96 Pa. 65 (Pa. 1880), Baltimore & Ohio Railroad Co. v. Sulphur Spring Independent School Dist.

Citation:96 Pa. 65
Opinion Judge:Mr. Justice GREEN
Party Name:Baltimore and Ohio Railroad Co. v. Sulphur Spring Independent School District.
Attorney:Markle & McCullogh, for plaintiff in error Hazlett & Williams, John F. Wentling and James S. Moorhead, for defendant in error
Judge Panel:Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.
Case Date:November 22, 1880
Court:Supreme Court of Pennsylvania
 
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Page 65

96 Pa. 65 (Pa. 1880)

Baltimore and Ohio Railroad Co.

v.

Sulphur Spring Independent School District.

Supreme Court of Pennsylvania.

November 22, 1880

October 28, 1880

1. In the construction of a culvert under a railroad, the engineer of the company declared to a bystander, in no way connected with the road, that he thought the culvert would prove insufficient in a flood. Twenty-five years thereafter suit was brought against the lessee of the company for damages for an injury resulting from an overflow of the embankment, and the party to whom these declarations of the engineer were made was permitted to testify thereto: Held, that this was error; that said declarations were inadmissible to bind the defendant in any way whatever.

2. The concurring negligence which, when coupled with the act of God produces an injury, must, in order to render a defendant responsible, be such as is in itself a real producing cause of the injury and not a merely fanciful or speculative negligence, which may not have been in the least degree the cause of the injury.

3. A railroad company, in constructing its road and works is bound to bring to their execution the engineering knowledge and skill ordinarily known and practiced in such works. There is no liability on a company for not constructing a culvert so as to pass extraordinary floods.

4. Pittsburgh, Fort Wayne and Chicago Railroad Co. v. Gilleland, 6 P. F. Smith 445, followed.

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

Error to the Court of Common Pleas of Westmoreland county: Of October and November Term 1880, No. 232.

Case by the Sulphur Spring Independent School District of Sewickley township, Westmoreland county, against the Baltimore and Ohio Railroad Company, lessee of the Pittsburgh and Connellsville Railroad Company.

It appeared that the portion of the defendant's road which passed through Sewickley township was constructed in 1855. To procure the proper grade it was found necessary to make an embankment about twenty feet high across the mouth of Shaner's Hollow, and construct therein boxes, or, in the technical terms used by the engineers barrels, to vent the water of the rivulet under the embankment. Three barrels were built with stone bottom, sides and top. A stone lodged in one barrel, and on account of its size and the inability of the local repairmen to move it, and of the decreased water-flow, and because the other two at all times vented the water, it was suffered to remain there, and this left but the two barrels to carry off the water. In 1876 the Pittsburgh and Connellsville Railroad was leased by the defendant company, which has since operated it.

On Wednesday, July 23d 1879, a heavy rain occurred, which washed dirt and debris down this stream and filled up the culvert. This was discovered by the supervisor of the division on the evening of Thursday, July 24th 1879. On Saturday morning, July 26th 1879, he and his gang commenced cleaning out the barrels of the culverts. When the gang had one barrel entirely clean and the second very nearly so, a rain of great violence began and continued for the space of thirty or forty minutes, and the water rose with great rapidity above the level of the track some two feet, and with such force as to wash away the superstructure of the railroad, including rails, sleepers, ballast and switch for a double track, and also from six inches to two feet of the top of the embankment. The...

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