27 A. 689 (Pa. 1893), 280, Fredericks v. Northern Central R. Co.
| Judge | Before STERRETT, C.J., GREEN, McCOLLUM, MITCHELL and DEAN, JJ. STERRETT |
| Parties | Fredericks, Appellant, v. Northern Central R.R |
| Citation | 27 A. 689,157 Pa. 103 |
| Docket Number | 280 |
| Court | Pennsylvania Supreme Court |
| Date | 02 October 1893 |
Page 689
Argued: March 31, 1893
Appeal, No. 280, Jan. T., 1893, by plaintiff, Joseph A. Fredericks, from judgment of C.P. No. 4, Phila. Co., Sept. T., 1889, No. 305, on verdict for defendant.
Trespass for personal injuries. Before ARNOLD, J.
At the trial, it appeared that on July 17, 1889, plaintiff was a passenger on defendant's train from Hickory Swamp Colliery to Shamokin. When near Shamokin two loaded coal cars that had run away from a siding and come out on to the main track dashed into the passenger train. It appeared that the coal cars had been left on the side track at a distance of about two miles from the place of collision, about ten o'clock in the morning. Between the place where the cars were left standing and the main line there were two throw-off switches. The upper switch was left open, but the lower switch was closed. Neither of the switches was provided with locks. The cars were properly braked, and remained in this condition during the day. Late in the afternoon a boy got upon the cars, loosed the brakes by hammering them with a coupling pin, and closed the throw-off switch. The cars then ran down the siding on to the main line, and caused the accident in which plaintiff was injured.
The court charged as follows:
"It appears that on July 17th, 1889, the plaintiff was a passenger on a train of that railroad company in Northumberland county, when a collision took place, and, in the effort which he was making to escape before the collision took place, it seems that he was hurt, from the effects of which he has suffered bodily pain and injury. He charges that the injuries which he received were caused by the negligence of the defendant company.
"Negligence is the same as carelessness. It means the failure to do that which should have been done or leaving undone something which should have been done. In order therefore to justify you in finding a verdict for the plaintiff you will have to find that the injuries were caused by the negligence or carelessness of the defendants, because if there is no such carelessness or negligence shown, then the company is not responsible. The company is not responsible simply because a passenger or other person gets hurt. It is responsible only when an injury is caused by its neglect, and you are to find in this case, if you can from the testimony, that the company was negligent or careless.
"Where a passenger is riding in the proper place in a train and is hurt by a collision, as in this case, there is a presumption of negligence or carelessness against the company, which presumption the company must remove by showing that it was not careless, and that the accident or collision, or whatever caused the injury, is not attributable to it, the company.
The defendant alleges that this accident was caused not by any carelessness of it or its employees, but by the deliberate, malicious, and criminal act of certain boys. It appears that the plaintiff was in a passenger train going along the road of the company; there was a branch road belonging to the Philadelphia and Reading Railroad Company, which was jointly used by it and the Northern Central Railway Company, and that this defendant, the Northern Central Railway Company, on the morning of the accident side-tracked a draught of cars on this branch or siding some two miles from the place of the accident; that the place where these cars were left was on a declining grade, that is, declining towards the main line of the road. It has been testified here and not contradicted, but it is for you to say, however, whether you believe the testimony of the witnesses, that they braked that train of coal cars. I believe two or three witnesses swore that the first car was braked on both ends, the next car was braked on one end, and one witness this morning testified that he braked the empty cars. It is manifest from the sequel that the empty cars were braked, because they remained on the track, while the loaded cars were the runaways which caused the injuries. It has also been testified by several witnesses, those who did the act and others who saw it after it was done, that a certain throw-off switch was left open, so that, if by any means this train could have got loose from its moorings, it could not have been run down to the main track but would have been thrown off and ditched. It has also been testified by certain witnesses that they saw boys loosen those cars, saw them take off the brake, start the cars, and shut the throw-off switch. From which it sufficiently appears, and is not contradicted, and the counsel were candid enough to admit that they believed it was true, that this accident was caused by the boys loosening the car brakes and closing up the throw-off switch.
"The question left open is whether this company was negligent in any respect in regard to its manner of leaving those cars there that day and fastening them.
"It appears that there was another switch down near the main track some fifteen hundred or two thousand feet, which can be used as a throw-off switch, and it was argued that if that switch had been left open the cars would have been ditched there and there would have been no accident. It was also argued to you that inasmuch as the company had no lock upon this switch, they therefore ought to be held for that reason.
"[Under the law applicable to this case I must submit the question to you to determine whether you find the defendant was careless in not opening the lower switch or not putting on locks. Personally, if I were a juror, I would say no. If I were a juryman I would think that the company had done all that any prudent man would do; it braked its cars, opened the throw-off switch and left them there. But the question must be submitted to you as jurors to say whether you find it was carelessness on the part of the defendant to leave those cars there on a decline on which the cars would have run into the main road in case they had got loose.] That is one of the questions to be left to you for the purpose of finding, if you can, whether this company was in fault in so leaving the cars.
"[There is another part of the case, which is brought out with great strength under the evidence, and proved, I think, to your satisfaction, as at least it is to mine, that this accident was caused by the willful misconduct of certain boys; that those boys meddled with those cars and that switch, and that it was their willful misdoing that caused the accident. I leave it to you to say whether you think under those circumstances a company ought to be held responsible for the malicious, willful misconduct of bad boys. My own individual opinion in that case is that they ought not, but as I am bound to leave that question to you, I do leave it to you to determine.]
"If you find that this company was at fault in any respect and is responsible for this injury, then, of course, you will find in favor of the plaintiff and proceed to assess the damages. You are not to find in favor of the plaintiff and against the company simply because the plaintiff was hurt. That is no proof of carelessness. Many a man is hurt accidentally; he hurts himself sometimes; he is hurt by cars; hurt by omnibuses and by wagons when it is a pure accident. Sometimes people are hurt by willful misconduct of third persons, and yet the company is not responsible, just as you have been told in the case of throwing stones into the car. The mere fact that a man has been badly hurt, as undoubtedly this plaintiff was, is not sufficient to entitle him to recover from the company. [It is essential that it should be proven to you that his injuries were caused by the neglect or carelessness of the company defendant. I leave it to you, not without some hesitation, to say in this case whether you find any such evidence of negligence.]
After charging as to measure of damages, if the verdict was for plaintiff, the court continued:
"On the other hand, if your verdict is in favor of the defendant, all you have to say is, verdict for the defendant. It is a question for you to settle on the evidence, and I submit it to you as good, true, and lawful men of the country, in the hope that you will be able to come to some result which will be according to the evidence, and which will be just and fair to both sides."
Plaintiff's points were among others as follows:
"4. If the jury believe that the defendant company placed loaded cars on a switch which had an inclination towards the main track, and secured them simply by brakes and an unlocked throw-off switch, such cars cannot be considered as secured with that degree of care, skill, and prudence which the law requires to be exercised in such matters. Answer: I refuse that point, and leave it to the jury as in the general charge." [2]
"5. There is no legal principle that would justify a railroad company in leaving loaded cars in such a situation that they could be caused to run on to its main track in the way of its passing trains by the carelessness of persons passing by, or by the mischievous acts of children." Refused. [3]
Defendant's points were among others as follows:
"1. The presumption of negligence on the part of a carrier of passengers which arises from the happening of an injurious accident may be effectually rebutted by proof that the accident was produced by a cause external to the carrier and beyond his control. In the present case there is evidence that the cause of the accident was external to the carrier and beyond his control; and if the jury believe that evidence their verdict should be for the defendant." Affirmed. [4]
"2. The uncontradicted testimony on the part of the defendant shows that the proximate cause of the collision in which the plaintiff was injured was the wrongful act of trespassers upon...
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