Boggess v. Baltimore & O. R. Co.

• Decision Date: 02 January 1912
• Docket Number: 224
• Citation: 234 Pa. 379,83 A. 356
• Parties: Boggess v. Baltimore & Ohio Railroad Company, Appellant
• Court: Pennsylvania Supreme Court

83 A. 356

234 Pa. 379

Boggess v. Baltimore & Ohio Railroad Company, Appellant

No. 224

Supreme Court of Pennsylvania

January 2, 1912

Argued October 30, 1911

Appeal, No. 224, Oct. T., 1911, by defendant from judgment of C.P. No. 4, Allegheny Co., First Term, 1909, No. 233, on verdict for plaintiff in case of Minerva Elizabeth Boggess v Baltimore & Ohio Railroad Company. Reversed.

Trespass to recover damages for death of plaintiff's husband. Before COHEN, J.

At the trial it appeared that the deceased was killed in defendants yard on January 20, 1908, while diagonally crossing a track in order to reach a car which he intended to unload. The evidence tended to show that the death of the decedent was due to the negligent operation of a locomotive.

The court charged in part as follows:

If you find that such permissive right of crossing and using these tracks existed, then the company was bound to take notice of such right, and to take such reasonable measures for the safety of its shippers so using the tracks, as to reasonably by ordinary care, protect them from danger; there being in such case no presumption that the track was clear at such point, as there is in other parts of the road where such permissive use does not exist.

[If you believe from the weight of the evidence that such shippers used defendant's tracks for reaching their cars, then such use established a permission by the company, or what is known as a permissive use, to the shippers so to do, if it existed as many years as the testimony of some of the witnesses indicates; and the company thereby incurred a liability or duty as to that class of shippers to see to it that its operations on those tracks were controlled with reasonable care.] 17.

[The company could have canceled this right of way or permissive use, if it existed, by due notice to shippers. Indeed, there is an Act of Assembly in Pennsylvania permitting all property owners, whether railroad owners or private owners, by placarding their property, to notify people not to trespass. If the company did not do so, and you find from the weight of the evidence that the permissive use as described then existed, as to crossing the tracks, the company was bound to recognize the incidental danger connected with the conditions that prevailed, so far as the safety of such shippers was concerned, in the operation of its engines along said tracks, by the exercise of prudent and reasonable methods.] 18.

Was there, gentlemen, such permissive use at the location in question? If so, did the company in the operation of its cars, use that degree of reasonable care which under the circumstances it was bound to do? You must be satisfied by the weight of the evidence that the company, or its agents and officers at this location, had notice, either actual or constructive, by a reasonably long lapse of time, by reasonably frequent and general use by those and other shippers, before you can determine that there was a permissive crossing. Did the company have such notice that these tracks were used in manner and form as indicated by the testimony so as to constitute a permissive way? That is for you.

The defendant presented inter alia the following points:

["Ninth. The jury must disregard the evidence as to the amount of profits made by the deceased, G. W. Boggess, in his business during the time that he was in partnership with the two other men named by the plaintiff."

This point is affirmed, as qualified by the terms of my charge later on this question.] 9.

["Tenth. The jury must disregard the evidence as to the amount of profits made by the deceased, G. W. Boggess, in his business prior to the time that he was in partnership with the two other men named by the plaintiff."

This point is refused with the preceding qualification.] 10.

["Eleventh. The jury must disregard the evidence as to the amount of profits from his business which was devoted by the deceased, G. W. Boggess, to the support of his wife and family during the time that he was in partnership with the two other men named by the plaintiff."

This point is refused, with the preceding qualification.] 11.

["Twelfth. The jury must disregard the evidence as to the amount of profits from his business which was devoted by the deceased, G. W. Boggess, to the support of his wife and family prior to the time that he was in partnership with the two other men named by the plaintiff."

This point is refused.] 12.

[Now, gentlemen, to elaborate and explain the true meaning of what I suggested to you -- for fear that I may not have been clear, I will qualify all these answers by saying to you and by impressing upon you that the evidence to show the profits of the deceased in a partnership business and that he furnished money in considerable amounts to his family, is not to be considered in estimating the damage sustained by reason of his death; but I say to you further, and the Supreme Court of this State has said within a few months, that although profits derived from a business cannot be considered as earnings, yet in many cases, profits derived from the management of business may properly be considered by the jury as measuring the earning power. And this is especially true, the Supreme Court says, when the business is one which requires and receives the personal attention and labor of the owner. With these qualifying suggestions as to my answers to these points on this subject, I submit the matter to you.]

Verdict and judgment for plaintiff for $10,000. Defendant appealed.

Errors assigned, among others were, (9, 10, 11, 12, 17) above instructions quoting them.

Judgment reversed and a venire facias de novo awarded.

William Watson Smith, with him Gordon & Smith, for appellant. -- We submit that the Railroad Company did all that could reasonably be required to provide a way for the produce men to reach their cars, and that they could not, by the use of the tracks which has been described, fasten upon the railroad a permissive crossing lying between the two planked crossings which the Railroad Company had provided: Bailey v. Lehigh Valley R.R. Co., 220 Pa. 516; Mulherrin v. R.R. Co., 81 Pa. 366; Moore v. R.R. Co., 99 Pa. 301; Penna. R.R. Co. v. Mooney, 126 Pa. 244; Grant v. R.R. Co., 215 Pa. 265; Bailey v. R.R. Co., 220 Pa. 516; Kay v. R.R. Co., 65 Pa. 269.

We submit that evidence to show profits of deceased in a partnership business are not admissible in a case of this kind: McCracken v. Traction Co., 201 Pa. 384; McLane v. Rys. Co., 230 Pa. 29; Wallace v. R.R. Co., 195 Pa. 127.

David A. Reed of Reed, Smith, Shaw & Beal, with him Allen H. Kerr and Young & Clay, for appellee.

Before FELL, C.J., BROWN, MESTREZAT, POTTER, ELKIN, STEWART and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE ELKIN:

The husband of appellee was struck and killed by a shifting engine in the freight yards of appellant company. He was a dealer in produce and went to the freight yards on the morning of the accident to take charge of a car of produce consigned to him, which car was standing on a side track in the freight yards at a customary place for the purpose of delivery. The car was delivered at that point in order that the consignee might have reasonable and safe access to it for the purpose of unloading and removing the produce which belonged to him. The shipper as he had the right to do designated the terminal point at which the car was to be delivered, but the railroad company in the exercise of its control and supervision of freight shipments placed the car on a track in the freight yard selected by itself as a proper place to make the delivery. By placing the car at that point the consignee and those acting under his authority had a right to assume that the place was reasonably safe for the purpose intended, and that access would be afforded for the purpose of removing the produce. The learned court below clearly points out that no matter by what route the car was approached it was necessary to cross other tracks of the railroad company before reaching it. By the diagonal way spoken of by the witnesses in the case only one track had to be crossed, while by taking the wagon route over the planked crossings, it was necessary to cross several tracks before the car in question was reached. It is not therefore a case in which the right to recover damages is defeated because the injured party chose a dangerous route when nearby there was a perfectly safe route free from danger. The main contention of appellant is that the deceased husband was guilty of contributory negligence per se because in attempting to reach the car he took the diagonal way across the intervening track, instead of following the wagon way over the planked crossings. This position is asserted upon the theory that the case at bar is controlled by the rules of law applicable to grade crossing cases. We cannot accept this as a sound view of the law to be applied to the facts of the case at bar. This case is essentially different from the grade crossing cases relied on by appellant and comes more nearly within the reason and spirit of the rule laid down in Kay v. Railroad Company, 65 Pa. 269; Taylor v. Canal Company, 113 Pa. 162 and Curtis v. DeCoursey, 176 Pa. 446. In discussing a somewhat similar question in the case last cited, the present Chief Justice said: "Persons delivering or receiving freight did not enter and use the yard by the mere permission or passive acquiescence of the company, they were not strangers or mere licensees as to whom no duty in regard to the safety of the premises, except as to unexpected or secret dangers, arose. They were there by invitation in its technical sense, and by right. Their use of the yard was for the mutual interest of both parties in carrying on their business...