30 Pa. 454 (Pa. 1858), Reeves v. The Delaware, Lackawanna and Western Railroad Co.

Citation:30 Pa. 454
Opinion Judge:WOODWARD, J.
Party Name:Reeves v. The Delaware, Lackawanna and Western Railroad Company.
Attorney:B. S. Bentley and R. B. Little, for the plaintiff in error. W. & W. H. Jessup, for the defendants in error
Court:Supreme Court of Pennsylvania
 
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Page 454

30 Pa. 454 (Pa. 1858)

Reeves

v.

The Delaware, Lackawanna and Western Railroad Company.

Supreme Court of Pennsylvania.

1858

Where no particular instructions are prayed, the court is responsible only for the general effect of their charge, not for particular sentences in it separated from the context. If as a whole the charge was calculated to mislead the jury, it is error, not otherwise.

The mere omission to say what might have been properly said, is no just ground of complaint by a party who submitted no points to the court.

If an injury results from the want of ordinary care of both parties, neither has a remedy against the other.

A party driving cattle along a road which is crossed by a railroad, at grade, has a right to presume that the servants of the railroad company will take all reasonable and proper precautions to avoid injury to those who are lawfully on the road.

It is negligence to approach such a crossing at a speed of 25 or 30 miles an hour; and a party injured is not guilty of negligence in not anticipating and providing against such conduct on the part of the servants of the company.

A party lawfully crossing a railroad at grade with a drove of cattle, is not bound to give a signal to an approaching train. If necessary, it is the duty of the company to employ a person to give signals.

ERROR to the Common Pleas of Susquehanna county.

This was an action on the case, by Elisha Reeves against The Delaware, Lackawanna and Western Railroad Company, for killing and injuring the plaintiff's cattle, whilst lawfully crossing the defendants' railroad.

The terminus of the defendants' railroad is at Great Bend, about two miles south of which it is crossed, at grade, by the Newburgh turnpike. Near this crossing there is a deep cut, and the railroad approaches it on a curve, so that it cannot be seen until almost at the intersection. For half a mile before coming to the cut, the railroad and turnpike run nearly parallel, about ten rods apart, and in plain sight of each other.

The plaintiff was driving a drove of nearly 300 head of cattle from Great Bend, along the turnpike; and if the train had been in time, the cars would have passed him at a point where there was no danger. When within about thirty rods of the crossing, the plaintiff inquired of an employee of the company, how soon the cars would be along. He was informed they were expected soon, perhaps in five minutes. The plaintiff said he would try and get his drove over; he thought he could get a part of them over, if not the whole. Before the train approached, he succeeded in getting over one division; and whilst a second division was approaching the track, the cars came in sight, at a rate of 25 or 30 miles an hour; the whistle was blown before reaching the crossing, and this so frightened the cattle that, in spite of all efforts to restrain them, they rushed on the track, and several of them were killed, and others bruised and mangled.

The court below (WILMOT, P. J.) delivered the following charge to the jury:--

" The plaintiff in this case claims to recover for an injury sustained by him, in consequence of the alleged negligence of the defendants' agents in running their cars; whereby several cattle were killed, others injured, and a part of his drove detained. It is of the first importance that the principles of law which control the rights, and fix the liabilities of parties, in cases of this character, should be clearly defined and well understood.

Railroads have become a necessity of the age and country in which we live. In connexion with the electro-magnetic telegraph, they have worked a great revolution in the business, social condition, and life of our people. Over these roads is transported a vast amount of property; and whoever makes a journey of any extent, is compelled to trust his life upon them. When interests of such magnitude are concerned, we have a right to demand that the greatest care shall be observed on the part of all, that neither life nor property be unnecessarily put in peril. Railroad companies should be held responsible for slight negligence on the part of their agents and employees, in behalf of the passenger against whom no neglect is chargeable; and the same rule should apply to the owner of adjoining lands, and those who travel the ordinary highways; but as between this latter class and the company, neither should be allowed to recover of the other, if the injury, in any degree, was the result of the negligence of the party who complains. The injury must result wholly from the negligence of the party complained against; if it proceed in any degree from the negligence of the party complaining, no action can be maintained. Such are the general principles of law touching actions of this nature, and these principles should be intensified rather than relaxed, in cases of the character immediately under consideration.

The right of the public to travel on the ordinary highways is undisputed; but when one runs along in the vicinity of a railroad, and is frequently crossed by it, the traveller upon the former is bound to be mindful of the character of the travel over the latter--the immense weight of the trains--the powerful machinery and agent employed in running them, and the velocity at which they move--and to regulate his conduct accordingly. To come to the case in hand. The plaintiff is driving a large drove of near three hundred head of cattle along the turnpike, in the vicinity of the railroad of the defendants. He is bound to use greater care in the management of his cattle, than would be required were no such road in close proximity; for the obvious reason, that greater care is necessary for the security of his own property, and for the safety of the lives and property of others. He may not approach a crossing with no more precaution, than if he were liable to meet a stage coach. He should inform himself, as well as he reasonably can, of the time the trains are expected, and even subject himself to some inconvenience and delay, rather than incur the hazard of a collision. It is in the evidence, that the plaintiff made inquiry of a person employed on the road near the crossing, when the train was expected, and was informed that it was behind time, and liable to pass at any moment, and in his judgment would pass within five minutes; and that he advised the plaintiff not to attempt to pass...

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