61 In Etna Ins. Co. v. Jackson, 16 B. Mon. 242, it was held that, "An agent or consignee having the principal's property in his possession, being responsible for it, and having a special interest in it to the amount of his commissions, may insure it in his own name, and, in case of loss, recover the full amount of his policy, holding all beyond his own interest in trust for his principal."

In Waring v. Indemnitg etc. Ins. Co., 45 N. Y. 606, 6 Am. Rep. 146, it was held that "Agents, commission merchants, or others having the custody of, and being responsible for, property, may insure in their own names, and they may, in their own names, recover from the insurer, not only a sum equal to their own interest in the property by reason of any lien for advances or charges, but the full amount named in the policy, up to the value of the property": See, also, Siter v. Morrs, 13 Pa. St. 218, and Home Ins. Co. v. Baltimore Warehouse Co., 93 U. S. 527.

Further citations are useless. We do not understand these principles to be controverted, and that they are directly applicable to the policy which is the subject of the present controversy cannot be doubted.

Judgment affirmed.

INSURANCE-INSURABLE INTEREST OF TRUSTEE: See the extended note to Strong v. Manufacturers' Ins. Co., 20 Am. Dec. 515.

INSURANCE INSURABLE INTEREST OF AGENTS. - Agents, commission merchants, or others having the custody and being responsible for property may recover from the insurer not only a sum equal to their own interest in the property by reason of any lien for advances or charges, but the full amount named in the policy up to the value of the property: Western etc. Pipe Lines v. Home Ins. Co., 145 Pa. St. 346; 27 Am. St. Rep. 703, and note. See, also, the note to Riggs v. Commercial etc. Ins. Co., 21 Am. St. Rep. 720.

LEDERMAN V. PENNSYLVANIA RAILROAD COMPANY.

[165 PENNSYLVANIA STATE, 118.]

NEGLIGENCE WHEN QUESTION FOR JURY.-In an action against a railway company to recover damages for the death of a young child at a crossing, the evidence showing that the accident occurred in a populous district, at the intersection of the railway with three streets, that there was an absence of safety gates, that the crossing was guarded only by an elderly watchman, and that the cars were going at a rate of speed, variously estimated by witnesses to have been from four to ten miles an hour at the time of the accident, the question of negligence, both on the part of the railway company and on the part of the mother of the

child in permitting it to go upon the street unattended, is for the jury to determine.

NEGLIGENCE-EVIDENCE-PRECAUTIONS TAKEN SOON AFTER ACCIDENT.

In an action against a railroad company for damages for an injury caused by its negligence at a crossing, evidence that very soon after the accident the company erected gates at such crossing is a fact proper for the consideration of the jury. NEGLIGENCE-EVIDENCE-SPEED OF TRAINS.-In an action against a rail. road company to recover damages for an injury caused by its negligence at a crossing, a witness who was more than five hundred feet away from the place of the accident, and not in sight of the crossing, is not competent to testify as to the speed of the train at the time of its reaching such crossing. NEGLIGENCE EVIDENCE OF SPEED OF TRAIN.-In an action against a railroad company to recover for an injury caused by its negligence at a crossing, an ordinance limiting the speed of trains is admissible to show that the train causing the injury was being run at a negligently high rate of speed.

TRESPASS for the death of a child. Judgment for plaintiff for eighteen hundred dollars. Defendant appealed.

H. M. and E. D. North, for the appellant.

W. U. Hensel and J. H. Brown, for the appellee.

124 MCCOLLUM, J. About a half a mile from Lancaster station two cars were detached from the seashore express in order to allow the Philadelphia coach of the Columbia train to be connected with it ahead of them. From the point of severance to the station there was a descending grade, and the railway tracks crossed three streets diagonally. When the detached cars were between Lemon and Walnut streets the brake was "thrown off to get a little more momentum and headway," and at the crossing of the latter they ran over and killed the plaintiff's child. There were no gates at this crossing, but there was an old man there whose duty it was to watch two crossings, and see that persons walking or driving on Prince street or Walnut street did not get in the way of the trains. The evidence in regard to the speed of the cars at the point where the accident occurred was conflicting, some of the witnesses estimating it at ten and others at four miles an hour. The crossings watched as above stated were in a populous district of the city, and there was a large amount of travel over them. No signal announced the approach of the cars to the crossing unless the waving of the watchman's flag can be regarded as such. In the presence of the undisputed facts and the conflicting testimony to which we have referred, the defendant company requests us to say

there was no negligence on its part in connection with the occurrence under investigation. This we cannot do. In view of the great age and consequent infirmity of the watchman there is room for doubt respecting his fitness for the duty with which he was charged. But waiving this, and assuming that he was competent for the work assigned to him, did the company make adequate provision for, and have due regard to the safety of, persons walking or driving upon the streets in the vicinity of these crossings? As we have already seen, the crossings were in a populous district, and there was necessarily considerable travel over them on foot and in vehicles. Can a solitary watchman stationed on a corner bounded by the railway tracks and the intersected streets properly warn persons traveling upon these streets of the approach of a train? To do so he must wave his flag where all persons approaching the crossings can see it, and he must be careful to note that the little box or house on his corner does not obstruct the view 125 from any direction. Ought the company to have maintained gates at these crossings? Ought it to have allowed the detached cars to descend upon them at the rate of ten miles an hour with "the brake thrown off to get a little more momentum and headway?" These were questions to be answered by the jury upon the evidence, and therefore the learned court below did not err in refusing to affirm the company's third point.

The latter, however, contends that it has a defense to the action in the negligence of the plaintiff in permitting the child to go upon the streets alone in the manner described in the testimony. But this contention also presented, in our opinion, a question for the jury, to whom it was referred in appropriate instructions. It is for them, and not for the learned court below, or for us, to say whether the implied permission given by the mother to the child to go to a near neighbor's on the same street, to help his playmate sell "shooting crackers" from a stand erected at his own home, constituted negligence which satisfied the company's contention on this point: Philadelphia etc. R. R. Co. v. Long, 75 Pa. St. 257; Dunseath v. Pittsburg etc. Traction Co., 161 Pa. St. 124.

We discover nothing in the rulings upon offers of evidence which calls for a reversal of the judgment. That the company very soon after the accident erected gates at the crossing where it occurred was a fact for the consideration of the jury: Pennsylvania R. R. Co. v. Henderson, 51 Pa. St. 315;

Westchester etc. R. R. Co. v. McElwee, 67 Pa. St. 311; McKee v. Bidwell, 74 Pa. St. 218. The evidence was particularly pertinent in this case because the jury had been upon the ground, and had seen the gates there. To rebut an inference that the gates were there at the time of the accident it was proper to inform them when they were erected.

Ample opportunity was afforded the company to show the speed of the cars near to and at the crossing. John Keneagy was five hundred feet west of Lemon street, and did not see the cars after they crossed it. He was not very well qualified to speak of their speed after "the brakes were thrown off," and they were nearing the point where the accident occurred.

We are not convinced that the court erred in overruling the objections to and admitting the ordinance in relation to the speed of railway trains within the city limits, or in the instructions 126 to the jury respecting the consideration they should give to it in connection with the other evidence in the case: Pennsylvania R. R. Co. v. Lewis, 79 Pa. St. 33; Lane v. Atlantic Works, 111 Mass. 136.

Judgment affirmed.

NEGLIGENCE-WHEN A QUESTION FOR THE JURY.-Negligence is usually a mixed question of law and fact, and is never one purely of law unless the facts are wholly undisputed, and admit of no conflicting inferences: Isham v. Post, 141 N. Y. 100; 38 Am. St. Rep. 766, and note. If there is reasonable doubt as to the facts or the inferences to be drawn from them, the question of negligence is solely for the jury to determine: Vannatta v. Central R. R. Co., 154 Pa. St. 262; 35 Am. St. Rep. 823, and note.

NEGLIGENCE-EVIDENCE OF PRECAUTIONS TAKEN AFTER ACCIDENT.-Evi. dence of precautions taken after an accident is not admissible to show neg. ligence: Bloomington v. Legg, 151 Ill. 9; 42 Am St. Rep. 216, and note. Evidence is admissible in an action against a railway company for damages for personal injuries to show that after the accident the engines of the com. pany ran more slowly at the place of the accident than they did previously: Savannah etc. Ry. Co. v. Flannagan, 82 Ga. 579; 14 Am. St. Rep. 183. Sce, further, the extended note to St. Louis etc. Ry. Co. v. Weaver, 57 Am. Rep. 183.

RAILROADS. EVIDENCE OF EXCESSIVE SPEED AT CROSSINGS: See Meloy . Chicago etc. Ry. Co., 77 Iowa, 743; 14 Am. St. Rep. 325; Savannah etc. Ry. Co. v. Flannagan, 82 Ga. 579; 14 Am. St. Rep. 183. Also the notes to Dyson v. New York etc. R. R. Co., 14 Am. St. Rep. 87, and Evansville etc. B. R. Co. v. Crist, 9 Am. St. Rep. 874.

PAUL V. GRIMM.

[165 PENNSYLVANIA STATE, 139.]

AGENCY-LIABILITY OF AGENT FOR PAYMENT RECEIVED OTHERWISE THAN IN MONEY.-An attorney in fact with power to sell land "for such price and on such terms as to him shall seem meet," has no authority to accept as payment the worthless bonds of an insolvent corporation, and, if he sells the land, and accepts such bonds or any thing besides money in payment, he is liable to his principal in assumpsit for the price of the land in lawful money.

J. F. Wentling, D. A. Miller, and E. B. McCormick, for the appellants.

V. E. Williams, A. M. Sloan, and W. F. Griffith, for the appellee.

146 GREEN, J. In 2 Benjamin on Sales, section 1099, note 26, it is thus stated: "Payment to an agent must be in money. This is the general principle in the absence of express authority to the agent to receive something else than money," citing a large number of cases.

In the case of Catterall v. Hindle, L. R. 1 Com. P. 186, Keating, J., delivering the opinion, said "That a broker or agent employed to sell has, prima facie, no authority to receive payment otherwise than in money, according to the usual course of business, has been well established, and it seems equally clear that if, instead of paying money, the debtor writes off a debt due to him from the agent, such a transaction is not payment 147 as against the principal, who is no party to the agreement, though it may have been agreed to by the agent": Citing several cases.

In Underwood v. Nicholls, 17 Com. B. 239, the facts were that A, as agent for B, sold wine to C, who paid for it by returning to A his own check which C had cashed for him a few days previously, and which, it appeared, had never been presented by C. Held, That this was not, as between B and C, payment of C's debt, although the jury found that the transaction was bona fide. Wells, J., said: “Prima facie, an agent should receive debts for his principal in money. A payment by a check the jury would no doubt find to be a payment in the ordinary course of business. The transaction here merely amounts to the giving back of the agent's check which in his hands was a piece of waste paper."

In McCulloch v. McKee, 16 Pa. St. 289, we held that an agent having authority only to collect a debt has no right to