may now be considered as settled law that in | same shall not be liable for any loss that Pennsylvania an investment by a guardian may arise thereby." or other trustee, unless authorized by the deed of trust, in the stock of an incorporated company, whether a bank, railroad, canal, manufacturing, or mining corporation, cannot be made at the risk of a ward or other cestui que trust. It is unnecessary to repeat the reasons which are the foundation of this rule. In England and in this country the adoption of the rule has been found essentially necessary for the protection of those who could not protect themselves. It will not do to say that because prudent men sometimes invest their own money in such stocks guardians may legally invest the estate of their wards in like manner." About 30 years later after full argument and due consideration, we recognized and enforced the rule announced in those cases in Frankenfield's Appeal 11 Wkly. Notes Cas. 373, 374. It was said: "This being so, the law regulating investments by committees of lunatics becomes applicable to the case and controls it. The Act of June 13, 1836 [P. L. 599] § 34, expressly directs that such investments must be made under the direction of the court of common pleas, and only exempts the committee from liability for loss when he pursues this course and in good faith. In Hemphill's Appeal, 18 Pa. 303, it was firmly and definitely settled that a trustee can only protect himself from risk when he invests the trust fund in real or governmental securities, or makes the investment in pursuance of an order of court."

The doctrine thus firmly established in this state prohibits a trustee from investing the estate of his cestui que trust in the bonds or stocks of a private corporation. The people of the commonwealth have attempted to enforce the rule by article 3, § 22, of the present Constitution, which prohibits the General Assembly from authorizing the investment of trust funds by a trustee in the bonds or stocks of any private corporation. Time has tested the wisdom of the rule, and, as our cases declare, it is firmly established in this commonwealth. The Legislature has provided that trustees may invest their funds on real estate security or in securities of certain public corporations by consent of the court, and that the trustee shall then be exempt from liability for loss on such investment. In addition to that legislation, the General Assembly passed Act June 13, 1836 (P. L. 599; 2 Purdon's Dig. [13th Ed.] p. 2396), section 34 of which provides: "It shall be lawful for any committee as aforesaid, by the leave and under the direction of the court of common pleas having jurisdiction, as aforesaid, to invest the money of a lunatic or habitual drunkard, in such stocks or upon such security as shall be approved of by such court; and if such investment be

The committee of the lunatic in the pres ent case invested part of the funds of the estate in first mortgage bonds of the Beaver Valley Brewing Company, a private corporation, and it appears that the company has become bankrupt. The beneficiary objected to allowing the committee a credit in his account for the bonds. The auditor and the learned court below refused to allow the credit, and the committee has appealed. Under our authorities, it is apparent that the investment was illegal, and the committee had no right to make it. This is so well settled by the decisions we have cited above that a discussion of the question is unnecessary. While this may be a hardship upon the committee, he could have relieved himself from all liability for the investment of the funds of the cestui que trust by applying to the common pleas for an order of court. The Legislature has made provision for the protection of the committee of a lunatic in the Investment of trust funds, and the committee should avail himself of the statute. The lunatic is the ward of the court, and the committee is simply its bailiff or agent in protecting him and his estate. There is every reason, therefore, why the court should be consulted about the investment of his funds. This was the idea of the Legislature when it enacted the statute of 1836, authorizing the committee to obtain the protection of the court in the investment of a lunatic's estate. If, therefore, the committee disregards the act of assembly, and invests the trust funds in other than statutory securities, and without the consent of the court, he does so at his own, and not at the lunatic's, peril. The lunatic is helpless, unable to protect himself or his estate, and hence the legislation, enacted for his protection, should be rigidly enforced.

The court properly refused to ratify the investment on the application of the committee. As we have seen, the committee should not have invested the funds of the lunatic in the bonds of the brewery company, a private corporation, and at the time the application was made for the ratification of the investment the brewing.company was insolvent and in bankruptcy. The application was four years after the investment had been made, and after the auditor had held that the investment was illegal and surcharged the committee. To grant the application and approve the investment nunc pro tunc as of the time it was made would, under the circumstances of the case, encourage injudicious and illegal investments of the estates of cestuis que trust. We are all of opinion that the learned judge did not commit error in declining to ratify the investment.

The assignments of error are overruled,

While negligence is not presumed from the mere fact of injury to a passenger in jumping to avoid an apparent collision, if the accident was of such character that it could not ordinarily happen if the company used reasonable care, the happening of the accident is some evi[Ed. Note. For other cases, see Carriers, dence of negligence, in absence of explanation, Cent. Dig. 88 1085-1109, 1117; Dec. Dig. subject to rebuttal by negativing the negligence 280.*

•For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

15. CARRIERS (§ 292*)-OPERATION OF STREET [ing with a defective brake; that the defendRAILROAD-CARE REQUIRED. ant carelessly and negligently used and operated the car on which the said plaintiff was riding as a passenger with a defective sand lever; that the said defendant carelessly and negligently used and operated the car

A street railroad company must exercise reasonable care and diligence, proportioned to the dangers likely to result from its failure to do so, to keep its roadbed and tracks free from dangerous obstructions.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. 88 1168-1170, 1175-1178; Dec. Dig. on which the plaintiff was riding as a pas§ 292.*] senger with a defective sand box; that the said defendant carelessly and negligently 16. CARRIERS (§ 292*)-PASSENGERS-INJURIES -NEGLIGENCE-OBSTRUCTION ON TRACK. used and operated the car on which the said In determining, in a passenger's injury ac- plaintiff was riding as a passenger with an tion, whether it was negligent for a street rail-insufficient number of sand boxes. And the road company not to remove leaves on the track, the jury should consider the nature of the ob struction, whether it was necessary to remove it, and the character and extent of the labor required to do so, keeping in view the degree of care required by the company in maintaining

its tracks.

[Ed. Note. For other cases, see Carriers, Dec. Dig. 292.*]

Action by Isaiah N. Eaton against the Wilmington City Railway Company. Disagreement of jury.

Argued before PENNEWILL, C. J., and CONRAD and WOOLLEY, JJ.

plaintiff avers that by reason of said several acts of negligence on the part of the defendant, he, the said plaintiff, believing at the time that one car was about to collide with the other car, and also believing it to be for his own safety, stepped or jumped, just before the collision, from the car in which he was riding as a passenger to the street or ground, whereby he was greatly bruised, cut, mangled, broken, injured, and distressed, and became sick, sore, lame, and disordered, and so remained and continued for a long space of time, was permanently injured, underwent

W. W. Knowles, for plaintiff. Walter H. and still does undergo great pain and sufHayes and H. H. Ward, for defendant.

PENNEWILL, C. J. (charging jury). This is an action brought by Isaiah N. Eaton against the Wilmington City Railway Company to recover damages for personal injuries to the plaintiff, alleged to have been caused by the negligence of the defendant company in so running and operating its railway on September 26, 1908, as to cause a collision between two of its cars near Eighth and Monroe streets, in this city, on one of which cars the plaintiff was at the time a passenger. There are 11 counts contained in the plaintiff's declaration; but, without undertaking to set out specifically the negligence relied upon in each count, the several acts of negligence averred may be stated as follows:

fering, was forced to expend a large sum of money in attempting to be cured, and also lost large gains and profits which he would otherwise have made, and was prevented from attending to his ordinary and necessary affairs and business.

It is agreed by the defendant company that it is, and was, at the time of the accident a common carrier, and that the said company was operating the cars in question on West Eighth street at the time of the alleged injury, and that the company was rightfully and lawfully on West Eighth street. But the defendant denies that it was guilty of any negligence in the use, operation, or management of its said car or cars which caused the injuries to the plaintiff.

This action is based upon negligence, which has often been defined by this court to be the want of ordinary care; that is, the want, or failure to exercise, such care as a reasonably prudent and careful man would exercise under similar circumstances. It is for you to determine from the evidence whether there was any negligence that caused the injuries which are the subject of this suit, and, if there was, whether it was the negligence of the defendant.

That the defendant so negligently and carelessly operated the car upon which the plaintiff was riding as a passenger that it ran into a certain other car operated by the defendant; that the defendant so negligently and carelessly operated and permitted a certain car to remain standing on its railway as to be run into and struck with great force and violence by a certain other car; that the defendant negligently operated two cars on its line of railway, whereby one of said To enable the plaintiff to recover at all, he cars, upon which the plaintiff was riding as must have shown to your satisfaction by a a passenger, ran into the other car; that preponderance of the evidence that the negthe defendant so carelessly and negligently ligence that caused the accident, if any there managed and operated the car upon which was, was that of the defendant. Negligence the plaintiff was riding as a passenger as is never presumed. It must be proved, and to run the same at a high and dangerous the burden of proving such negligence is uprate of speed in the direction of and towards on the plaintiff, and the defendant can be a certain other car standing on the tracks held liable only for such negligence as conof the defendant company; that the defend-stitutes the proximate cause of the acciant carelessly and negligently used and op- dent. There is no presumption of neglierated the car on which the plaintiff was rid-gence, either on the part of the plaintiff or

on the part of the defendant, from the mere 778, that a plaintiff will not be held guilty fact that the plaintiff was injured.

hand, the company is not required to do impossible things, nor is it an insurer against all injuries which may result from such obstructions. It is liable only for such injuries as are the result of its negligence or failure to use due care; and it is a question of fact for your determination, from all the facts and circumstances as disclosed by the evidence, whether it was the duty of the company in the exercise of such due care, as we have defined it, to have removed the obstructionthat is, the leaves-from their tracks.

from the accident, including therein his pain | such care and diligence. But, on the other and suffering in the past and such as may come to him in the future from said injuries; also for his expenses for medical attendance, and for any permanent impairment of his ability to conduct his business, and for loss of his services in the management and prosecution of his business, as shown by the evidence. But under the pleadings, you cannot, in estimating his damages, consider any expenditures made by the plaintiff in employing some one to take his place or do his own particular work. And you may not consider any loss of profits in his business which were occasioned by his injuries. You may estimate, if you can, what his services were worth in his business, and in so doing take into account the character and extent of his business, the services he rendered in connection therewith, and his inability to perform such services by reason of his injuries. But such profits are too uncertain and speculative to be considered as an element of the plaintiff's damage. They depend, not only upon his services and attention, but also upon other factors, other men employed in the business, and many other contingencies. 4 Suth. Damages, §§ 1246, 1247; Joyce, Damages, § 235; Goodheart v. Railroad, 177 Pa. 1, 35 Atl. 191, 55 Am. St. Rep. 705; Hewlett v.

Railroad, 63 App. Div. 423, 71 N. Y. Supp. 531; Masterson v. Mt. Vernon, 58 N. Y. 391; Bierbach v. Goodyear Co., 54 Wis. 208, 11 N. W. 514, 41 Am. Rep. 19; Silsby v. Car Co., 95 Mich. 204, 54 N. W. 761; Blate v. Railroad, 29 App. Div. 388, 51 N. Y. Supp. 590. And we may say to you, gentlemen, that in estimating the damages to which the plaintiff is entitled, if any there are, you are to be governed entirely by the testimony, and not at all by speculation.

If you are not satisfied that the injuries to the plaintiff were caused by the negligence of the defendant, or if you should believe that said injuries were the result of an unavoidable accident, your verdict should be in favor of the defendant.

Some time after the jury had retired to their room, they were brought back into court and further charged as follows:

PENNEWILL, C. J. Gentlemen of the jury, we have received from you the following inquiry: "Whether the leaves such as testified to as being upon the tracks, were such an obstruction that it was incumbent upon the company to remove?"

In response to that inquiry, we will say that it is the duty of a railway company to exercise due care and diligence in keeping its roadbed and tracks free from dangerous objects or obstructions. The care and diligence required of the company in these respects, however, is reasonable care and diligence, proportioned, of course, to the dangers or mischief liable to ensue from an omission of

You may consider, in determining this question, the nature of such obstruction, whether it was necessary to be removed or not, and the character and extent of the labor that would be required to effect such removal, bearing in mind the degree and extent of the care the company should have used in this regard, as we have defined it. The jury disagreed.

(7 Pen. 71)

STATE v. AINSCOW.
(Court of General Sessions of Delaware. New
Castle. March 18, 1908.)
INNKEEPERS (§ 4*)
BUSINESS.

LICENSE NATURE OF

Laws, c. 418, to keep an inn or tavern, is not A person having a license under 14 Del. required also to have a license to keep an eating house, as provided by 13 Del. Laws, c. 117, to authorize him to lawfully furnish and serve meals and refreshments, other than spirituous liquors.

[Ed. Note.-For other cases, see Innkeepers, Dec. Dig. 8 4.*]

Prosecution of Alfred L. Ainscow under an indictment for keeping an eating house without a license. Verdict, not guilty.

JJ.

Argued before SPRUANCE and BOYCE,

Robert H. Richards, Atty. Gen., for the State. Walter H. Hayes, for defendant.

SPRUANCE, J. (charging the jury). In this indictment, which you have been impaneled to try against Alfred L. Ainscow, the charge is that on the 7th of June, 1907, and on various other days and times between that day and the date of finding this indictment-which was at the September term, 1907-in the city of Wilmington, he, the defendant, did then and there unlawfully engage in the business of keeping an eating house without having a proper license therefor. In this case the prosecution' was instituted for the purpose of having a construction of the statute relating to the licensing of inns or taverns and eating houses, upon the question whether a person residing in the city of Wilmington, having a license of the character that this defendant has, engaged in such a business as he is engaged in, is also required to take out a license as