Cauley v. Pittsburgh, &c. Railway Co.

• Decision Date: 03 January 1882
• Citation: 98 Pa. 498
• Parties: Cauley <I>versus</I> Pittsburgh, Cincinnati & St. Louis Railway Company.
• Court: Pennsylvania Supreme Court

98 Pa. 498

Cauley versus Pittsburgh, Cincinnati & St. Louis Railway Company.

Supreme Court of Pennsylvania.

October 7, 1881.

January 3, 1882.

October 7th 1881.

Before SHARSWOOD, C. J., MERCUR, PAXSON, TRUNKEY, STERRETT and GREEN, JJ. GORDON, J., absent

ERROR to the Court of Common Pleas No. 2, of Allegheny county: Of October and November Term 1881, No. 180 A. M. Watson, for plaintiff in error.

Hampton and Dalzell, for defendant in error.

Mr. Justice PAXSON delivered the opinion of the Court January 3d 1882.

This case has been twice argued. There were two suits brought against the defendant company to recover damages for the injuries complained of; one by the father, in his own right, the other, which is the present case, by the boy who was injured. They were argued together, and the writ in each case quashed, for the reason that but one writ was issued to bring up the two cases. As they were fully argued we deemed it proper to express our opinion upon the merits. No fault was found with our view of the case in which the father sued in his own right, but as to the present case the learned counsel for the plaintiff was of opinion that we had not given due consideration to the distinction which exists between children and adults in the matter of contributory negligence. A second writ of error was accordingly sued out, and was heard at the last term in the western district.

A re-consideration of the case, aided by the second argument, has failed to satisfy us of any error in the former opinion. The distinction referred to was not lost sight of. It is true we did not discuss it then, nor do we propose to do so now, for the reason that, conceding all that is claimed for it, no negligence was shown or offered to be shown, on the part of the defendant company. All the conductor did was to order the plaintiff off the car. This was his duty to do. The boys were trespassers, and their removal from the car was not in itself a cause of complaint. Was there anything in the manner of their removal which would render the defendant company liable in damages? The plaintiff was not thrown off. He was not touched by the conductor or any railroad employe. He was told to get off a sand car which was being shifted from a siding to a switch a few yards distant. Had the conductor any reasonable ground to believe when he told the boys to get off that any of them would be injured in doing so? Before the company can be held liable it must appear that the injury to the plaintiff was the natural and probable result of the conductor's order: such a consequence as he might and ought to have foreseen at the time: Hoag v. The Railroad Company, 4...