like all trains do when they are running fast-just seemed to come like a flash." Clara E. Kennedy testified that she heard the train coming at a very rapid rate. We are not able to find that Edwin M. Rine gave any evidence as to the speed of the train. He merely testified as to the fact of the train being behind schedule time, and to the orders given the engineer at Stroudsburg. There was no evidence as to what was done in consequence of these orders.

We agree with the statement of the trial court that "where the company has placed safety gates and stationed a watchman at a dangerous crossing in a populous district, where there is much travel at all hours, it is the duty of the company not to accelerate, but to moderate, the speed of its trains when the watchman is off duty and the gates locked open." The evidence of the witnesses above quoted would seem to justify the inference of a failure of duty upon the part of the defendant company in this respect. In view of this testimony, the question of the rate of speed of the train was for the jury. Nor do we find that there was any evidence as to the speed of the wagon when passing over the crossing. The statement of the court is merely an inference from the testimony that the ordinary walking gait of the horses was about two miles an hour, and that they could not go up the ascent to the railroad tracks at much more than that.

The trial judge properly says: "In the absence of evidence as to whether these unfortunate young men did or did not stop, look, and listen before crossing the railroad, we must presume that they did. So, also, they are presumed to have stopped at the best place." It appears from the evidence that one desiring to cross the railroad at this point could only see a train approaching

from the direction from which this train came for a distance of about 585 feet. Running at the rate of 40 miles an hour, the train would cover this distance in about 10 seconds, so that, if the driver stopped and looked and listened just before crossing the track, he might be caught before clearing the furthest track if so little as 10 seconds of time was required to go over the crossing. If the view of an approaching train was restricted to so short a distance as 600 feet or less, the defendant company was bound to take that fact into consideration, and to so regulate the running of its trains as to make it possible for a driver to cross the tracks in safety if, when just before entering upon them, he stopped, looked, and listened, and no train was within sight or sound. The evidence also shows that the conformation of the ground in the vicinity is a bluff along the railroad, and the rapids in the creek near by make a rumbling noise that somewhat resembles that of a train, so that it may be hard to distinguish between the noise of the water and that of a train coming around the curve.

What we said in Cromley v. Penna. R. Co., 208 Pa. 445, 57 Atl. 832, is applicable here: "It cannot be said that the driver saw the

train, or should have seen it, because it may have come into view in the 500 [here 585] feet to which his line of vision was at first limited, after he had looked and started to cross. It was probably moving twenty times as fast as he was, and, after coming into view, would cover the distance to the crossing before he could reach a place of safety. Nor can it be said by the court that he was negligent in not seeing and avoiding the train if it came into his view after he had started on. True, it was his duty to continue to look as he approached the track, but he may have been delayed by the condition of the crossing or by the rearing of his horses. Allowance must be made for these facts, and for his bewilderment of mind if, when committed to the act of crossing, he was suddenly confronted with an unexpected and alarming danger."

Our conclusion, upon the whole, is that the evidence in this case was by no means so clear as to justify the court in finding, as a matter of law, that the driver and his companion were guilty of contributory negligence.

The second assignment of error is sustained, and the judgment is reversed, with a procedendo.

Where the bill was filed by a next friend on behalf of a lunatic to set aside a conveyance of valuable property without consideration, and to revoke a power of attorney because both instruments were alleged to have been executed by complainant while incompetent, and the proof of complainant's previous incapacity was convincing, the bill would not be stricken from the files on her application, supported by proof of her return to reason, and that she desired such disposition to stand, supported by evidence of her physicians and others tending to show present capacity prior to the trial, and determination of such issue before a master.

Suit by Cornelia R. Kroehl by Agnes C. C. Sieghortner, as next friend, against Elizabeth H. Taylor. On motion to strike bill from files. Denied.

Frank Durand, for the motion. Edwin R. Walker, opposed.

MAGIE, Ch. This motion was founded upon a petition of Cornelia R. Kroehl, the complainant, and accompanying affidavits, and on the hearing rebutting affidavits were presented in behalf of the next friend. The bill was permitted to be filed by Mrs. Sieghortner, who is a daughter of complainant, as next friend, by my order. This course was adopted upon affidavits respecting the incapacity of the complainant arising from mental disease, and it was in accord with the doctrine established in this court in Collins v. Toppin, 63 N. J. Eq. 381, 51 Atl. 933, to the effect that an action by leave of the court may be maintained in this court by a next friend in behalf of a lunatic, who has not been so found upon inquisition. That decision was affirmed by the Court of Errors. Id., 66 N. J. Eq. 430, 57 Atl. 1131. The motion to strike out has been properly made under the doctrine stated in the same case, viz., that upon such motion the propriety of the original order for leave to file the bill may be drawn in question. The bill, when filed, disclosed that its purpose was to declare void a deed of conveyance of land of considerable value, made by the complainant to Elizabeth H. Taylor, without any consideration, and without any reservation to the complainant of a life interest therein, or any power of revocation; and also a very broad power of attorney given by the complainant to Dr. Taylor, the husband of Elizabeth H. Taylor, under which complete power to sell 61 A.-17

and dispose of all the property of complainant, real and personal, was conferred, without any provision respecting the investment of the proceeds, or any security for their proper disposition. The charge was that both these instruments were obtained from the complainant when she was incapable of executing them intelligently, and were procured by undue influence exerted by Mrs. Taylor and Dr. Taylor. Upon the affidavits presented upon this motion the great weight of evidence is that at the time these instruments were executed the complainant was incapacitated from intelligently making them. Upon the petition and the accompanying affidavits the present capacity of the complainant is asserted. An affidavit in support of her petition is presented by her, in which, however, she not only asserts her present capacity, but insists that she was capable of making the dispositions of her property complained of at the time they were made, and expresses her desire that they should remain undisturbed. Affidavits of her physicians and of other persons tend to support her claim of present capacity. It is observable that no affidavit has been made by either Dr. or Mrs. Taylor. This leaves the matter in a position in which I find difficulty in determining the proper course to be taken. If complainant is now possessed of complete capacity, and intelligently desires to preserve the gift she has made to Mrs. Taylor of valuable real estate, and to endow Dr. Taylor with the very extensive powers conferred upon him by her power of attorneyif she intelligently desires that course-I think I should be obliged to direct the bill to be taken from the files, for she has an undoubted right to dispose of her own property according to her own desires, if capable of expressing them. But the proof of her previous incapacity is so strong and persuasive that I am unwilling to make an immediate order to that effect. The case, as presented, is not unlike cases that arise upon a return of an inquisition in lunacy proceedings, where the evidence is shown to the chancellor to be conflicting, though its weight is in favor of the return, and in which the rule is that the alleged lunatic may have an issue framed to determine her lunacy before a court and jury, if the lunatic appears to intelligently desire it. The chancellor, in such cases, may require the production of the party before him or before a master selected by him, to ascertain whether there is an intelligent desire to contest the finding in the return.

In the course of the argument, it was suggested that under the circumstances of the present case the chancellor might require the complainant to be brought before him and examined as to her intelligent desire to withdraw the bill filed in her behalf, or, if that is not practicable, that the chancellor should select a judicious master to examine the complainant and report as to her in