have not been active participants, or have not been privileged to become active participants. I cannot think, however, that that fact in any way introduces a new principle. It still leaves the controlling inquiry, as I think I stated it when the matter was first under consideration, whether or not, as a fact, the use which is in question is such a use as is primarily for the purpose of increasing the interest of the members of the organization, and conducive to that general purpose, or whether the use is simply a commercial use; and the affidavits now on file are positive and convincing to the effect that the single and primary purpose of the officers of the organization is to supply such amusements as are necessary to maintain the interest of the members, and that the amusements in question have been inaugurated and are being conducted to that end, and that the revenues derived by the admission fees which are charged are a matter of no concern further than to make revenues commensurate or, if possible, a little in excess of the expenses incident to the entertainments. It would be doing violence to the affidavits on file to make a finding of fact that any entertainment has been given in the armory building in question that has not had for its primary aim the stimulus of an interest on the part of the members of the organization itself, as distinguished from any purpose to make money. It may be that a bicycle track approaches near to, if it does not pass over. the boundary line between an appropriate and inappropriate use. A bicycle track necessarily occupies space that is primarily intended for drilling purposes; but the evidence is that the drilling floor was appropriated for the bicycle track at a time when drilling had been suspended for the summer season and when the floor was not needed for any other purpose, and that the track was removed before the part of the floor which had been occupied was needed for drilling purposes. I think the evidence is also of such a nature as to necessitate the finding that the presence of the bicycle track on the armory floor in no way injured the floor or other parts of the building.

(222 Pa. 371)

HARTJE v. HARTJE. (Supreme Court of Pennsylvania. Nov. 2, 1908.)

COURTS (§ 242*)-APPELLATE JURISDICTIONDECREE IN DIVORCE.

from a decree allowing counsel fees and alimony Under Act May 5, 1899 (P. L. 250) § 7, in divorce, appeal lies to the superior, and not the supreme, court.

[Ed. Note.-For other cases, see Courts, Dec. Dig. § 242.*]

Appeal from Court of Common Pleas, Allegheny County.

Action by Hartje against Hartje for divorce. From a decree allowing counsel fees and alimony, defendant appeals. Remitted to superior court.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

PER CURIAM. This is an appeal from de cree allowing counsel fees and alimony in divorce. The decree being for the payment of more than $1,500 would appear, prima facie, to come within the principle, if not the exact terms, of the decision in Prentice v. Hancock, 204 Pa. 128, 53 Atl. 763, and the appeal, therefore, would lie in this court. But the same act (May 5, 1899 [P. L. 248]) on which Prentice v. Hancock was based, in section 7 gives the superior court jurisdiction over "appeals in proceedings in divorce." The original proceeding in the court below was for divorce, and an appeal at any previous stage of it would certainly have lain to the superior court. The fact that this is a money decree does not prevent it from being still a part of the same proceeding. There is no real repugnance between the different sections of the act. Section 1(c), for purpose of jurisdiction in appeals, classifies all money judgments according to their amount, without reference to the nature of the action, while section 7 deals with proceedings in divorce as a special class, without reference to a possible money judgment which may be incident to the action. This being made a special class, the legislative intent is clear to take it out of the general classification in section 1 The appeal is remitted to the superior court.

(222 Pa. 356)

TY RY. CO.

(Supreme Court of Pennsylvania. Nov. 2, 1908.)

INJURY TO

1. STREET RAILROADS (§ 117*) CHILD-NEGLIGENCE OF MOTORMAN. Where a motorman sees a child running might bring her upon them, the danger to such parallel to the tracks, so that a step or two child is not so imminent as to excuse him for

or whether, notwithstanding the primary call upon his attention, he should have seen the smaller child in time to avoid it, was a question of fact which only a jury could answer.

NEGLIGENCE OF PARENT JURY.

Where the wife of a miner leaves a child 2 years old in charge of her daughter 10 years old while the husband is at work, the question of the parent's negligence, where the younger child is injured by a street car, is for the jury. [Ed. Note.-For other cases, see Negligence, Cent. Dig. 352; Dec. Dig. § 136.*]

Appeal from Court of Common Pleas, Westmoreland County.

Action by Loretta Davis, by her father, John E. Davis, and John E. Davis in his own right, against the Westmoreland County Railway Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

At the trial it appeared that on August 12, 1907, the mother of Loretta Davis left Loretta in charge of another daughter, 10 years old, and went on an errand. The father of the child, John E. Davis, was at the time at work in the mines where he was employed. During the absence of the parents Loretta was run over by an electric car, and seriously injured. There was evidence that, immediately before the accident, the motorman's attention had been diverted by a little girl running parallel with the tracks, and in some what dangerous vicinity to them.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

Wm. A. Stone, Jas. S. Beacom, David L. Newill, Stephen Stone, and Albert P. Meyer, for appellant. Chas. C. Crowell, Curtis H. Gregg, and Sidney J. Potts, for appellees.

PER CURIAM. When the larger child ran out of the house and along the tracks, the motorman's attention was naturally and properly directed to her. Though she was not on the tracks, she was running parallel to them, and so close that a step or two might bring her upon them at any instant. But the danger to her was not so imminent as to justify him, as a matter of law, in closing his eyes to other obstructions or risks in his path. He was bound to keep a general lookout in the performance of his duties.⚫

It is negligence in a traveler along the streets of a city not to keep a general lookout where he is going. This was the rule held in regard to a foot passenger in Robb v. Connellsville Boro., 137 Pa. 42, 20 Atl. 564, and Harris v. Commercial Ice Co., 153 Pa. 278, 25 Atl. 1133, and the same rule was applied to the driver of a vehicle in Graham v. Philadelphia, 19 Pa. Super. Ct. 292. This being the law in regard to negligence in an ordinary traveler, a fortiori applies to the motorman in charge of a car. Whether in this case he did

On the second question the negligence of the parents in allowing so young a child to be upon the street under the circumstances is equally clearly a question for the jury. Woeckner v. Erie Electric Motor Co., 182 Pa. 182, 37 Atl. 936; Jones v. United Traction Co., 201 Pa. 346, 50 Atl. 827. Judgment affirmed.

[Ed. Note.-For other cases, see Highways, Cent. Dig. 8 472; Dec. Dig. § 184.*] 2. HIGHWAYS (§ 184*) NEGLIGENCE.

RUNAWAY TEAM

When plaintiff passed a lane leading from defendant's house to a public road, he saw defendant's team standing in the lane. He drove slowly past, and when he got 200 feet down the road, he heard a warning to look out, and was struck by the runaway team, Held, that a nonsuit was properly entered.

Dec. Dig. § 184.*] [Ed. Note. For other cases, see Highways,

Appeal from Court of Common Pleas, Lawrence County.

Action by William H. Coller against Alexander G. Knox. From an order refusing to take off a nonsuit, plaintiff appeals. Affirmed.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

C. H. Akens, for appellant. J. Norman Martin and A. Martin Graham, for appellee.

PER CURIAM. There was no evidence of negligence on the part of defendant. The only testimony as to the facts of the occurrence was from the plaintiff himself, and was to the effect that, when he passed the lane leading from defendant's house to the public road, he saw the team of defendant standing in the lane, and a man standing at the head of the horses. He drove slowly past the end of the lane, and when he had gotten 180 or 200 feet down the road, he heard a warning to "look out," and immediately after was struck by the runaway team. In all this there is no evidence of negligence. The mere fact of a runaway does not by itself imply negligence, nor would even leaving a team standing in a private lane do so. But in this case the affirmative evidence is that when last seen, only a few moments before the collision, there was a man standing at the horses' heads. The cas

[Ed. Note. For other cases, see Boundaries, Cent. Dig. § 47; Dec. Dig. § 6.*]

Appeal from Court of Common Pleas, Forest County.

Action by the Enterprise Transit Company against T. D. Collins and others. Judgment for defendants, and plaintiff appeals. Affirmed.

The case turned upon the location of the southeastern line of warrant No. 5,270; the plaintiffs claiming the land in dispute under warrant No. 5,132 which was three days junior to No. 5,270. It was undisputed that the northern and western corners of No. 5,270 were well-marked trees, and that the northwestern line was fixed by these monuments. The return of survey called for a line from the northern corner south 45 degrees east, 320 rods, to a spruce. At the time of the trial the spruce had disappeared, and no living person could tell the place of its location. Warrant No. 5,270 was alleged by the plaintiffs to be one of a body of 100 warrants issued to George Mead and was returned as having four marked corners on the ground. The plaintiffs claimed to fix the location of the missing spruce by protracting other lines of adjacent warrants of the same block, and in so doing fixed the width of said warrant at 283.9, instead of 320, rods; the strip of 36.1 rods wide being the land in controversy. The defendants contended that the place of the spruce and the southeastern line of said warrant should be fixed by running the official courses and distances from the monuments found on the north and west, as long as no other marks were found to stop it short.

5,267 calls for 5,266, 5268 calls for 5.267, 5,269 calls for 5,268, and 5,270 calls for 5,269 as its adjoiner upon its northeast boundary, so that each of said warrants respectively is the leading warrant for the tract lying immediately as its adjoiner to the southwest. And in locating the southeastern line of said tier of Mead warrants, we must follow the footsteps of the surveyor in ascertaining the said line, and the monuments he marked or called for therein, as the landmarks of the several tracts mentioned of which it forms the southeastern boundary. Refused.

"Fourth. Warrant No. 5,267 is to be located from its undisputed monuments given in evidence in this case, to wit, the spruce for its northern corner, the spruce for its eastern corner, the white oak for its southern corner, and the white oak for its western corner. Refused.

"Fifth. Warrant No. 5,268 is to be located from its undisputed eastern, northern, and western monuments given in evidence in this case, to wit, the white oak for its eastern corner, the white oak for its northern corner, and the service berry for its western corner, and the location of its southern corner is to be determined by the intersection of the undisputed lines upon the ground leading southwest from the white oak eastern corner, and southeast from the service berry western corner their official courses, in Salmon creek at the reputed location of the black oak called for in the return of survey of said warrant No. 5,268. Refused.

"Sixth. Warrant No. 5,269, in the absence of other evidence of the place of the location of the spruce called for in its return of survey for its southern corner, is to be located

"This is an action of trespass brought by the Enterprise Transit Company, plaintiff, against T. D. Collins and others, defendants, to recover the value of timber alleged to have been cut and taken away from the plaintiff's lands which are described in the statement of claim. The answers to the points presented by counsel for the parties will determine whether or not the plaintiff has a right to recover, and we will now answer those points:

"Second. The principal question of location for the jury to determine in this case is the dividing line upon the ground between the plaintiff's warrant No. 5,132 and the defendants' warrant No. 5,270, and that is to be determined by ascertaining the true location upon the ground of the southeastern line of warrant No. 5,270. Affirmed.

"Third. The returns of survey of the several George Mead warrants Nos. 5,266, 5,267 5,268, 5,269, and 5,270 each calls for the warrant lying northeast of it respectively, that is to say, the return of survey of 5,266 calls

west line between the location of the spruce western corner and its service berry northern corner, and the location upon the ground of its eastern line between the location upon the ground of said service berry northern corner and the place fixed by the jury as the location of the black oak southern corner of No. 5,268, and the southern corner of No. 5,269 will be ascertained by protracting the southeastern line of No. 5,268 southwest parallel with the northwest line of 5,269, its official course, until it intersects a line running from the spruce western corner southeast parallel with its northeastern line, its official course, and the point of intersection of said lines will be the southern corner of said warrant No. 5,269. Refused.

"Seventh. Warrant No. 5,270 will be located in the same manner by ascertaining upon the ground the northwest line between its black oak western corner now standing, and the location of its spruce northern corner, and the location upon the ground of its northeast line between the location of its spruce north corner and the point ascertain