opinion as to the market value of the prop- | computing the number of lots it could be erty immediately before the location of the divided into, what each lot was worth, and railroad, for the reason that he has stated that that opinion was formed by estimating the number of lots in the Hamory land, and what it would bring if all the lots were sold at what the witness regards as a fair value of the lots, which is not the proper way to estimate the market value of the Hamory property as a whole.) The Court: Well we had better have this question settled now. Mr. Birch: I will ask the witness one question. Q. What is the most available purpose that that lot is fit for? A. For building purposes. The Court: Where they ask a witness if he is able to express an opinion as to the fair market value of the property as a whole, where he says he knows it, it is no matter by what method he makes up that estimate. If it is based on the market value in his judgment, the weight of his opinion will be for the jury. The objection is overruled, and the offer admitted and a bill sealed for the defendant." Direct examination resumed: "Mr. Birch: Q. What in your opinion, Mr. McCarty, was the fair market value of that property immediately before the railroad took it? A. About $25,000. Q. Have you seen the railroad, how it affects it through there? A. Yes, sir; I see what- Q. What effect does it have on the property? A. Well, I would think it would depreciate the value of the property nearly the one-half." Verdict and judgment for plaintiff for $8,400. Defendant appealed. Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ. R. W. Irwin, Jas. A. Wiley, and A. T. Morgan, for appellant. James I. Brownson and T. F. Birch, for appellee. ELKIN, J. In a proceeding to assess damages for lands appropriated for railroad purposes under the right of eminent domain, a witness produced by the landowner was asked on preliminary cross-examination if his estimate of what the property was worth at the time of the entry was based upon what it would bring if it had been laid out in building lots, and all the lots had been sold at what the witness thought they were worth. The witness having answered in the affirmative, objection was made that he was not qualified to express an opinion, because his method of estimating the market value of the whole tract was improper, and not in accordance with the rule of law governing such cases. The court admitted the testimony, and this ruling is the basis of the only assignment of error. While it is proper to take into consideration the use to which the land is best adapted, it is improper to determine the value of the whole tract by the value of the whole tract estimated on this basis. This is not a proper method of arriving at the value of the whole tract, as has been repeatedly ruled by this court. Penna. Schuylkill Valley Railroad Company v. Cleary, 125 Pa. 442, 17 Atl. 468, 11 Am. St. Rep. 913; Gorgas v. Railroad Company, 215 Pa. 501, 64 Atl. 680, 114 Am. St. Rep. 974. Nor was this error corrected by the learned trial judge in his charge to the jury. Where evidence has been improperly admitted which tends to prejudice the minds of the jurors, the error is not cured by an instruction in the charge to disregard it or to withdraw it from their consideration. Delaware & Hudson Canal Co. v. Barnes, 31 Pa. 193; Penna. Railroad Co. v. Butler, 57 Pa. 335; Huntingdon, etc., Railroad & Coal Co. v. Decker, 82 Pa. 119; Erie, etc., Railroad Co. v. Smith, 125 Pa. 259, 17 Atl. 443, 11 Am. St. Rep. 895. Assignment of error sustained, and a venire facias de novo awarded. (222 Pa. 625) KING v. McCLURE CO. (Supreme Court of Pennsylvania. Jan. 4, 1909.) 1. MASTER AND SERVANT (§ 197*)—INJURIES TO SERVANT-NEGLIGENCE OF FELLOW SERVANT. piece of machinery in place, and accident was Where plaintiff was helping to put a heavy due to the negligence of a master mechanic who participated with plaintiff in the work, plaintiff could not recover against the master; the negligence being only of a fellow servant. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 197.*] 2. MASTER AND SERVANT (§ 177*)-INJURIES TO SERVANT-FELLOW SERVANTS. Where the act or thing done resulting in injury to a servant was a duty imposed on the employer, then the negligent performance of it by a servant renders the employer liable; but, where such act was in the line of the ordinary workman's duty as an employé, the employer was not responsible, though the offending employé was a vice principal in charge of the work. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 352, 353; Dec. Dig. § 177.*] Appeal from Court of Common Pleas, Washington County. Action by E. W. King against the McClure Company. Judgment for plaintiff. Defendant appeals. Reversed. Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ. John H. Murdoch and Edgar B. Murdoch, for appellant. James P. Eagleson, for appellee. STEWART, J. The plaintiff received his injuries while assisting other workmen in the employ of the defendant company to put in place a large iron roller, a necessary part The to him which we are called upon to consider here was the duty to provide a reasonably safe place for the workmen in which to do their work; no other is involved. Did he do this as vice principal? Or rather was there any evidence in the case which would warrant the inference that he had failed in this regard? If none, it follows that liability for the accident was improperly imposed on the employer. There is not a suggestion or hint in the evidence, the charge of the court, or the argument by counsel for the appellee that the place where the plaintiff received his injuries was unsafe when he went to occupy it, which must have been within an hour at most of the accident. Undoubtedly the obligation remained on the vice principal to maintain the place in a condition of safety so long as the workmen were there employed. But in no respect whatever, so far as regards those physical features which the employer is bound to provide and look after for the safety of his workmen, is there even the slightest change shown to have occurred. The place remained safe except as the workmen there employed were exposed to the dangers necessarily incident to the kind of work they were doing. It was in connection with this feature of the case that the mistaken view prevailed to sustain the verdict. of the machinery in a tin plate mill, which | under direction of a manager and superinhad been temporarily removed for purposes tendent of the mill. The only duty delegated of repair. The roller, by means of a crane from which it was suspended, had been swung into a position where all that remained to be done was to place the spindles at either end of the rollers in their bearings or housings. As then suspended from the crane, the roller was immediately over a hole or pit some two or three feet lower than the floor surface of the building. The bearing or housing at one side was fixed and permanent; the other was movable and adjustable. latter was so placed that it was not necessary to elevate the end of the roller to obtain insertion of the spindle in it, but elevation of the roller was necessary in order to rest its spindle in the fixed bearing. The end next the movable bearing was released from the crane, and so much of the roller was allowed to rest upon an iron bar or rail laid across the pit. Unfortunately-and this is the negligence charged-the iron bar or rail, instead of being placed at the end of the pit where simply the released end of the roller would have rested on it, was placed about the middle, with the result that when the other end of the roller was being elevated so that its spindle might be inserted in its bearing, the weight of the roller was applied rather to the side of the rail, and this lateral pressure forced the rail back along the walls of the pit on which it rested to where the plaintiff was standing in the pit, guiding the end that was being elevated. The rail caught his leg while he was attempting to escape, and crushed it. The work of putting the roller in place was done under the direction of a workman named Johnson, who was a master mechanic, and who was himself assisting in the work. The jury found Johnson to be a vice principal, and we are required to so regard him. In our statement of the facts we have indicated the negligent act. It was the placing of the iron rail on which the roller was allowed to rest nearer the middle than the end of the pit. This was the sole cause of the accident; and the sliding of the rail from the pressure of the weight of the rolls as one end was being elevated was a result which ought to have been foreseen. What had Johnson, the master mechanic or foreman, to do with this, as vice principal? Suppose it was his own hand that put the rail where it was, and assume, further, that he was negligent in attempting to lift into place one end of the roller with the other end no better secured than it was, and that this negligence contributed to the accident, how can either of these considerations impose liability upon this defendant? Johnson was vice principal only in the sense that duties were delegated to him which were a personal and absolute obligation resting on the employer. It is not pretended that his control of the particular department in his charge was so absolute as to be independent of the over We quote from the opinion filed by the learned trial judge in overruling the motion for judgment non obstante: "The duty was upon him [the vice principal] to assign him [the plaintiff] a place to work that was not only reasonably safe, but that would continue to be safe until the roller was in position in the housing at either end. There was evidence which if believed tended to establish the plaintiff's contention that Johnson made the place in which the plaintiff was assigned to work unsafe, and against the protest of the plaintiff, and made it unsafe so suddenly that he did not have time to escape. The true meaning of the rule that the employer must furnish the employé a safe place to work is that the place is to be safe until the work he is assigned to do is complete or finished in the manner that the employer or his agent plans to have it done. The plaintiff when he first took his position had a right to presume that the work would be done so that the place in which he worked would not become dangerous, but Johnson, the agent of the employer, directed the work so that the place where the plaintiff was did become, not only dangerous, but the dangerous situation was so suddenly created by Johnson that the plaintiff did not have time to save himself from the danger. This logically was the same as giving the plaintiff originally an unsafe place in which to work. recognize the fact that Johnson was working with the plaintiff, King, to accomplish a We the act of the employé which causes the injury that determines the liability of the employer. If the act or thing done resulting in the injury to the employé was a duty imposed upon the employer, then the negligent performance of it by an employé of any grade will render the employer liable, but if such act was in the line of the ordinary workman's duty as an employé, then the employer is not responsible, though the offending employé was a vice principal in charge of the work generally." To the same effect is Casey v. Paving Company, 198 Pa. 348, 47 Atl. 1128, and Miller v. American Bridge Company, 216 Pa. 559, 65 Atl. 1109. We are of opinion that it was an error to refuse the motion for judgment non obstante. It is unnecessary to consider the other assignments. The judgment is reversed, and it is ordered that judgment be entered in the court below for the defendant non obstante veredicto. (222 Pa. 606) workmen, and that the negligent act done, | pressed it: "It is the character or nature of or caused to be done, by Johnson was his personal negligence, yet there was in our opinion sufficient evidence to submit the question to the jury whether or not he was a vice principal when he did that act." The error here is in attributing the accident to the place. Of course, the plaintiff would not have been injured as he was if he had not been in the place where the work was being done. Nor would the man who received a hurt from a falling brick as he walked along the pavement have been injured in that way had he stayed at home. In the latter case the accident would certainly not be referred to the pavement, which in no way contributed to the injury. Why then should plaintiff's injury be referred to the place where he was working, when the established proximate cause of the accident was a human agency wholly unrelated to the place, except that it happened there to be operated? Is it any answer to say that the place was made dangerous because of the manner in which Johnson was directing the work? Admitting that he employed a dangerous method, that circumstance in no way indicates any insufficiency in the place itself as a contributing element. The plain, unmistakable fact-we are speaking of what was found by the jury -is that Johnson's negligence was the proximate cause of the accident. It is just as clear that no reasonable provision in the way of protection to the workmen in connection with the place itself was omitted. Now was Johnson acting in the line of his vice principalship when directing how the work was to be done and assisting in it himself? The duty delegated to him was to provide a reasonably safe place, and to see that it was maintained in that condition. This he did. As to everything else he was a fellow workman with the plaintiff. Neither of the specific acts which, because improperly done, are to be considered as having produced the accident-the placing of the iron rail beneath the rollers, and the hoisting of the end of the roller to its bearing-was within the personal duty of the employer; they were matters of detail in the execution of the work. There is no rule of law which requires the employer, by himself or representative, to be always present to ward off every transient peril. The learned trial judge, in the opinion from which he have quoted, recognized that Johnson was working with the plaintiff to accomplish a common purpose; that they were fellow workmen, and that the negligent act done, or caused to be done, by Johnson was his personal negligence. These facts appearing, as they unquestionably do, were sufficient to defeat the plaintiff's cause of action. The law governing cases of this kind is nowhere more clearly and concisely stated than in Ricks v. Flynn, 196 Pa. 263, 46 Atl. 360, where our Brother Mestrezat thus ex MCINTOSH et al. v. ROPP. (Supreme Court of Pennsylvania. Jan. 4, 1909.) 1. JUDGMENT (§ 235*)-JOINT PARTIES PLAINTIFF ESTOPPEL AS TO ONE PLAINTIFF. without the remaindermen joining in the lease. A tenant by the curtesy executed an oil lease Thereafter the remaindermen brought a joint action to recover damages for the taking of oil cient evidence to constitute an estoppel against by the lessee. Held that, where there was suffione of the remaindermen, a joint recovery was defeated authorizing judgment for defendant. [Ed. Note.-For other cases, see Judgment, Cent. Dig. § 414; Dec. Dig. § 235.*] 2. ESTOPPEL (§ 92*)-ACQUIESCENCE. oil lease without the remaindermen, a son and Where a tenant by the curtesy executed an two daughters joining, but the son had urged the taking of the lease from his father, and had encouraged the expenditures of moneys by the checks payable to his own order for a number lessee in developing the lease, and had received of years for the royalty due in the name of his father, he was estopped to question the validity of the lease. [Ed. Note.-For other cases, see Estoppel, Dec. Dgi. § 92.*] Appeal from Court of Common Pleas, Butler County. Action by Edward E. McIntosh and Addie McIntosh against W. H. Ropp. Judgment for defendant, and plaintiffs appeal. Affirmed. Plaintiffs presented the following points: "(11) If Edward E. McIntosh did make any declarations as to being pleased or satisfied that Dierken and Whitener had taken an assignment of the wells, and intended fitting them up and pumping them, or any declarations to this effect, without knowledge of his rights, he would not be estopped, as one of the essential elements in estoppel is the knowledge of his own rights in the subject-matter by him who is to be estopped. Answer. This is refused if Edward McIntosh encouraged Dierken and Whitener to purchase the lease. Otherwise it is affirmed, and in that connec- the summer of 1907 and about the time this tion I may say to you what I probably neglected to say in the general charge that Edward McIntosh says that he has no recollection of having said those things which it is alleged he said before or at the time when Dierken and Whitener were contemplating the purchase of these wells. "(12) If one co-tenant or joint tenant by his acts, words, or conduct is estopped, it will not affect or destroy the title of the other co-tenants or joint tenants, if they were not present and had no part in misleading the injured party, and there has been no evidence shown in this case which would estop Addie McIntosh and Elizabeth Mary Lee. Answer. The acts, words, or conduct of one co-tenant will not affect or destroy the title of the other co-tenant or co-tenants who were not present and had no part in misleading the injured party; and, unless Addie McIntosh and Elizabeth Mary Lee, with a full knowledge of their rights, stood by in silence and saw the defendant, in a mistaken belief that he had good title, make his expenditures, they are not estopped. suit was brought. Answer. That is affirmed, with the qualifications that the jury may consider the fact of the sale of the oil by Edward McIntosh as a circumstance in the case, in its relation to the other evidence in the case, and the light, if any, which it throws upon the whole conduct of Edward McIntosh. The fact, however, in itself is not sufficient to predicate an estoppel upon it." Defendant presented these points: "(2) While the title to the McIntosh farm is in Kenneth McIntosh for life as tenant by the curtesy, and then will vest in the plaintiffs, and while Kenneth McIntosh had no right to lease it for oil purposes without the consent of his children, yet the plaintiffs may be precluded by their conduct from asserting their title to the prejudice of the defendant; and, if the jury find that before purchasing the wells from Sybert, and before paying the purchase money therefor, and before expending money in the development thereof, Dierken and Whitener were positively encouraged by Edward E. McIntosh to purchase or to expend money upon the wells, and he did not disclose the true state of the title, Dierken and Whitener being ignorant of it, there can be no recovery in this case, although Edward E. McIntosh may have been ignorant of his right. Answer. That is affirmed. failure to inform Sybert or Dierken and Whitener of their claim will now estop them from denying the rights of the defendant under the Sybert lease, and the burden of proof is upon the plaintiffs to show that they were ignorant of their rights at the time they should have given information of their claims. Answer. This is affirmed, with the qualifications that in order to the plaintiffs' estoppel, it should appear, in addition to the things set out in this point, that the defendant was making his expenditures without the same knowledge possessed at the time by the plaintiffs as to the rights of the parties, respectively. "(13) Elizabeth Mary Lee and her husband having joined in a deed of conveyance of her undivided one-third interest in the McIntosh farm to the plaintiffs on April 7, 1900, which deed is recorded April 13, 1900, in Butler county in Deed Book No. 186, p. 180, the "(3) If the jury find that the plaintiffs plaintiffs must recover in this case for the knew that B. B. Sybert, or Dierken and Whitdamage done the shares of Addie and Eliza-ener under him were expending money upon beth. Answer. That is answered in the same faith of a lease made by their father, knowway as the preceding point, which I will reading their rights in the land, their silence or as the answer to this point. The acts, words, or conduct of one co-tenant will not affect or destroy the title of the other co-tenant or cotenants who were not present and had no part in misleading the injured party; and, unless Addie McIntosh and Elizabeth Mary Lee, with a full knowledge of their rights, stood by in silence and saw the defendant, in a mistaken belief that he had good title, make his expenditures, they are not estopped. "(14) If Edward E. McIntosh did work on the wells after the purchase by Dierken for a week or more, and did haul an auger stem or other machinery to a shop for a contractor, and did furnish the coal to generate steam for the wells, from the beginning up to 1905, without the knowledge of his rights, these facts do not estop him, and are not evidence of estoppel. Answer. Without knowledge of his own right the facts set out in this point would not work an estoppel, unless he thereby encouraged future investment or expenditure, in which case he would be estopped to complain of any injury done after such encouragement had been given and expenditure made." "(4) Although Kenneth McIntosh could not make a lease of the McIntosh farm without the consent of his children, the plaintiffs, yet the fact that Edward E. McIntosh, since the year 1900, has been receiving most of the oil royalties derived from the Sybert lease is evidence of a ratification of the lease by estoppel. This is true also if the plaintiffs, or either of them, allowed their father, without objection, to use the royalties for their joint benefit. And if the jury so find, and also find that the plaintiffs knew their rights, the jury may find rati"(17) The fact that Edward McIntosh car-fication by estoppel and a verdict based thereried his father's receipts and selling orders to on in favor of defendant. Answer. The facts the pipe line office and received checks for them and, paid money over to his father is no element of estoppel, especially as Daniel set out in this point are not sufficient, in themselves, to work an estoppel, but may be considered in their relation to the other tes Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ. John M. Greer, Thomas H. Greer, and John B. Greer, for appellants. T. C. Campbell, P. W. Lowry, F. J. Forquer, W. Z. Murrin, and John Murrin, for appellee. ELKIN, J. The title to the tract of land which produced the oil, the subject-matter of the present controversy, was vested in Rosa McIntosh, mother of plaintiffs, at the time of her death. She died intestate in 1888, leaving to survive her a husband and three children. The husband went into possession of the farm as tenant by the curtesy, while the son and one daughter, appellants here, made their home with their father and continued to reside upon the premises as they had done in the lifetime of their mother. In 1895 Kenneth McIntosh, the father and life tenant, executed a lease for oil and gas products upon 20 acres of said tract, to all intents and purposes as if he were the owner there of. The original lessee, or his assigns, proceeded to drill and develop the tract for the production of oil. According to the terms of the lease one-eighth part of all the crude oil produced was set apart in the pipe line, running the same to the credit and for the benefit of the lessor. The lessee therefore contends that, having acted in good faith in the development of said property, and having paid the royalty agreed to be paid the lessor whom he believed to have the authority to execute said lease, he ought not to be required to again pay for the oil taken or damages done the premises, under the facts of the present case. The appellee took an assignment of the lease from Dierken in July, 1907, and this suit was instituted to recover damages from the time he took possession of and operated the wells under the lease. The defense relied on in the court below was that instituted must fall. What has been said as to Edward must not be understood as applicable to his sisters. As to the married sister who lived in the state of New York, nothing was proven to show that, during the time she had an interest as remainderman in the farm as an heir of her mother, anything was done by her either by way of acquiescence or encouragement to estop her from asserting her legal rights. Those who subsequently took her title stand in the same position in respect to her interest as she would have done if the title remained in her, unless since the acquisition of her interest those who took it did something which in contemplation of law would amount to an estoppel as to them, and this cannot be determined from the present record. As to the sister Addie, one of the appellants here, who remained at home on the farm, we are of opinion that the facts established at the trial are not sufficient to constitute an estoppel as to her. However, the present action cannot prevail, because, it being joint, and there being sufficient facts established to estop Edward, the right to a joint recovery being thus defeated, this action must fall. Judgment affirmed. (222 Pa. 612) MCINTOSH et al. v. DIERKEN. Where one of the parties plaintiff to a joint action fails to make out his cause, the right of a joint recovery is defeated. [Ed. Note.-For other cases, see Judgment, Cent. Dig. § 414; Dec. Dig. § 235.*] Appeal from Court of Common Pleas, Butler County. Action by Edward E. McIntosh and Addie McIntosh against Daniel Dierken. Judgment for defendant and plaintiffs appeal. Affirmed. Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ. John M. Greer, Thomas H. Greer, and John B. Greer, for appellants. T. C. Campbell, P. W. Lowry, F. J. Forquer, W. Z. Murrin, and John Murrin, for appellee. of an equitable estoppel, and this doctrine was very carefully explained by the learned trial judge in the charge to the jury. As to Edward McIntosh we have concluded that there was sufficient testimony to justify a finding that he had urged the taking of the lease in the first instance from his father; had encouraged the expenditure of money by the lessees in developing the lease; had worked on the lease at different times for several ELKIN, J. All that has been said at No. years; and had received checks made payable 59, October term, 1908 (McIntosh v. Ropp, 72 to his own order from October 26, 1900, to Atl. 230), applies generally to the present case. November 27, 1907, for the royalty due under This is also a joint action; and, if one of the the lease for oil run into the pipe line in the parties to such an action fails to make out a name of his father-and all of these things, case, or commits acts which estop him from if believed, are sufficient in law to constitute asserting his claim, the right to a joint recovan estoppel. The verdict of the jury leaves ery is defeated, and the action falls. Whether no room for doubt that this view of the facts this might have been cured by an amendment, prevailed. This being a joint action, there it is unnecessary to determine, for no such apmust be a joint recovery.. If Edward McIn-plication has been made. The learned countosh is estopped, the right to a joint recov- sel for appellants stand upon the legal rights ery is defeated, and the action as at present of the parties, and contend that neither Ed |