common-law and statutory rights and safeguards due to a person crossing a railroad track at a public highway. Arkansas. Chicago, R. I. & P. R. Co. v. Batsel (1911) 100 Ark. 526, 140 S. W. 726.

Georgia. Compare Central R. & Bkg. Co. v. Raiford (1889) 82 Ga. 400, 9 S. E. 169.

Illinois. McGuire v. Chicago & E. I. R. Co. (1905) 120 Ill. App. 112; Chicago, B. & Q. R. Co. v. Sample (1907) 138 Ill. App. 95, affirmed in (1908) 233 Ill. 564, 84 N. E. 643.

Missouri.-Torrance

V. Pryor

(1919) Mo., 210 S. W. 430. And see the reported case (STATE EX REL. BUSH V. STURGIS, ante, 1315); Stevens v. Missouri P. R. Co. (1896) 67 Mo. App. 356; Kerr v. Bush (1919) Mo. App., 215 S. W. 393.

-

Pennsylvania.-Compare Matthews v. Philadelphia & R. R. Co. (1894) 161 Pa. 28, 28 Atl. 936.

Virginia. Shiveley v. Norfolk & W. R. Co. (1919) Va. 99 S. E. 650.

West Virginia.-Bowles v. Chesapeake & O. R. Co. (1907) 61 W. Va. 272, 57 S. E. 131. Application of rule.

Thus, in Torrance v. Pryor (Mo.) supra, cited and followed in the reported case, the court, in answer to the contention of the railroad company that the plaintiff was a trespasser, said: "This is answered by the fact that at the time of the injury she was upon and within a public street crossing. She was in Scott street when struck. She had been in Scott street for nearly the width of the street (50 feet) before she was struck. It is true that she was going across Scott street from south to north; but she was in Scott street, and at a public crossing. One within a public street, at a public crossing, is not a trespasser. The general public has rights in streets as well as railroads crossing such streets. Whilst in a public highway, as here, a person cannot be a trespasser. Her intention to shortly leave the public highway would not change her right to be in the street, and would not make her a trespasser upon the railroad property in the street. We fail to see the force of

this contention under the practically undisputed facts of the case. She might have intended to become a trespasser; but so long as she was in a public highway, where the public has at least a qualified right to be, she could not be a trespasser."

So, in Stevens v. Missouri P. R. Co. (1896) 67 Mo. App. 356, the court said: "That plaintiff intended, when passing over the street crossing, to go upon defendant's right of way (outside of crossing), and thence over its private yards to his, plaintiff's, dwelling, can have no bearing on the merits of the case. He had an undoubted right to pass over the street crossing, whether thereafter intending to go east, west, north, or south. The material question is, Was he, at the time he was run over by the cars, within the limits of the street crossing? What course, or over what property, he intended subsequently to travel, was wholly immaterial."

Kerr v. Bush (Mo.) supra, was an action for damages for the killing of the plaintiff's husband by one of the defendant's trains. The accident occurred at a public road crossing, and the negligence alleged was the failure of the defendant to give the statutory signal by bell or whistle when the train in question approached and passed over this public crossing. It was held that while the arbitrary statutory requirements of signals at crossings are intended for the protection of persons crossing the track thereat, and not for those walking along the track, yet, where a person of the latter class is injured on the crossing, a failure to give the statutory signals is evidence of common-law negligence. Citing the case of Torrance v. Pryor (Mo.) supra, the court pointed out that in the Torrance Case the plaintiff was relying on the common-law duty rather than the statutory requirement as to giving adequate warning when about to run a train across a public highway. The court said: "We see no difference in principle, though the common-law duty and requirements are far more flexible and less arbitrary." In the course of the opinion it was said further: "While, therefore,

a failure to give the arbitrary statutory signals may not be negligence per se toward one using the track as a roadway, a sufficient warning to constitute due care being given in other respects, yet, had this case proceeded on the theory that the deceased was injured on the crossing, and that the train approached and passed over this public crossing on a dark, stormy night, without any headlight or other warning light, and without giving any warning sound or signal of its approach, then, such facts being found to be true, the plaintiff is entitled to recover under the ruling in Torrance v. Pryor (Mo.) supra, notwithstanding the deceased had approached such crossing along the railroad track."

The same principle was announced in Chicago, R. I. & P. R. Co. v. Batsel (1911) 100 Ark. 526, 140 S. W. 726, an action to recover damages for personal injuries sustained by the plaintiff by being run over by one of the defendant's trains at a public crossing. The defendant contended that the plaintiff could not recover, as the evidence disclosed that he was a trespasser on the defendant's property. The court said: "We do not think it necessary to pass upon the question as to whether or not the public was using the railroad right of way along the vacant block as a highway by implied invitation or permission of defendant, or whether the use thereof by the public and the plaintiff as a footpath was so general, long continued, and oft repeated that the defendant must have known it and acquiesced in it, and thus have constituted the plaintiff, while in the use thereof, a licensee, and not a trespass

er.

. . . The injury did not occur upon the railroad right of way in this vacant block, but it occurred at the public crossing in a public street. The fact that, prior to that time the plaintiff had been walking on the roadbed between the tracks along the vacant block, whether he was then a trespasser or not, could not affect his rights at the time when he was actually on the public crossing. When he was in the street at this public crossing, he then became a traveler in a public

highway at the crossing of defendant's track, and he had then the right to use such crossing equally with the defendant. At that place and time he was not a trespasser upon defendant's right of way."

So, in Bowles v. Chesapeake & O. R. Co. (1907) 61 W. Va. 272, 57 S. E. 131, the defense asked the trial court to give the following instruction: "The court instructs the jury that the undisputed facts in this case show that John H. Bowles was unlawfully walking on defendant's track for his own convenience in going to Wood's restaurant, and although he may have been struck on or near the crossing, yet his administratrix cannot recover damages for his death, even if legal signals were not given nor lights displayed, unless you find from the evidence that, after he was discovered on the track, the defendant's employees, by the exercise of reasonable care, could have avoided striking him." In holding that this instruction was misleading and was properly refused, the court said: "I would hold that even if Bowles had been walking on the track, when he reached the crossing he ceased to be a trespasser. When he set foot in the crossing it became immaterial how he reached it, whether by coming off the track or from the county highway, because over the ground covered by the crossing the company was bound to furnish protection and safety for all persons on it.".

Likewise, in Chicago, B. & Q. R. Co. v. Sample (1907) 138 Ill. App. 95, affirmed in (1908) 233 Ill. 564, 84 N. E. 643, wherein the specific act of negligence charged against the railroad company was its failure to keep in repair the crossing and approaches thereto, it was held that when once a person is within the boundaries of a railroad crossing he has a right to travel thereon in any direction, without regard to the place or direction whence he may have approached and entered on the crossing, or irrespective of whether he was a trespasser immediately prior to going on the crossing.

The same conclusion was reached

in McGuire v. Chicago & E. I. R. Co. (1905) 120 III. App. 112, which was an action to recover damages for the killing of the plaintiff's intestate by a passenger train of the defendant at the crossing of its railroad with a street in an incorporated village. The court said: "The deceased had the undoubted right to travel this public street 'in the pursuit of his business, pleasure, or even caprice;' and we are of opinion that if, at the time he met with his death, he was passing over or along the right of way, within the limits of the street, he was where he had a right to be, and not a trespasser. And this is so without regard to whence he came or whither he was going."

In Shiveley v. Norfolk & W. R. Co. (1919) Va., 99 S. E. 650, the evidence disclosed that the plaintiff's intestate was walking along the defendant's right of way, and was struck by a train when he reached a public crossing. The defendant insisted that the statute (Code, § 1294d, subd. 24) requiring crossing signals to be sounded had no application under the facts, because the deceased was traveling along the railroad track, and not along the highway. It was held that the deceased was entitled to such safeguards when on the crossing, although he had reached the crossing by traveling along the railroad right of way. However in Matthews v. Philadelphia & R. R. Co. (1894) 161 Pa. 28, 28 Atl. 936, wherein it appeared that the plaintiff's husband was killed at a public railroad crossing, negligence was alleged on the part of the company in not lowering the safety gates or giving any warning of the approaching train. It was held that, as the deceased reached the crossing by walking along the track, he was a trespasser, and was in no sense a traveler, and that the lowering of the gates was a safeguard to keep people from going on the crossing on the approach of trains, not to warn them to get off, and a compulsory nonsuit was held to have been properly entered.

In Central R. & Bkg. Co. v. Raiford (1889) 82 Ga. 400, 9 S. E. 169, the plaintiff, it appeared, was walking along a railroad track, and at about the time he reached a public crossing was struck by a train which approached from the rear. It was alleged that the defendant was guilty of gross negligence in failing to give the signals required by law on approaching the street crossing, either by ringing the bell or blowing the whistle of the engine; and that, when the train approached the crossing, the defendant's employees failed to slacken its speed and to have it under control so as to stop. The court said: "Whether he was then upon the crossing or slightly beyond it is uncertain; but in either case there was negligence on the part of the railroad employees, under §§ 708, 709, and 710 of the Code, in failing to ring the bell and check the train. While these measures of statutory diligence are intended for the protection of persons crossing the track, and not for those walking along the track, yet, relatively to the latter, as well as the former, a failure to comply with the statute is evidence of negligence, to be considered by the jury.

On the part of the company there seems to have been no negligence whatever except in failing to ring the bell and check the train, as required by the statute. With knowledge that the train was behind, and was soon to pass along the track, Raiford, while walking along the track in front of it, was bound to come up to that measure of diligence which a prudent person would have exercised for his own safety under like circumstances. He may have exercised that degree of care which such a person would have used in crossing a railroad upon a public crossing, but that would not suffice: for one who walks upon a railway track, using and intending to use it as a passway, not only at the crossing, but on both sides, must, even when at the crossing, be much more on the alert than when he merely attempts to cross from side to side of the railroad." W. F. F.

Dec. 587; Waters v. Wing, 59 Pa. 211; Decker v. New York C. & H. R. R. Co. 57 Pa. Super. Ct. 432.

The wall was inherently defective, and hence defendant is not liable for resulting consequences.

Richart v. Scott, 7 Watts, 460, 32 Am. Dec. 779; Jackman v. Rosenbaum Co. 263 Pa. 158, 106 Atl. 238.

Neither the defective wall, nor the open spaces therein, nor the razing of defendant's old building, was the direct cause of the injury alleged. Each may have been a condition, but not the proximate cause; for without rain and snow, which plaintiff was bound in common experience to expect, no damage would have occurred.

Herr v. Lebanon, 149 Pa. 222, 16 L.R.A. 106, 34 Am. St. Rep. 603, 24 Atl. 207; King v. Lehigh Valley R. Co. 245 Pa. 25, 91 Atl. 214.

Mr. Frederick H. Warner, for appellee:

The wall was not illegal, and it was not a party wall. A division wall is only a party wall where at the time of its erection the properties it separates were owned by different persons.

Amer v. Longstreth, 10 Pa. 145; Doyle v. Ritter, 6 Phila. 577.

There was no error in admitting the photographs.

Com. v. Connors, 156 Pa. 147, 27 Atl. 366; Com. v. Swartz, 40 Pa. Super. Ct. 370.

Plaintiff was entitled to compensation for inconveniences suffered.

Baker v. Pennsylvania R. Co. 236 Pa. 479, 84 Atl. 959; Swisher v. Sipps, 19 Pa. Super. Ct. 43.

Walling, J., delivered the opinion of the court:

This is an action of trespass between owners of adjoining property. Some forty years ago, the owner of the lot on the south side of Chelton avenue, west of Pulaski avenue, Philadelphia, built thereon a three-story double house, called twin houses, of stone and brick construction, with a division wall of like material separating the two houses. He sold each house to a separate purchaser, with the center of the wall as the dividing line. Thereafter plaintiff bought the west house in 1910, and defendant the east house in 1916, and removed it the same year to make room for a new two-story brick garage. This exposed the division wall, which was

found loosely constructed and of defective material; in fact, there were holes through the wall especially near the rafters. In erecting his garage, defendant built a new wall two stories in height, adjoining the old wall, which left the third story of the latter exposed to the weather; and the evidence for plaintiff is to the effect that the defendant so removed the joists of his old building from the division wall as to make additional openings therein; and that at the second floor of the garage he inserted steel beams into the old wall by which it was overloaded and greatly damaged; also, that he entirely neglected to protect the exposed wall, or to place flashing between it and the roof of the garage. Plaintiff resided on the third floor of his house and occupied the balance thereof as a store and shop wherein he made, repaired, and stored furniture and materials therefor; and the evidence on his behalf tends to show that the rain and snow came through the exposed wall, and also went down between the new and old walls and filtered through the latter, by reason of which large quantities of water entered plaintiff's building doing great injury both to it and its contents, for which plaintiff brought this suit. Each side submitted evidence, and the jury found for the plaintiff. This appeal by defendant is from judgment entered upon the verdict. Notwithstanding the division wall, or the defects therein (Richart v. Scott, 7 Watts, 460, 32 Am. Dec. 779), defendant might lawfully right to remove replace his old building with a new one; and, if properly done, he would be in the exercise of a right, and not liable to the adjoining owner. See opinion of this court by Mr. Justice Moschzisker, in Jackman v. Rosenbaum Co. 263 Pa. 158, 170, 106 Atl. 238; also Buck v. Weeks, 194 Pa. 522, 45 Atl. 325, and Swisher v. Sipps, 19 Pa. Super. Ct. 43. However, the old wall had been a division wall, sup

Party wall

building.