Mulherrin v. Del., L. & W. Railroad Co.

• Decision Date: 08 May 1876
• Citation: 81 Pa. 366
• Court: Pennsylvania Supreme Court
• Parties: Mulherrin <I>versus</I> Delaware, Lackawanna and Western Railroad Co.

81 Pa. 366

Mulherrin versus Delaware, Lackawanna and Western Railroad Co.

Supreme Court of Pennsylvania.

March 14, 1876.

May 8, 1876.

March 14th 1876.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON and WOODWARD, JJ.

Error to the Court of Common Pleas of Luzerne county: Of January Term 1875, No. 64.

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S. Woodward and A. T. McClintock (with whom was E. N. Willard), for plaintiff in error.—If it would have been negligence per se, in a person other than a brakeman, going upon the track as the defendant in this case did, then the fact that he was an employee of another company and about such other company's business, does not change the rule, and if he was injured while in the ordinary pursuit of that company's business, under the circumstances of the case, and the fact that other brakeman were in the habit of walking on the track when there were other places of safety for them to walk, does not help the plaintiff's case, nor change the rule of negligence. That which would have been negligence in any other person than a brakeman was negligence in Patrick Mulherrin: Railroad Company v. Norton, 12 Harris 465; Philadelphia & Reading Railroad Co. v. Hummel, 8 Wright 375.

This Act of 1868 is constitutional: Kirby v. The Pennsylvania Railroad Company, 26 P. F. Smith 506. The case of the plaintiff falls within the terms of the Act of 1868; he had voluntarily ventured into employment alongside of the servants of the defendant. He knew well the risks of his employment, and cannot recover for injury even though it was caused by the negligence of the servants of defendants, who were engaged in the same employment and on the same railroad. It is the duty of courts in cases of clear negligence arising from an obvious disregard of duty and safety, to determine it as a question of law: Pittsburg & Connellsville Railroad Company v. McClurg, 6 P. F. Smith 294; P. & R. Railroad Company v. Hummel, 8 Wright 375; O'Brien v. P. W. & B. Railroad Company, 3 Phila. Rep. 76. Clear negligence on part of plaintiff is most conclusively established under the facts proved in the case, and the 8th and 9th points should have been affirmed.

C. L. Lamberton (with whom was E. P. Kisner and F. C. Mosier), for defendant in error.—The use of a railroad track, except at lawful crossings of public roads or highways, is exclusively for the company and their employees: Railroad v. Hummel, 8 Wright 375. Mulherrin was then rightfully on the track, and it was for the jury what his duties as brakeman required of him and his authority in discharging those duties, to be on the track at the time of his injury: Catawissa Railroad Co. v. Armstrong, 13 Wright 186.

Negligence is to be submitted to the jury upon the question of reasonable and ordinary care under all the circumstances of the case: Patterson v. Wallace, 1 McQueen, H. of L. Cas. 48. Even where the facts are undisputed, it is for the jury and not for the judge to determine whether proper care was exercised or whether they established negligence: Sioux City & P. Railroad Co. v. Stout, 17 Wall. 637; Southworth v. Old Col. & New. Railroad Co., 105 Mass. 344; Bill v. Smith, 39 Conn. 296; Baltimore & Ohio Railroad Co. v. Dougherty, 36 Md. 366; Same v. Fitzpatrick, 35 Id. 32. When the standard shifts with the circumstances of the case, it is in its very nature incapable of being determined as a matter of law, and must be submitted to the jury to determine what it is, and whether it has been complied with: West Chester & Phila. Railroad Co. v. McElwee, 17 P. F. Smith 315; Catawissa v. Armstrong, 2 Id. 282; Penna. Coal Co. v. Bentley, 16 Id. 34; Johnson v. West Chester & Phila. Railroad Co., 20 Id. 357; Kay v. Penna. Railroad Co., 15 Id. 269; Glassey v. Passenger Railroad Co., 7 Id. 174; Phila. Pass. Railroad Co. v. Hassard, 25 Id. 367; Penna. Railroad Co. v. McTighe, 10 Wright 316.

Whether Mulherrin's acts and position at the moment of the accident contributed to his own injury were questions for the jury: L. & B. Railroad Co. v. Chenewith, 2 P. F. Smith 382; Catawissa Railroad Company v. Armstrong, 13 Wright 187; s. c. 2 P. F. Smith 282; Pennsylvania Railroad Co. v. Ogier, 11 Casey 60; Gaynor v. Railway, 100 Mass. 208; 2 Redf. Am. R. Cases 554. It is no justification to the defendants below that they were in the exercise of a lawful right, if the injury arose from the negligent manner in which it was done. And this was a question for the jury: Penna. Railroad Co. v. Barnett, 9 P. F. Smith 259; 1 Redf. on Railroads, sect. 131, p. 527. The rapid running of a train of cars around curves at crossing places over the railroad without usual and necessary signals is negligence per se: Penna. Railroad Co. v. Ogier, 11 Casey 71; Reeves v. D., L. & W. Railroad Co., 6 Id. 454.

The first section of the Act of 1868 even if valid and applicable to persons falling within its terms, cannot be made to apply to the parties to this litigation. Mulherrin was not hurt on the road of the defendant company or near it; and is not within the words or purview of the statute. At no time was he "lawfully engaged or employed on or about the roads, works, depots and premises of the Delaware, Lackawanna and Western Railroad Company, or in or about any train or car therein or thereon." The policy of the law is not to extend the rule restricting the right of action by the employee against the employer in cases of negligence: Catawissa Railroad Co. v. Armstrong, 13 Wright 186. Statutes are not presumed to make any alteration in the common law farther or otherwise than the act expressly declares, and must be construed strictly: Melody v. Reab, 4 Mass. 471; Gibson v. Jenney, 15 Id. 205; Commonwealth v. Knapp, 9 Pick. 496; Wilbur v. Crane, 13 Id. 284.

A statute which is to take away a remedy given by the common law ought never to have an equitable construction, and must be construed strictly: Hammond v. Webb, 10 Mod. 282. The act in question being in the nature of a penal statute, ought to be construed strictly to save a right or to avoid a penalty: Whitney v. Emmett, 1 Bald. 316; Sprague v. Birdsall, 2 Cowen 419; Gilbert v. Col. Turnpike Co., 3 Johns. Cas. 107; Bennett v. Ward, 3 Caines 259; Sickles v. Sharp, 13 Johns. 497; Jones v. Eustis, 2 Id. 379; Myers v. Foster, 6 Cowen 567; Wales v. Stetson, 2 Mass. 146; Smith v. Spooner, 3 Pick. 229. A statute which grants exclusive privileges in derogation of the commonlaw rights of the citizens at large ought not to be extended by implication; on the contrary, it should be construed strictly against the company: Cayuga Bridge Co. v. Magee, 2 Paige 116; Culver v. Hayden, 1 Verm. 359; McMullin v. McCreary, 4 P. F. Smith 230.

It is not to be presumed that the legislature intended to make any innovation upon the common law further than the case absolutely required. The law rather infers that the act did not intend to make any alteration other than what is specified and besides what is plainly pronounced. If that had not been the intention, the legislature would have expressed it otherwise: Dwarris on Statutes 43; Borland v. Nichols, 2 Jones 43; Stormfeltz v. Manor Turnpike Co., 1 Harris 555. The contract to use the roadway of the Lackawanna and Bloomsburg Railroad Company in common did not make Mulherrin subject to the rule governing employees of the company defendant: Catawissa Railroad Co. v. Armstrong, 13 Wright 187; s. c. 2 P. F. Smith 282; Hanover Railroad Co. v. Coyle, 5 Id. 396; Smith v. N. Y. & Harlem Railroad Co., 19 N. Y. 127; Sawger v. Rut. & Burl'n Railroad Co., 27 Vt. 370; Warburton v. Great Western Railroad, 36 L. J. N. S. Exch. 9; Farwell v. Boston & Worcester Railroad Co., 4 Metc. 49.

Mr. Justice PAXSON delivered the opinion of the court, May 8th 1876.

This was an action of trespass on the case for injuries resulting from alleged negligence on the part of the employees of the railroad company in moving their cars. The undisputed facts of the case are substantially as follows: The injury was caused by the train of the Delaware, Lackawanna and Western Railroad Company. The track was owned by the Lackawanna and Bloomsburg Railroad Company. The former company had the right of trackage over the road by virtue of an agreement between the two companies; and the train of the Delaware, Lackawanna and Western Railroad Company was lawfully upon the track. There are two tracks at the point where the injury occurred. Between the inside rails of said tracks there is a space of seven feet in width, leaving a clear space between passing trains of about three and a half feet in width, while outside of the southern track there is room to walk without danger. Patrick Mulherrin, the plaintiff, was in the employ of the Lackawanna and Bloomsburg Company, as a brakeman. On the morning of the 29th of June 1871, he was on his train approaching Scranton from a northerly direction; when near Jackson street he got off from his train to turn the switch, and having performed this duty he went to the watchman's house near the switch, where he remained some time in conversation with the watchman, then lighted his pipe and started towards Scranton to join his train, walking on the northern track. When he stepped on said track a train was passing him on the southern track. Instead of waiting until the train had passed, and then crossing over both tracks to the outside of the southern track, where there was clear space to have walked with safety, he continued walking on the northern...