he must keep such a lookout on the tracks | street railway companies and their employés ahead of him, and must keep his car under on the one hand, and of ordinary travelers such control, as to be able to reduce its speed, and even to bring it to a standstill if necessary, to avoid collision with a traveler who, without negligence on his part, might happen to cross the tracks in front of the trolley car. Plaintiff had a right to assume that the motorman was aware that if plaintiff, without negligence on his part, reached the point of crossing ahead of the trolley car, he had the right of way, and that such right of way would be respected by the motorman. In short, plaintiff might reasonably assume that the motorman would keep a lookout, and would control and reduce the speed of the car, until plaintiff was charged, or at least until a reasonably prudent person in his position would have been charged with notice that the car was being operated either in ignorance of his presence or in complete defiance of his rights. using the highway, on the other, have so often been under consideration in this court and in the Supreme Court as to require no further elaboration at present. Orange & Newark Horse R. R. Co. v. Ward, 47 N. J. Law, 560, 563, 4 Atl. 331; Newark Pass. Ry. Co. v. Block, 55 N. J. Law, 605, 610, 611, 613, 27 Atl. 1067, 22 L. R. A. 374; Consolidated Traction Co. v. Lambertson, 59 N. J. Law, 297, 299, 36 Atl. 100, affirmed 60 N. J. Law, 452, 38 Atl. 683; Electric Ry. Co. v. Miller, 59 N. J. Law, 423, 36 Atl. 885, 39 Atl. 645; Consolidated Traction Co. v. Glynn, 59 N. J. Law, 432, 37 Atl. 66; Atlantic Coast Electric R. R. Co. v. Rennard, 62 N. J. Law, 773, 775, 777, 778, 42 Atl. 1041; Searles v. Elizabeth, etc., Ry. Co., 70 N. J. Law, 388, 391, 57 Atl. 134; Conrad v. Elizabeth, etc., Ry. Co., 70 N. J. Law, 676, 58 Atl. 376; Bauer v. North Jersey St. Ry. Co., 74 N. J. Law, 624, 65 Atl. 1037; Migaus v. Jersey City, etc., Ry. Co., 76 N. J. Law, 535, 70 Atl. 168; Joerg v. Public Service Ry. Co., 77 N. J. Law, 372, 71 Atl. '1126; Zindler v. Public Service Ry. Co., 78 N. J. Law, 536, 74 Atl. 478. Now, it does not seem to us at all clear, from the fact that the plaintiff, when about 15 or 20 feet from the crossing and approaching it with his horse walking, saw the trolley car coming at a distance of 50 or 75 yards, and operated at an unduly high rate of speed, that the plaintiff was at that time indisputably charged with notice that that rate of speed would be continued, or that the trolley car would be so far uncontrolled as to collide with his wagon while he was proceeding over the crossing. Nor is it clear that he was charged with such notice at any time before he had entered upon the crossing. Just how close the car had approached before plaintiff actually drove upon the track was open to question upon the evidence. That it was still at a considerable distance might fairly be inferred, among other reasons, because, although plaintiff's horses were walking, he almost succeeded (according to one view of the evidence) in safely crossing; the car striking only the rear wheel of his wagon. Assuming the car was still at a considerable distance when plaintiff drove upon the track, how was he then clearly charged with notice that the car would probably collide with him, either because of the motorman's negligence, or disregard of his rights, or for any other reason? The jury might infer that at this juncture the plaintiff, being so nearly in the path of the approaching car, could not ac-er or not it must necessarily be inferred curately estimate its rate of speed, and from Lambertson's statement that the car might readily misjudge the extent to which its speed was being retarded by the brake. (The motorman testified that he applied the air brake, but that the track was greasy, and the car slid upon it.) And whether, after plaintiff had actually driven upon the track, he could make any further effective observation of the car, or could prudently attempt to do so, in view of the attention he must needs give to his horses-these were questions for the jury to determine. In Consolidated Traction Co. v. Lambertson, 59 N. J. Law, 297, 36 Atl. 100, the facts were that Lambertson was driving in a public street on which defendant's trolley cars ran, and turned his horse to cross one of the company's tracks, although he saw a car coming toward him "as fast as it could" upon that track; the car being, when he started to cross, about 300 feet away. Although he had but a short distance to traverse, and his horse was going on a little trot, the car struck his wagon between the front and hind wheels. Mr. Justice Magie (afterwards chancellor) employed the following well-considered language: "The rights of Lambertson and the traction company to use the street for the passage of their respective vehicles were exactly the same with a single exception. Because the cars of the company cannot deviate from the tracks, other vehicles must give way to them when there is occasion for them to pass. Lambertson nor the company could drive their vehicles at a rate of speed incompatible with the safe and customary use of it by other vehicles or by foot passengers. Wheth But neither was moving 'as fast as it could,' that he must have known it was being run in an illegal manner may perhaps be doubted. But, assuming such an inference must be drawn, it does not necessarily follow that he should have concluded that the car would continue to be driven in the same way. He who puts himself in the way of runaway horses who have escaped from the driver's control must know that he is taking a risk. But a jury may well say that he who crosses in front may assume that it is furnished with the means of stopping or reducing speed. Then there was a question for the jury in this case whether a prudent man, upon such an assumption, might not judge it safe to cross in front of a trolley car 300 feet away, although coming at great and illegal speed. Upon the assumption of the existence of means to reduce speed and to stop, and of a servant employed to make use of such means, it would be absurd to say that one was bound to refrain from crossing for fear the servant would not make use of the means." The decision of the Supreme Court in that case was affirmed in this court, with tacit approval of this reasoning. 60 N. J. Law, 452, 38 Atl. 683. In Electric Ry. Co. v. Miller, 59 N. J. Law, 423, 425, 36 Atl. 885, 39 Atl. 645, this court laid down the rule that the driver of the wagon has the right of way if, proceeding at a rate of speed which under the circumstances of the time and locality is reasonable, he should reach the point of crossing in time to go upon the tracks in advance of the approaching trolley car; the latter being sufficiently distant to be checked and, if need be, stopped before it should reach him. In the case now before us, the Supreme Court cited as the sole authority for its decision Schwanewede v. North Hudson Ry. Co., 67 N. J. Law, 449, 51 Atl. 696, where the same court laid down the rule that, "if it appears that the trolley car motorman is not going to respect your rights to cross the street first, you must wait, or you are guilty of contributory negligence if hurt." For this proposition the court relied upon the decision of this court in Earle v. Consolidated Traction Co., 64 N. J. Law, 573, 46 Atl. 613. But this case was decided by an equally divided court, and so is not to be taken as an authority. What was said by Mr. Justice Van Syckel, who spoke for one-half the court, is to the effect that the trolley car and the plaintiff (who was driving a horse) had equal rights upon the streets and upon the crossings, and the first to reach the crossing had the right to pass over it first; that assuming the plaintiff reached the crossing in advance of the car, yet, if it then was apparent that his rights were not being observed by the motorman, he could not proceed without imprudence, and was bound to stop or to turn aside if he could by the exercise of due care do so, and protect himself from injury. We are not concerned with the question whether this is a correct statement of the driver's duty under the circumstances noted, for in the present case there was, as already shown, a question for the jury whether the plaintiff on reaching the crossing was charged with notice that the motorman had failed to observe him or was operating the car in defiance of his rights. wede Case is West Jersey R. R. Co. v. Ewan, 55 N. J. Law, 574, 576, 27 Atl. 1064. But that was a collision at the crossing of a steam railroad, and is quite inapplicable to the case of a crossing of street railway tracks laid in a highway and forming a part of it. The judgment of the Supreme Court should be reversed, and the judgment of the district court affirmed, with costs. (78 N. J. E. 427) RENNEBAUM et al. v. RENNEBAUM. 1. DEEDS (§ 54*) -DELIVERY-NECESSITY. [Ed. Note. For other cases, see Deeds, Cent. A deed is inoperative until accepted by the grantee. [Ed. Note. For other cases, see Deeds, Cent. Dig. §§ 142, 143; Dec. Dig. § 64.*] 3. DEEDS (§ 56*) -DELIVERY-INTENT. tent. The delivery of a deed is a matter of in[Ed. Note. For other cases, see Deeds, Cent. Dig. § 118: Dec. Dig. § 56.*] 4. DEEDS (§ 65*) -ACCEPTANCE-INTENT. The acceptance of a deed depends upon the grantee's intent. [Ed. Note. For other cases, see Deeds, Cent. Dig. § 144; Dec. Dig. § 65.*] 5. DEEDS (§ 194*)-DELIVERY-EVIDENCE. The delivery of a deed may be inferred from the grantee's possession thereof, but such inference is rebuttable by evidence. [Ed. Note. For other cases, see Deeds, Cent. Dig. § 577; Dec. Dig. § 194.*] 6. DEEDS (§ 194*) -ACCEPTANCE-EVIDENCEPRESUMPTIONS. The acceptance of a deed may in some cases be inferred from the probability that the grantee accepted that which was favorable to him; but such inference is rebuttable. [Ed. Note. For other cases, see Deeds, Cent. Dig. § 579; Dec. Dig. § 194.*] 7. DEEDS (§ 208*)-EVIDENCE-SUFFICIENCY ACCEPTANCE. Evidence held not to show an acceptance by the grantee of a deed executed by her husband. [Ed. Note. For other cases, see Deeds, Cent. Dig. § 631; Dec. Dig. § 208.*] 8. DEEDS (§ 208*)-EVIDENCE. Evidence held to show that neither the grantor nor grantee intended that a deed be [Ed. Note. For other cases, see Deeds, Cent. Suit by Charles F. Rennebaum and others against Katherine Nebal Rennebaum to set aside a deed. Decree for complainants. John Boyd Avis, for complainants. Carrow & Kraft, for defendant. LEAMING, V. C. The single question here involved is whether the deed in controversy The only other case cited in the Schwane- | became operative as a conveyance in the lifetime of defendant's husband, or whether he died seised of the premises described in the deed. A deed of conveyance is inoperative, unless and until it is delivered by the grantor and accepted by the grantee. Both the delivery and acceptance are matters of intent, and the intent may be manifested in many ways; but both are essential requisites to the transmission of title. Both may be presumed; delivery may be inferred from the possession of the deed by the grantee; acceptance may in some cases be inferred merely because of the probability of acceptance by a grantee of that which is in his favor; but these presumptions, like other inconclusive presumptions, may be overcome by evidence. An acceptance cannot be inferred when the evidence clearly discloses that there was in fact no acceptance; and the same rule obtains touching delivery. In the present case I am unable to reach the conclusion that the deed in question was ever delivered to defendant by her husband. A consideration of all the testimony and the circumstances surrounding the case impels me to the belief that the deed in question was originally executed by defendant's husband by reason of an anticipated action at law against him, for the purpose of enabling him to cover up his property in case the action should be brought, and that, no action having been brought against him, the deed was never used. The statement of defendant to the effect that, some two weeks after her marriage, the deed was tossed to her by her husband, does not convey to my mind the belief that the husband ever intended to render the deed presently operative as a conveyance to his wife. it cannot be said that she intended an acceptance of it. Her motive may have been that stated by her on the witness stand, to the effect that she considered it indelicate to record the deed unless further urged by her husband, or it may have been that stated by her to the three witnesses referred to-i. e., that she would not accept it on account of the children, thinking it unfair to them. But, if her testimony is to be accepted, the conclusion is inevitable that for one or both of the reasons named she determined not to accept the deed. By returning the deed to her husband's papers and not recording it, she purposed not to accept it, and fully believed that by her conduct she had declined to accept it. Under such circumstances an acceptance cannot be presumed, for there can be no acceptance of a deed against the will of the grantee. I am fully convinced that the deed in question was never intended by either of the parties to it to be presently operative as a conveyance. That neither of the parties so regarded it seems entirely manifest. Defendant has testified that she did not so regard it. The deed was at no time removed from the grantor's control. No change in the operation or management of the property occurred. Defendant's husband continued to pay all charges and taxes as before, and at his decease defendant had wholly forgotten the transaction. It is also admitted that the insurance policies on the dwelling were not transferred, or new insurance taken in the name of defendant. To now treat the deed as a conveyance delivered and accepted, and as having been operative to transfer the title to defendant from her husband, is to give to the instrument a force and effect which I am fully convinced neither of the parties to the instrument at any time intended. I am obliged to advise a decree pursuant (81 N. J. L. 460) DIECKMAN v. DELAWARE, L. & W. R. CO. (Court of Errors and Appeals of New Jersey. March 8, 1911.) But, assuming that I may be mistaken in this, it seems impossible to escape the conclusion that defendant did not accept the deed. Should the utmost confidence be extended to the testimony of defendant to the effect that some two weeks after her mar- to the prayer of the bill. riage her husband tossed to her the deed in question and urged her to record it, it cannot be doubted that after her husband died, and before she found the deed, she said to Charles F. Rennebaum and John W. McClure and Melvin A. Sickler that she could have had a deed for the property at one time, but would not accept it on account of the children of her husband, as she did not think it right for her to do so. Defendant's testimony was also to the effect that when the deed was handed to her by her husband, and she was by him told to record it, she fully believed that the deed was void, unless recorded, and, so believing, she at once put the deed back among her husband's papers and determined not to record it, unless further urged by her husband to do so. If she determined not to record the deed, believing that not to record it was to render it void, (Syllabus by the Court.) RAILROADS (§ 359*)-INJURIES TO PERSONS ON A railroad was built upon an embankment and crossed Stuyvesant avenue by a bridge. The station of the railroad is situated east of the railroad and near the avenue. To this station a stairway ran from the street. On the opposite side of the railroad a path started from the avenue, which had been worn by the feet of persons passing from the street diagonally up the railway embankment to the west side of the road. Along this side of the railroad, along the top of the embankment, the company had built a fence extending from the avenue to a point beyond the line of the railroad station on the opposite side. Persons us-crossed the railroad to the station. Mr. ing the path up the embankment had been ac- Dieckman, the deceased, on the morning of customed to pass the end of this fence and turn in on the two railroad tracks and cross to the March 2, 1909, started to take a train at this station. In front of the station the ground station and used the mentioned path up the was level to permit passengers to reach the cars upon the two tracks. There was nothing to indicate a pathway across the tracks from the westerly side. The plaintiff's intestate passed up the path around the end of the fence and started to cross the tracks to the station, when he was struck by a train and killed. Held, that the railroad company was not liable, as the injured person was on the tracks without invitation. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1238, 1239; Dec. Dig. § 359.*] Vroom, J., dissenting. Error to Supreme Court. Action by Mary Anna Dieckman, administratrix of Edward Dieckman, against the Delaware, Lackawanna & Western Railroad Company. Judgment of nonsuit, and plaintiff brings error. Affirmed. Arthur Lovell, for plaintiff in error. Μ. M. Stallman, for defendant in error. REED, J. The plaintiff brought this action as the administratrix of Edward Dieckman, who was killed while crossing the tracks of the Delaware, Lackawanna & Western Railroad Company at Lyndhurst Station, on March 2, 1909. There are two tracks running upon an embankment and crossing Stuyvesant avenue above grade. The station near Stuyvesant avenue is upon the north side of these two tracks. From Stuyvesant avenue a stairway leads up to the railway station and platform on the top of the embankment. The platform extends from the station building out to the northbound railway track, and between the northbound track and the south-bound track the space is level with crushed stones so that embankment to the end of the fence and then proceeded to cross the tracks to the station. It was a misty morning. The deceased was holding an umbrella in front of him, and before he had cleared the tracks he was struck by an express train and killed. At the close of the plaintiff's case the trial judge directed a nonsuit. The plaintiff in error insists that this direction was error. The insistence is that there was evidence from which a jury might have drawn the conclusion that the deceased was crossing the tracks by the invitation of the defendant and while so crossing was negligently run down by one of defendant's trains. If it be true that there was a question whether the railroad had invited the deceased to use its tracks as a crossing, there was clearly a case for the jury. The nonsuit must rest upon the proposition that there were no facts which could be construed as an invitation to the deceased to use the company's tracks for the purpose for which he was using them. The path which led up to the tracks was not made by the railroad, but was worn by the feet of those who traveled along its line. Nor was it kept in repair by the company. It did not lead to a point opposite the station. The ability to cross the tracks directly from the west side to the station was destroyed by the fence erected by the railroad company. When the end of the fence was reached, there was no indication of a path by the use of crushed stone or otherwise from the west side across the tracks to the station. There was no physical indication that the public was invited to cross the dan persons can reach either track from the sta-gerous interval between the mail crane and tion. On the westerly side of the railroad the station. In the case of D., L. & W. R. R. Co. v. Trautwein, 52 N. J. Law, 175, 19 Atl. 178, 7 L. R. A. 435, 19 Am. St. Rep. 442, the raiiroad was held to be liable for an injury to a lady who, on leaving a train at night on her way to a stairway leading to the street, fell over some timbers while crossing the railway tracks. The stairway was one built by private persons for their use in reaching the station. But from the top of this stairway to the railway station there was a gravel walk, and the employés of the railroad company testified that the passage was kept free, opened, and unobstructed. It was apparently a way provided as a means of access to and from the depot grounds of the company. tracks there is no station building, no platform, and no facility for a person to reach a train on either track. On that side of the railroad there runs a fence along the top of the embankment from Stuyvesant Avenue Bridge a distance of 100 feet to where a mail catcher was placed. This fence extended along the westerly side of railroad to a point not opposite the station of the easterly side of the railroad, but to a point beyond. At the bottom of the embankment on the west of the railroad there is a coalyard inclosed by a fence which runs along the foot of the bank. From the point where the coalyard fence reaches the sidewalk on Stuyvesant avenue there ran a path diagonally up the embankment to the mail crane. Persons living to the west of the railroad often, instead of crossing under the railroad on Stuyvesant avenue and climbing the stairway to the station, used this beaten path up the bank to the end of the fence and thence on the south side of the railroad. On the In Devoe v. N. Y., O. & W. Ry. Co., 63 N. J. Law, 276, 43 Atl. 899, the plaintiff's intestate was killed while crossing the tracks of the company. The passenger station was northerly side was a road which adjoined the property of the railroad company. A fence divided the road from the railroad grounds, but for several years a stile built by private persons existed by which persons could get over the fence into the depot grounds and so reach the station. This stile was built without the consent of the railroad, but people crossed there all the time to go to the station to take trains and to pass to and from another road. The deceased was going to school and crossed the stile, and on her way across the defendant's tracks, just before she reached the platform of the passenger station, she was struck by a train and killed. There was no visible or beaten track across the company's grounds. It was held that there was no invitation to use the company's grounds. These cases are concrete illustrations of conditions which will and which will not amount to invitations by a railroad company to persons to enter upon the perilous property of the company. In the present case we think there was nothing to indicate an invitation to the deceased to cross the tracks of the defendant. Nor did the fact that such crossings by persons had theretofore been observed by the agents of the company without complaint or remonstrance involve any liability. A mere passive acquiescence by an owner in a certain use of his land by others involves no liability. Sweeny v. Old Colony & Newport Railroad Co., 10 Allen (Mass.) 368, 87 Am. Dec. 644; Furey v. N. Y. C. & H. R. R. R. Co., 67 N. J. Law, 270-274, 51 Atl. 505. The fact that the conductor of a train on some occasions held his train for persons coming up the path was no more than a passive recognition of the use of the path by persons wishing to take trains. The judgment of nonsuit should be affirmed. VROOM, J., dissenting. (80 N. J. L. 557) LEEDS v. ATLANTIC CITY et al. (Supreme Court of New Jersey. March 31, 1911.) (Syllabus by the Court.) INTOXICATING LIQUORS (§ 102*) - LICENSES RENEWAL - STATUTORY PROVISIONS-"NEW INNS." The provisions of the act of 1891 (P. L. 1891, p. 311) relating to the renewal of licenses to keep an inn or tavern and places to sell spirituous liquors in cities of the fourth class, upon filing an application signed by the applicant, applies only to the licensing of places which had been already licensed when the act of 1891 was approved. [Ed. Note. For other cases, see Intoxicating Liquors, Dec. Dig. § 102.*] Certiorari by Henry W. Leeds against Atlantic City and another to review the re newal of a liquor license. Renewal vacated. Argued November term, 1909, before REED, BERGEN, and MINTURN, JJ. Thompson & Cole, for prosecutor. Harry Wootten, for Atlantic City. Perry & Stokes, for William Altreuter. REED, J. This writ brings up a renewed license to sell spirituous, vinous, and malt and all intoxicating liquors at the Manhattan Cafe, 134 South Carolina avenue, Atlantic City. The application for this license was for a renewal of a license granted June 15, 1908, upon the recommendation of 12 resident reputable freeholders. The license now in question was granted as a renewal upon the application of the prosecutor alone. The authority relied upon for the right to renew the license of 1908 is the act of 1891 (P. L. 311). This act provides that: "After a license has once been granted to keep an inn or tavern, or a license to sell ale, beer, wine, or a license to keep a victualling house with the privilege of retailing spirituous liquors, - that the filing of a petition for a renewal, signed by the applicant, shall confer power upon the licensing board to renew the license for one year." This legislation is confined by the act to cities of the fourth class. The efficacy of this statute as authority for the renewal of the present license is attacked upon several grounds. One of the grounds of attack is that the act of 1891 by a proviso contained therein excludes the power of renewal therein granted for license to keep inns and taverns, saloons, victualling houses with power to sell spirituous liquors in all instances where the licensed place was first licensed after the adoption of the statute. The body of the statute provides that "hereafter in cities of the fourth class, that afer a license has once been granted to keep an inn or tavern, or a license to sell ale, beer and wine, or a license to keep a victualling house with the privilege of retailing spirituous liquors to any person or persons at any place in such license designated according to the terms of the charter of such city as they now exist, it shall not be requisite in order to give the licensing body jurisdiction to grant renewals of such licenses, that a new application recommended by freeholders shall be first signed and presented to such board; that an application by the applicant with a new bond shall confer power upon the board to renew such license for the term of one year." Then follow two provisos: "First, that the freeholders who may have recommended the former application shall not be eligible as signers for any new application for the ter Certiorari to Court of Common Pleas, At- of one year from the granting of such relantic County. newal; second, that this act shall in no wise |