pay for the bills would not relieve Mrs. Lowry of the payment of the bills purchased by her, unless it was further agreed that she should be relieved;] that the goods should be sold to her, but charged to Mr. Courtright; and that she would not be looked to for the payment. It would require an agreement to that extent in order to relieve her now. That is what she testifies Mr. Warner said was the agreement, and it is entirely a question for you to determine where the truth lies in this. [The fact that Mr. Courtright made himself liable for the goods would not discharge Mrs. Brewer, unless it was agreed before the goods were purchased that Mrs. Lowry was not to be responsible for them. There may how much the different members of his family were purchasing. For nearly three years, and up to December 7, 1882, Warner Bros. continued to supply goods under this arrangement with Mr. Courtright, who paid all the bills. During the time from January 31, 1882, to December 7, 1882, they supplied Mrs. Lowry, on Mr. Courtright's account, with goods to the amount of $783.33. At the latter date she married Eben Brewer, and removed to the city of Philadelphia. Shortly after this Mr. Courtright called at the place of business of Warner Bros., and said to them that lie was going out of town on a business journey; that it was not convenient at that moment to pay the bill, but that he would pay it on his return. On that jour-be two persons responsible for the same bill, ney Mr. Courtright died. The Warner Bros. applied to his ex cutors for payment of the bill. Mr. Courtright's executors refused to pay the bill, and Warner Bros., without taking any action against Mr. Courtright's executors, brought this action in assumpsit against Mrs. Brewer. On the trial the court charged the jury as follows: "The fact of the purchase of these goods by Mrs. Brewer, formerly Mrs. Lowry, from the plaintiffs, is not disputed, and there is no dispute about the correctness of the bill; that she personally bought the goods, and that they were delivered to her; and there is no dispute that the bill has not been paid. If there were nothing else in the case but these facts, it would be the end of the case, and the verdict, of course, would be for the plaintiffs; because when one buys goods, and they are delivered to her, although there is no promise to pay, the law implies a promise that the purchaser will pay what they are worth. Unless the defendant, Mrs. Brewer, has shown some reason which will discharge her from this liability to pay for the goods, your verdict must be for the plaintiffs. Has she showu anything that satisfies you that she was to be discharged from any liability for paying for the goods that she purchased? It is claimed by her that in the latter part of 1879 or the early part of 1880 Mr. Courtright went to the store of the plaintiffs, and paid up the bill that was standing on the books against him, which included articles sold to Mrs. Courtright and Alice Courtright, and also paid a bill that was was then standing against Mrs. Brewer; that he then directed the plaintiffs to separate the bills, and charge the articles purchased by the different members of the family to the one purchasing them. There is a little conflict in the testimony as to what he said further; the defendant claiming that he said he would pay the bills then, and the evidence given by Mr. Warner before the arbitrator being perhaps to that effect, but he now testifying to you that Mr. Courtright said that from that time he would give the members of his family an allowance, and that they would pay the bills from their allowances. [Now, the fact that he gave this direction and agreed himself to and the fact that Mr. Courtright was responsible would not relieve Mrs. Lowry, unless there was an agreement to that effect.] It has been shown in the testimony that the bill was presented to Mr. Courtright shortly before his death, upon which this action is brought, and that he said it was not convenient for him to pay it then, but when he came back from a trip that he was about to make he would pay it. That promise to pay when he came back would not relieve the defendant, nor would it make Mr. Courtright responsible, unless he had agreed before to pay it. This promise having been made after the purchase, it is only evidence for you to consider, in corroboration of the theory advanced by the defendant, that the agreement was that Mrs. Lowry should not be called upon to pay. [The simple question for you to decide is whether there was any agreement to relieve Mrs. Lowry from the payment of this bill before the bill was contracted, or at the time it was contracted. An agreement of that kind afterwards would not be valid. If there was such an agreement before the contracting of that bill, or at the time it was contracted, that Mrs. Lowry should not be responsible for it,-your verdict should be for the defendant. If there was no such agreement at or before the incurring of the indebtedness, your verdict should be for the plaintiffs for the amount of goods purchased and interest, I presume, from the last day.] The plaintiffs will present to you a statement of their claim, which, of course, you are not bound to take as true. You must take the bill itself as sworn to, and make your own statement, but for the purpose of assisting you he will present the claim. "Plaintiffs' Point. The counsel for the plaintiffs has asked the court to charge that if you find that the goods in question were sold and delivered to Mrs. Brewer, and used by her and her family, and at the time of such sale they were charged to her by the plaintiffs, and have not been paid for, the plaintiffs are entitled to recover. Answer to Plaintiffs' Point. The general rule is as stated in this point. The plaintiffs are entitled to recover unless the jury find from the evidence that the goods sold were sold under an agreement by the plaintiffs that they should be paid for by Mr. Courtright, and that Mrs. Brewer should not be held liable for them. "Defendants' Point. Counsel for the defendants has submitted this point: The court is requested to charge the jury that if they believe from the evidence that Mrs. Lowry and her children at the time the goods were sold were members of the family of Mr. Courtright, and that the plaintiffs, Warner Bros., were directed by Mr. Courtright to charge the goods in the name of Mrs. Lowry, but that he would pay for them, the account should be paid by the estate of Milton Courtright, and is not a legal claim against Mrs. Brewer, and therefore the verdict should be for the defendant. Answer to Defendants' Point. I haven't this written down, but the answer to this point is practically contained in the answer to the point made by the plaintiffs; that is, that Mrs. Brewer is liable for the amount of this bill unless she has proven to you that there was an agreement made by the plaintiffs, at or before the time of the purchase, that she should not be liable." Defendants excepted to that part of the charge in brackets, and to the answers of the court to plaintiffs' and defendants' points. The jury returned a verdict of $1,055.15 for plaintiffs, and judgment was entered thereon. Defendants bring error G. A. Allen and Louis Rosenzweig, for plaintiffs in error. A. L. Whittelsey, for defendants in error. PER CURIAM. On the argument at bar, judgment affirmed. (126 Pa. St. 160) BUTLER v. GETTYSBURG & H. R. Co. (Supreme Court of Pennsylvania. May 3, 1889.) ACCIDENTS AT RAILROAD CROSSINGS-NONSUIT. In an action against a railroad company for personal injuries sustained at a public crossing by the collision of an engine with plaintiff's wagon, it is proper to direct a nonsuit where it appears from plaintiff's cross-examination that, by turning his head at any point on the road within 100 yards of the crossing, he could command a view of the track for a distance of one-third of a mile, though on his direct examination he testifies that he stopped, looked, and listened several times, but saw and heard nothing of the engine until his horse was just on the track. Error to court of common pleas, Cumberland county; W. F. SADLER, Judge. begin to converge at a point about 100 yards south of the crossing, where the turnpike passes over a hill, on the summit of which is Mr. Mansfield's house. Beyond Mansfield's house the railroad and turnpike run parallel to each other for some distance, with nothing to obstruct the view of either. Plaintiff was traveling northward. He testified that when he came to Mansfield's house, the point where his observation was best, he stopped, looked, and listened. The whole track towards the south for the distance of over one-third of a mile was in clear view. He saw and heard nothing. He passed on to Smith's house, balfway to the crossing, pulled up his horse, turned, looked back towards the south, but saw nothing. He then drove slowly, looking backward and listening, seeing and hearing nothing until his horse was just on the track. He then heard the alarm, whipped his horse over the track, but the wagon was struck by the engine before he had crossed. At the close of plaintiff's evidence, defendant moved for a nonsuit, which was granted. The court subsequently refused to take it off, delivering the following opinion: "PER CURIAM. The cross-examination of the plaintiff showed, under the ruling in Railroad Co. v. Beale, 73 Pa. St. 504, and kindred cases, contributory negligence on his part, and justified the granting of the nonsuit. The dangerous character of the crossing must have been well known to the plaintiff, as he was accustomed to pass over it. A reference to some of the questions put to Mr. Butler by the attorneys for the defendant, and his answer is made in support of the view entertained by us: Question. If you had stopped just before your horse got on the track, and listened, you would have heard the train? Answer. May be I might. Q. And if you had stopped when you got within ten or fifteen feet of the track, and listened, you must have heard the train coming, wouldn't you? A. I think I would. Q. But after you passed Smith's you thought you were safe? A. Yes, sir; I considered myself pretty safe. Q. You say you listened at Smith's, and considered yourself pretty safe? A. I stopped at Mr. Mansfield's. * * Q. If you had stopped, and looked for the train, when you got within twenty feet of the track, you would have seen it, wouldn't you? A. I reckon I would. I did look when I was about fifty feet from the track. I tell you that train was like lightning. Q. If you had stopped and looked particularly when you were fifty feet away from the track, you must have seen it or heard it? A. Yes; I have pretty good eye-sight. * * * Q. From the way that road is built there, when you get within, say, twenty feet from the track at the crossing, you can see up the track for some distance, can't you? A. Yes, Trespass on the case, by John T. Butler against the Gettysburg & Harrisburg Railroad Company, for personal injuries sustained at a public crossing in the borough of Mount Holly Springs, by a collision of one of defendant's engines with plaintiff's wagon. The borough includes within its corporate limits a strip of mountain territory about three-fourth of a mile in length, called "Hol- | sir. Q. For a considerable distance? A. ly Gap." It is narrowest at its southern end, where a turnpike and defendant's railroad intersect, forming the crossing at which the accident happened. The turnpike and road Yes, sir. Q. See back to the mill, and above it? A. Yes, sir. Q. If you had looked up the road, you would have seen the cars, but you weren't looking. Isn't that so? A. I " 1 don't suppose I was looking just then. Be- | tween Smith's and the crossing I looked the last time. Q. The road comes so that when you are within twenty feet of the track, if you look towards the upper mill, you can see the train plainly for a long distance? A. Yes, sir. Q. If you had looked then, you would have seen it coming? A. I suppose I might have looked then. My goodness! There 'might be a dozen men go along the same way and not look. Q. Do you drive much along that road? A. Pretty smart, sir, off and on. Q. You have seen the train coming from above that mill down that way often? A. Yes, sir. Q. You passed over this crossing nearly every day, didn't you? A. Pretty often, sir. Q. You had a very quiet horse? A. Very quiet, indeed. Q. Scare at the cars? A. No, sir. Q. If you had seen the train, and known it was coming, you could have stopped? A. Right close to the road, because the horse worked about it every day. Q. If you had stopped there, and the train gone by, & it would not have frightened him a bit? A. No, sir.' Now, while the testimony of the plaintiff in chief was such that, upon it alone, we should have submitted it to the jury, to determine whether he acted with reasonable care, yet it is proper to take the admissions against himself as true; and they certainly establish the fact that his negligence did, at least in some degree, contribute to the accident." (Supreme Court of Pennsylvania. May 7, 1889.) GUARDIAN-REVOCATION OF APPOINTMENT. It is not error, on the mother's petition, to revoke the appointment of a guardian for children of tender years living with her, which appointment was made without her knowledge or consent, on the petition of the children's grandfather, who had given the mother to understand that no application for the appointment of a guardian would be made without consulting her; it also appearing that the person appointed as guardian had, before his appointment, asserted some claim to the estate of the deceased father. Certiorari to orphans' court, McKean county; T. A. MORRISON, Judge. and that the said minors are children of Wilbur N. Corwin, deceased. That on the 6th day of September, 1887, your honorable court appointed one Andrew P. Corwin as guardian of said minor children, upon petition of John C. Corwin, the grandfather of said minor children. That the appointment of guardian was made by your honorable court, without notice of any kind to your petitioner that the said application would be made, and your petitioner did not know that said Andrew P. Corwin had been appointed guardian until long after the said appointment had been made. That the appointment of the said Andrew P. Corwin as guardian is very unpleasant for your petitioner, for the reason that he now attempts to assert his authority over the persons and estate of the said minors, ignoring entirely the rights and wishes of your petitioner, as their mother, and says that he intends to remove one of the said children, viz., Charles Corwin, and place him with other parties to bring up, and thus separate her family. That Andrew P. Corwin is ineligible to act as guardian of said minors, by reason of certain business transactions concerning a piece of real estate situate in said county of McKean, and deeded to Wilbur N. Corwin, deceased, by John C. Corwin, during his life-time, by reason of certain claims being made by the said Andrew P. Corwin and E. A. Corwin, his brother, which would be in direct conflict with the rights of said wards." A rule to show cause was granted, and, after argument, the court filed the following opinion: "Rule to show cause why the appointment of Andrew P. Corwin, guardian, should not be revoked. Wilbur N. Corwin died, in the county of McKean, on the 21st day of July, 1887, intestate, leaving to survive him a widow, Frances E. Corwin, and two minor children, Charles Corwin, aged eight years, and Grace Corwin, aged four years. On the 6th day of September, 1887, John C. Corwin, grandfather of these children, presented his petition to this court, praying for the appointment of Andrew P. Corwin as guardian of said minors, and on the same day the appointment was made, and a bond in the sum of six thousand dollars, with John C. Corwin as one of the sureties, approved by the court. From the evidence, we find that John C. Corwin is a resident of Friendship, in the state of New York; that after the death of Wilbur N. Corwin, and prior to the date of said appointment, he had a conversation with the widow, Frances E. Corwin, in regard to the appointment of a guardian for these children; that she was led to understand that no application would be made for such appointment until she had first been consulted. It further appears that the name of Andrew P. Corwin was not sug Frances E. Corwin, on December 5, 1887, filed the following petition in the orphans' court, praying for the revocation of the ap+pointment of Andrew P. Corwin as guardian of Charles Corwin and Grace Corwin, minor children of Wilbur N. Corwin, deceased: "The petition of Frances E. Corwin, of Foster township, McKean county, Pa., respect-gested to her, and that his appointment was fully represents: That she is the mother of Grace Corwin, aged five years, and the stepmother of Charles Corwin, aged eight years, and that they are residents of said county, procured without notice, and without her knowledge and consent. Judging from her petition and evidence, it is quite apparent that she would have opposed this appoint reason of the location of the Harrisburg & Potomac Railroad on his land. The viewers made their report, finding for plaintiff $225 damages, from which award he appealed to the court of common pleas. On the trial in that court the judge charged the jury as follows: ment, had she known it was about to be | petition for viewers to assess damages by made. A petition should not be presented for the appointment of a guardian for a minor child without notice to the surviving parent, if such parent be within the jurisdiction of the court. Senseman's Appeal, 21 Pa. St. 331. This was a case where the father was within the jurisdiction of the court, and a guardian was appointed for his minor child without notice to him, and the supreme reversed the decree. We think the mother should have notice of the application for the appointment of a guardian for her minor child, and more especially when, like the case in hand, the child is of tender years, and residing with its mother. We cannot shut our eyes to the proofs that Andrew P. Corwin had, prior to his appointment, asserted some claim to the estate of Wilbur N. Corwin, which seems to have induced the mother to believe that he was not a suitable guardian for the children. We cannot say, under the evidence, that she would not have been justified in objecting to this appointment. The conduct of John C. Corwin in coming from another state, and securing this appointment without the knowledge of the mother, is not praiseworthy. If this court had been fully advised of the facts in this matter before the appointment, we are confident it would not have been made. President Judge OLMSTED, who made the order appointing this guardian, informs us that he acted under the belief that Andrew P. Corwin was satisfactory to all parties interested, and that his appointment was for the best interests of the minors. We think it for the best interests of the family that this appointment be revoked, and some other person appointed guardian of these children." The rule was afterwards made absolute, and Andrew P. Corwin, the guardian, took his writ of certiorari. "A railroad corporation, with the commonwealth's conferred power of eminent domain,' as it is called, may take private property for public use. It may do this without the permission and against the consent of the individual owner. But the constitutional provision is: Municipal and other corporations and individuals invested with the privilege of taking private property for public use shall make just compensation for property taken, injured, or destroyed by the construction or enlargement of their works, highways, or improvements, which compensation shall be paid or secured before such taking, injury, or destruction.' Article 16, § 8. The Harrisburg & Potomac Railroad Company, the defendant in this case, took and occupied certain land of Mr. Long, the plaintiff in this case, and located their railroad thereon; and it is alleged by the plaintiff that by reason of such location of the defendant's road injury was done to the remainder of the tract not actually taken by the defendant. The railroad company, before entering upon his land,' gave Mr. Long a bond to secure to him just compensation for the property that might be taken, injured, or destroyed by the construction of its road, and viewers were subse-' quently appointed by the court to ascertain and report the amount of such just compensation. The act of assembly of the 19th of February, 1849, in relation to this subject, provides: And the said viewers, or any five of them, having been first duly sworn or affirmed, faithfully, justly, and impartially to Sheridan Gorton, for appellant. Stone, decide, and true report to make, concerning Brown & Sturgeon, for appellee. PER CURIAM. On the argument at bar, judgment affirmed. (126 Pa. St. 143) LONG v. HARRISBURG & P. R. Co. (Supreme Court of Pennsylvania. April 29, 1889.) EMINENT DOMAIN-COMPENSATION. all matters and things to be submitted to them, and in relation to which they are authorized to inquire in pursuance of the provisions of this act, and having viewed the premises, they shall estimate and determine the quantity, quality, and value of said lands so taken away or occupied, or to be so taken or occupied, or the material so used or taken away, as the case may be, and having a due regard to, and making just allowance for, the advantages which may have resulted, or which may seem likely to result, to the owner or owners of said land or materials, in consequence of the making or opening of said railroad, and of the construction of works connected therewith. And after having made a fair and just comparison of said advantages and disadvantages they shall estimate and determine whether any, and, if any, what amount of, damages has been or may be sus Under Act Pa. Feb. 19, 1849, relating to the appropriation of land for railroad purposes, which provides that the advantages which have resulted or may seem likely to result to the land-owner from the opening of the road shall be compared with the disadvantages arising therefrom, the advantages to be considered are such only as are special, not such as are common to neighboring properties, and the disadvantages such as are actual to the land alleged by the owner to have been injured by the construction of the road; and these advantages and disadvantages should be consid-tained, and to whom payable, and make reered only as they affect the land's market value. Error to court of common pleas, Cumberland county; BARNETT, Judge. C. Long, on November 30, 1883, filed his port thereof to the said court.' Laws 1849, p. 84, § 11. And it is further provided that upon the report of said viewers, or any four of them, being filed in said court, either party, resulting from negligence on the part of the corporation, may affect the convenient use and future enjoyment of the plaintiff's property. These disadvantages are to be consid within 30 days thereafter, may file his, her, | the particular location of the road, and not or their appeal from said report to said court. The viewers in this case having filed their report, an appeal therefrom was taken, and it is this appeal that is now trying before you. Now, the question for your considera-ered in comparison with the advantages, only tion, under all the evidence, is, having a due regard to, and making just allowance for, the advantages which may seem likely to result' to Mr. Long in consequence of the making or opening of said Harrisburg & Potomac Railroad, and of the construction of works connected therewith, and after having made a fair and just comparison of said advantages and disadvantages, to estimate and determine whether any, and, if any, what amount of, damages has been or may be sustained' by Mr. Long by reason of the location of the defendant's road upon his land. as they affect the market value of the land, because the rule as to the measure of damages is that jurors are to consider the matter just as if they were called on to value the injury at the moment when compensation could first be demanded. They are to value the injury to the property, without reference to the person of the owner, or the actual state of his business; and, in doing that, the only safe rule is to inquire, what would the property, unaffected by the obstruction, have sold for at the time the injury was committed? What would it have sold for as affected by the in"Compensation consists in giving back an jury? The difference is the true measure of equivalent in either money, which is but the compensation.' It is the business of the measure of value, or in actual value other- viewers, in the first instance, and, on appeal, wise conferred; and therefore it is that it be of the jury, to balance the advantages that are comes necessary to have a due regard to, and special against the disadvantages that are actmake just allowance for, the advantages ual, and, with the aid of the testimony laid bewhich may have resulted to the land-owner in fore them, to find out as well as they can how consequence of the making of the railroad by much less the land would fetch in the mar the corporation taking the land, and to com- ket by reason of the road, and that sum pensate in money for the damages which which will represent what has really been have not been compensated for by said ad- taken away from the owner should be given vantages. The damages, therefore, which back in damages.' This is the rule of law a jury may find in any given case, is the for the measurement of the plaintiff's damamount of money required to fully compen- ages. Consider and weigh the testimony of sate the land-owner, where he has not been the witnesses in the case, and, from a carealready compensated, either wholly or in part, ful consideration of the whole evidence, deby advantages, after having made a fair and termine whether the plaintiff's property aljust comparison of said advantages and dis-leged by him to have been injured would sell advantages. The advantages to be considered are such only as are special, and the disadvantages such as are actual, to the property claimed by the land-owner to have been injured or destroyed by the location of the road. The general appreciation of property in the neighborhood consequent to the construction of the defendant's road is not to be considered in comparison of the advantages and disadvantages resulting to this plaintiff. The land-owner whose lands have been taken is as fairly entitled to the benefit of this general appreciation in value as his neighbor whose land has not been taken, and whose enjoyment of his property has not been disturbed. The general increase of value resulting from the growth of public improvements accrues to the public benefit, and the particular land-owner is not to be charged therewith. The question in this case is whether the construction of the defendant's road has advanced the market value of his property specially, and beyond the more general appreciation of property in the neighborhood. The disadvantages to be considered are such as are actual to the plaintiff's property, the inconvenience arising from a division of the property, or from increased difficulty of access, the burden of increased fencing, the injury done to his buildings by interfering with the drainage from cellars, and, generally, all such matters as owing to for as much in the market after the construction of the defendant's road as it would have done before said construction; and, if you find from the evidence that it would, then your verdict should be for the defendant; but, if you should find from the evidence that it would sell for less after than before the construction of said road, find for the plaintiff the difference. In considering the testimony of the witnesses in this case, you will examine the facts detailed by them, and the reasons given by them, respectively, for their opinions, and determine for yourselves, from seeing the witnesses, hearing the testimony, how far their opinions are founded upon facts detailed and supported by the reasons given, and form your own opinion from a fair and impartial consideration of the whole evidence in the case. If from such consideration of the whole evidence you are satisfied that the property of the plaintiff crossed by the defendant's road would sell for as much after the location of the road as before, then render a verdict for the defendant. On the other hand, if you are not satisfied from the evidence that the plaintiff's property would sell for as much after as before the location of defendant's road, then your verdict should be in favor of the plaintiff. And in that case you should find in his favor such amount of damages as will equal the difference in the market value of the property after its de |