two others, went to the home of these defend- ¡ an abandonment even of a legal title on recants on or about April 12, 1900, as we recall ord before the running of the statute, namely, it, and made a return setting forth that they before the expiration of 2 years. In this had served the notice upon these parties on option there is a provision that the holders of that day by leaving a copy with them, and the option will ascertain the number of acres they refresh their memory at this time by of merchantable coal in the property by its that entry upon the back of the notice. As own engineers, and, before the consideration we recall Mr. Smith's testimony, he said he under the terms of that option could be corcould not remember the circumstances, but rectly stated in the deed to be demanded, it that he refreshed his memory from the writ- would be necessary to have a survey by the ing made on the back of the notice and felt engineers of the party of the second part, who that he would not have made that entry un- are the plaintiffs in this case. That could less it was correct. Mr. Russel, as we recall have been overcome by a request on part of his testimony, when asked about what oc- the Leidy heirs that a survey be made, and, curred that day, said that his memory was re- upon refusal to make a survey, by a tender vived by reason of the return indorsed on the of the deed, which act would have fully reback of the notice. That the notice was leased them. They did not do that, nor did served upon Mr. Cover, the old gentleman, the Cambria Iron Company have the property there is no dispute. The two young men, surveyed, nor was the money tendered. , however, say that no notice was served upon Nevertheless, when the Leidy heirs did not them. They say that these parties said they move within 20 days, the Cambria Iron Comwere going to take the coal and wanted to pany could have moved by demanding that give them $2, which they refused to take, and they execute a deed, or have presented one they say they refused to sign any more pa- for execution, or by tendering the purchase pers; they evidently did not want to com- money in accordance with the acreage ascerplicate the title further. tained from the survey. While these acts, under the law, would have relieved the Leidy heirs, nevertheless, under the law, the Cambria Iron Company had its remedy, and for that, reason we submit to you, nothing having been done for a number of years-under the testimony seven years-whether or not it was the intention of the Cambria Iron Company to so pursue the right gained by the acceptance of the option, if you so find that it did accept it, as to compel a conveyance of the land, or whether it did not intend to compel a conveyance of the land. If you find that there was an acceptance of the option, then you proceed a step further and discover whether or not, from the weight of the evidence in this case, it was the intention of the Cambria Iron Company to compel a transfer of the title to the coal, or whether it rested there, holding this shadow over the title, so no one else could get it; if so, even if it accepted the option, the defendants are entitled to a verdict." "This option says they must be served with written notice. It does not say they must hand to them a copy, but written notice may be served by handing the notice to them, and they would be obliged to either say, 'We are going to accept the coal, and here is your notice,' or would be obliged to read the written notice of acceptance. It would seem to us that they could do nothing else than that. Did they do that on this day? There is no dispute here that these people were acting for the holders of the option at that time. In any event, Mr. Russel represented the holders of the option at that time, and if he served the notice of acceptance upon these boys, in compliance with the terms of the option, that made the option binding; if the parties did not serve such a notice in compliance with the agreement, then you would find for the defendants. If you find, from the weight of the evidence, that they did serve the notice in compliance with the terms of the agreement, then go one step further and see whether or not, under the circumstances, from the weight of the evidence in the case, the Cambria Iron Company intended to follow up its rights, gained by the acceptance of this option, and procure this land, or whether it did not. We believe there is evidence to go to this jury upon the question of abandonment. This assimilates itself to an equitable ejectment, and the rule of equity that 'He who seeks equity must do equity' is applicable in this case. So, while under the state of the record here, if it be proven that the plain-pelled them to proceed under another act of tiffs in this case gave the notice required under this option, and complied with the terms of the option to the extent that they would have a right to acquire the legal title, if there were nothing else in the case to bar it, yet, under the decisions of the courts in equity, Verdict and judgment for defendants. Plaintiffs appealed. Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ. J. C. Davies and H. S. Endsley, for appellants. S. L. Reed, for appellees. MESTREZAT, J. The learned judge of the court below should have permitted the defendants to pursue the remedy suggested in their petition, and ought not to have com assembly. The defendants presented their petition to the court averring that they were in possession of and had title to a certain tract of land in East Taylor township, Cambria county; that the plaintiffs claimed an interest in and title to the coal in and under the tiffs. There was no waiver by either of the defendants of the stipulation in the contract requiring service of written notice of the acceptance of the option upon him. That question is not in the case. The jury were justified under the evidence in finding that the plaintiffs had not caused a written notice to be served upon the defendants of the acceptance of the optional agreement. plaintiffs to bring an action of ejectment for said coal within six months from the service of the rule, or show cause why the same could not be brought, as provided in the act approved May 25, 1893 (P. L. 131). That act and Act April 16, 1903 (P. L. 212), 2 Purdon's Dig. (13th Ed.) p. 1304, permit the party in possession claiming title to the premises to obtain a rule on any adverse claimant to bring an action of ejectment within six The question of abandonment was likewise months as prayed for in the petition present- one for the jury under all the evidence, and ed to the court below. This legislation pro- the learned judge submitted it in a fair and vides a speedy and complete remedy for one impartial charge. For nearly seven years in possession of land claiming title thereto | the plaintiffs took no action towards completto obtain a final judgment as to the validity ing their title and obtaining possession of the of his title against an adverse claimant. It coal in dispute. During all those years the was therefore an appropriate and adequate defendants retained possession, and necessarremedy to determine the rights of the par-ily paid the taxes, and claimed title. So far ties to this proceeding to the premises in dis- as the evidence discloses, the plaintiffs made pute, and the rule should have been awarded as prayed for. We cannot see any occasion for the court declining the prayer of the petition, and of its own motion awarding an issue under Act June 10, 1893 (P. L. 415), 1 Purdon's Dig. (13th Ed.) p. 817. The plaintiffs claim title to the coal underlying the premises by virtue of an optional agreement, which they allege had been accepted and vested the title in them. The defendants were in possession, claiming title, and the plaintiffs had "an apparent interest in or title to the real estate," and therefore the defendants had a right under the act of April 16, 1903, to have a rule upon the plaintiffs to bring an action of ejectment to determine the title to the coal. no effort to assert their ownership. They made no demand on the defendants for the deed, nor, so far as the evidence shows, did they have their engineers determine the quantity of the acreage, as required by the agreement, so that the deed could be made. The optional agreement was executed January 31, 1900, under which the plaintiffs were to give notice of their acceptance in writing on or before April 15, 1900. Subsequent to the latter date the plaintiffs took no action whatever in regard to the alleged purchase until they were brought into court in August, 1906, by the rule obtained by the defendants to bring their action of ejectment. In the meantime defendants had given an option on the coal to another party. We think the evidence was sufficient to go to the jury on the question of abandonment. The assignments of error are overruled, and the judgment is affirmed. LIGHT CO. (Supreme Court of Pennsylvania. Jan. 3, 1910.) 1. LIMITATION OF ACTIONS (8 124*)-PARTIES -AMENDMENT AFTER EXPIRATION OF PERIOD OF LIMITATION. There was no objection by either party to the action of the court in substituting a proceeding under the act of June 10, 1893, for proceeding under the act of April 16, 1903, and in awarding an issue "to settle and determine their respective rights and title in and to said lands." The issues awarded by (226 Pa. 230) the court and to be determined by the jury SONTUM et ux. v. MAHONING & S. RY. & were: First. Did the plaintiffs avail themselves of their option to purchase the lands described in the petition and give notice of their acceptance of the terms of their optional agreement to defendants in the manner and Where a father sues to recover for the within the time prescribed in the option? death of his son, and it appears that the son Second. If that fact be found in favor of died within a few hours after the accident and the plaintiffs, did they afterwards abandon was unmarried, the record may be amended, the right to a conveyance of the coal in ques-ing the name of his mother as a party plaintiff. after one year from the death of the son, by addtion? The jury found both issues in favor of the defendants, and the court entered judgment upon the verdict as required by the act of assembly. Both of these issues were for the jury under the evidence submitted. It is unnecessary to discuss the numerous assignments of error filed in the case. It was not pretended that a written notice accepting the option was served on Howard Leidy, one of the defendants, as required by the optional Where the evidence that a person killed in agreement. The other two defendants deny crossing the track of a street railway failed to positively that a written notice accepting the look for an approaching car as he reached the option was served upon them by the plain-edge of the track is convincing, contributory negFor other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. § 541; Dec. Dig. § 124.*] 2. STREET RAILROADS (§ 99*)- ACCIDENT TO TRAVELER-CONTRIBUTORY NEGLIGENCE. Failure to look before driving upon the tracks of a street railway is negligence per se [Ed. Note. For other cases, see Street Railroads, Cent. Dig. § 215; Dec. Dig. § 99.*] 3. STREET RAILROADS (§ 112*1-INJURY TO PERSON ON TRACK-EVIDENCE-PRESUMPTIONS. ligence is established as a matter of law, but where there is no positive evidence on this fact, the presumption is that decedent did his duty [Ed. Note. For other cases, see Street Railroads, Cent. Dig. § 227; Dec. Dig. § 112.*] as he approached the track. Appeal from Court of Common Pleas, Lawrence County. Action by Hugo Sontum and Anna M. Sontum, his wife, against the Mahoning & She nango Railway & Light Company. Judgment for plaintiffs, and defendant appeals. Affirmed. Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ. ly appear by the record, and it would be sticking in the bark to hold that more is required. We are of opinion, therefore, that in the institution of the suit and the joinder of the parents no error was committed, and that the requirements of the statutes in these respects were complied with. As to the adequacy of the charge and the instructions to the jury about which complaint is made in the second, third, fourth, fifth, and sixth assignments, we are not convinced that any substantial and reversible error was committed. Indeed, the charge shows careful and thoughtful consideration of the questions raised and the law applicable to the facts. The objections made as to the definition of C. H. Akens, for appellant. J. Clyde Gil-negligence and the measure of damages are fillan and Robert K. Aiken, for appellees. too refined to be substantial in the practical administration of the law. The seventh assignment is the only one about which we have any doubt. The error alleged is that the court upon request did not give binding instructions for the defendant on the ground that the deceased son failed to look imme is an imperative rule, and failure to observe it is negligence per se. If it clearly appeared from the testimony that the decedent had failed to look for an approaching car as he reached the edge of the track, it would be our duty to sustain this assignment and enter judgment for defendant. There is no positive testimony upon this very material fact; and, while there is some evidence from which a strong inference might be drawn that the driver did not look, it was not so clear as to warrant the court in saying as a matter of law that he had failed in the performance of this imperative duty. The presumption in the absence of evidence is that the driver did his duty as he approached the tracks, and we have concluded, after very careful consideration of all the testimony relating to this material fact, that the case is not so clear as to warrant the court in taking it from the jury. In other words, the presumption upon which the appellants had a right to rely was not sufficiently rebutted to make it a question of law for the court, and not of fact for the jury. ELKIN, J. This suit was brought within the statutory period by the father, while the name of the mother was added by amendment more than a year after the expiration of the time in which the action must be instituted under the statutes. The first as-diately before driving upon the tracks. This signment challenges the correctness of the ruling of the court in permitting the amendment. The right to add the name of a husband, or of a wife, by way of amendment after the expiration of the statutory period, if either one had properly brought suit within the time limited, is no longer an open question. It has been squarely ruled in several recent cases. Waltz v. R. R. Co., 216 Pa. 165, 65 Atl. 401; Holmes v. R. R. Co., 220 Pa. 189, 69 Atl. 597, 123 Am. St. Rep. 685; Bracken v. R. R. Co., 222 Pa. 410, 71 Atl. 926. This is conceded by the learned counsel for appellant, but it is argued with great subtleness that the rule of these cases cannot be invoked under the facts of the case at bar. It is contended that the parents had no right of action unless it appears that the death of the son was occasioned by unlawful violence or negligence; that no suit had been brought by him in his lifetime; that the deceased did not leave a widow or children to survive him; that suit was brought by the parents within one year from the death of the son; and that no liability attached to the defendant company until action was brought in such manner and upon such conditions as the statutes require. In other words, that it is the duty of the pleader to set out all of these things in affirmative averments as the foundation of the suit, and to establish them by positive testimony at the trial. We are not familiar with any case that has stated the rule so broadly. The record shows that the suit was brought within a year, and the declaration charges negligence. The son was unmarried, and had no wife or children; and, his death having resulted within a few hours after the accident, A driver of a team approaching a street suit could not have been brought by him in intersection where there is a line of street railhis lifetime. All of these things sufficient-way must look immediately before going upon Under these circumstances the case was for the jury, and we find no reversible error in the submission. Judgment affirmed. (226 Pa. 212) SMATHERS v. PITTSBURG & B. ST. (Supreme Court of Pennsylvania. Jan. 3, 1910.) [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. § 215; Dec. Dig. § 99.*] 2. STREET RAILROADS (§ 117*) - INJURY AT STREET INTERSECTION DUE CARE - QUESTION OF LAW OR FACT. If a person injured by a street car at a street intersection when he looked before going upon the track saw an approaching car so near as to make an attempt to cross dangerous and nevertheless attempted to cross, resulting in a collision, he could be held negligent as matter of law, but if, when he looked, he saw a car at such a distance that in the exercise of ordinary prudence he was justified in concluding that he could safely cross and attempted to do so, it is a question for the jury whether he was negligent. [Ed. Note. For other cases, see Street Railroads, Cent. Dig. §§ 250, 256, 257; Dec. Dig. § 117.*] 3. STREET RAILROADS (8_117*)—INJURY AT STREET INTERSECTION DUE CARE - QUESTION FOR JURY. the tracks, and, if he sees an approaching car | steam railroads, while the second relates to so near as to make an attempt to cross danger- the duty of a traveler as he approaches the ous, he must stop, or if, when he looks at the tracks of a street railway laid upon a public edge of the track, his view is obstructed so that he cannot see the car, he must listen, and street. The degree of care required is not under some circumstances it may be his duty the same in both instances, and our cases to stop, as if when he is in doubt about the lo- have never held that it was. cation and movement of the car after he has The syllabi in looked and listened, and the failure to exercise some of the earlier cases do state that it is such care constitutes negligence precluding a the duty of a traveler about to drive across recovery for resultant injuries. a street railway to stop, look, and listen at the edge of the tracks, and his neglect to do so is negligence per se. Ehrisman v. Passenger Railway Company, This appears in 150 Pa. 180, 24 Atl. 596, 17 L. R. A. 448, and in Wheelahan v. Traction Co., 150 Pa. 187, 24 Atl. 688. The most casual reading of the opinions in these cases will show that the syllabi did not accurately state what the court decided as to the application of the stop, look, and listen rule to street railway crossings. These cases only held that the rule is applicable in part to street railways, but the distinction as to the duty of the traveler in each class of cases was clearly pointed out. In Omslaer v. Traction Co., 168 Pa. 519, 32 Atl. 50, 47 Am. St. Rep. 901, it was said that so much of the rule as requires the traveler to look and listen for an approaching car before going upon the tracks is applicable to street railways, but that there is no settled rule which requires him to stop before attempting the crossing. The rule as applicable to the facts of that case was properly stated, but the duty to listen is not always imperative and depends upon circumstances. If when he looks his view is obstructed so that he cannot see, it then becomes his duty to listen. What was really decided in these cases and in the long line of cases which follows was that it is the absolute duty of a traveler or the driver of a team at the intersection of two city streets upon which is laid a line of street railway to look immediately before going upon the tracks, and failure to do so is negligence per se. If, when he looks, he sees an approaching car so near as to make an attempt to cross dangerous, it is his duty to stop, or, if when he looks at the edge of the tracks his view is obstructed so that he cannot see it, it then becomes his duty to listen; and under some circumstances it may be his duty to stop as if when he looks and listens he still is in doubt about the location and movement of the car. If in any of these situations he fails in the performance of the duty required, he is guilty of contributory negligence, and cannot recover. The one positive and ELKIN, J. In the presentation of this case imperative duty always required under such there has been a confusion of the stop, look, circumstances is to look when the tracks are and listen rule and the rule which impera-reached and immediately before attempting tively requires the driver of a team to look the crossing. Failure to perform this absofor an approaching car immediately before lute duty will defeat a recovery under the driving upon the tracks of a street railway authority of all our cases. In such a case at a right-angled crossing of intersecting no question can arise as to the proper place streets. The first rule applies to public cross to look or whether there is a better place as ings over what are commonly known as in steam railroad grade crossing cases, be*For other cases see same topic and section NUMBER in Dec, & Am. Digs. 1907 to date, & Reporter Indexes Decedent and his wife were driving in a buggy approaching a street upon which there was a street railway, and he kept an outlook in one direction and she in the other, both continuing to look until the horse's head was at the edge of the tracks. Decedent then saw, for the first time, a car rapidly approaching from an elevation in the street which obstructed a further view from the crossing, It was approaching at an excessive rate of speed, and decedent immediately turned the horse's head and attempted to drive alongside the track. Neither the horse nor the buggy was actually on the track, but the front wheel was close enough to be caught by the car. Held, that whether decedent was negligent was a question for the jury. [Ed. Note. For other cases, see Street Railroads, Cent. Dig. §§ 250, 256, 257; Dec. Dig. § 117.*] Appeal from Court of Common Pleas, Butler County. Action by Araminta Smathers against the Pittsburg & Butler Street Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed. Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ. T. C. Campbell and A. E. Reiber, for appellant, John M. Greer, Thomas H. Greer, and John B. Greer, for appellee. to the jury in a charge as favorable to appellant as the facts warrant and the law requires. We find no reversible error in the submission. Judgment affirmed. (226 Pa. 144) LUTHER v. LUTHER. (Supreme Court of Pennsylvania. Jan. 3, 1910.) 1. APPEAL AND ERROR (§ 1009*)—REVIEW— EQUITY-FINDINGS OF FACT. cause the settled rule is that the place to | of negligence and of contributory negligence look is immediately before going upon the tracks. What the driver of a team is required to do after looking depends upon what he sees when he looks. Whether he failed to perform his duty under the circumstances is sometimes a question of law for the court and sometimes of fact for the jury. If, when he looks, he sees a car so near as to make the attempt to cross dangerous and notwithstanding he attempts the crossing and a collision results, he is so clearly guilty of contributory negligence that the court should say so as a matter of law. He can take no close chance except at his peril. If, however, when he looks he sees a car so far distant that in the exercise of ordinary prudent judgment he is justified in concluding that he can safely make the crossing and attempts to do so, it is for the jury to determine whether under the circumstances he should have stopped before attempting to drive over the tracks. In the present case we have concluded after a careful examination of the record that whether the deceased husband performed the duties required of him by law was a question of fact for the jury. There was testimony to show that as the horse and buggy approached the crossing the husband kept a lookout for an approaching car in one direction and the wife in the other. Both continued to look until the head of the horse In an equity suit, findings of fact of the be reversed because the appellate court might lower court supported by testimony will not have found differently, though they must be reversed if a different finding is necessary. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 3970-3978; Dec. Dig. 8 1009.*] 2. TRUSTS (§ 103*) - CONSTRUCTIVE TRUST ESTABLISHMENT. Where a son procured, through fraud and deception practiced by him against his mother, the execution and delivery to him of a deed to property, the title to which she had the right to redeem from another, and which she had been struggling to redeem by small payments for several years, he will be adjudged to hold title thereto as her trustee. [Ed. Note. For other cases, see Trusts, Cent. Dig. § 154; Dec. Dig. § 103.*1 Appeal from Court of Common Pleas, Cambria County. Action by Louisa Luther against Frank O. Argued before MITCHELL, C. J., and was at the edge of the tracks. Up to this point they did all they were required to do. The contention that the driver should have stopped at some place along the intersecting street where he could have seen the ap proaching car, or if there was no such place along the street that it was his duty to get out of the buggy and walk ahead of his horse W. C. Fletcher, A. V. Barker, Mathiot to a point where he could see, is without mer-Reade, E. H. Flick, and W. I. Woodcock, for it as applied to the case at bar. No such appellant. M. D. Kittell and Philip N. Shetduty is required of the driver of a team at tig, for appellee. a street railway crossing as has been hereinbefore pointed out. The testimony shows that both husband and wife continued to look until the head of the horse had reached the tracks. As he looked, he then saw for the first time the car rapidly approaching over an elevation in the street which obstructed a further view from the crossing. The car was running at an excessive rate of speed through the borough, and, seeing his danger, he immediately turned the head of the horse and attempted to drive alongside of the track so as to avoid the collision. He was too late, and received the injuries from which death resulted. Neither the horse nor the buggy was on the track at the time of the accident, but the front wheel was close enough to be caught by the overhang of the car. Certainly under these circumstances it was at least for the jury to say whether he was guilty of contributory negligence. The learned court below submitted the questions BROWN, J. This controversy is between a mother and her son. Alleging that, through fraud and deception practiced by him upon her, he had procured the execution and delivery to him of a deed for property which for years she had been struggling to redeem. This bill was filed, asking for a decree adjudging that he holds the title as trustee for her. From his admissions in the answer and in his testimony, considered in connection with the evidence offered in support of the bill, the finding of the court that the appellee had not practiced artifice and fraud upon his mother in procuring her signature to the letter of December 5, 1902, is so clearly erroneous that it must be set aside, and the relief prayed for granted. Findings of fact by a lower court, if supported by testimony, will not be reversed because from that testimony we might have found differently, but when from it the findings must have |