Cleveland & Pittsburg Railroad Co. v. Rowan

• Decision Date: 03 January 1871
• Citation: 66 Pa. 393
• Parties: The Cleveland and Pittsburg Railroad Co. <I>versus</I> Rowan and Wife.
• Court: Pennsylvania Supreme Court

66 Pa. 393

The Cleveland and Pittsburg Railroad Co. versus Rowan and Wife.

Supreme Court of Pennsylvania.

November 4, 1870.

January 3, 1871.

November 4th 1870.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the District Court of Allegheny county: No. 131, to October and November Term 1869.

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S. Schoyer, for plaintiffs in error.—One crossing a railroad and not stopping and looking both ways is guilty of negligence: Evans v. P. F. W. & C. R. R. Co., 3 P. F. Smith 250; R. R. Co. v. Heileman, 13 Wright 60; P. R. Co. v. Henderson, 7 Id. 449; R. R. Co. v. Coyle, 5 P. F. Smith 396. He is chargeable with opportunities of knowledge: R. R. Co. v. Henderson, 7 Wright 449. The fault is, primâ facie, that of the person crossing the railroad; he must show, affirmatively, that it was not his fault: Telfe v. Northern R. R. Co. (N. J.) 3 Am. Law Reg. N. S. 670; Evans v. P. F. W. & C. R. R., supra. Compensation was all the plaintiffs were entitled to: Heil v. Glanding, 6 Wright 499. The damages were the profit which the parent might derive from the son's services, from which are to be deducted his expenses: Penna. R. R. v. Kelly, 7 Casey 381; Same v. Butler, 7 P. F. Smith 338; Catawissa R. R. v. Armstrong, 2 Id. 286.

T. M. Marshall and A. M. Watson, for defendants in error, cited as to the measure of damages: McCloskey v. Penna. R. R., 11 Harris 530. As to negligence of the company and contributory negligence: N. Penna. R. R. v. Robinson, 8 Wright 175; Reeves v. Railroad, 6 Casey 461.

The opinion of the court was delivered, January 3d 1871, by THOMPSON, C. J.

Only two or three of the numerous assignments of error in this case, we think, call for any special notice at the hands of this court. We regard the others as self-vindicated.

It was contended in argument, on part of the plaintiff in error, that the plaintiffs below had the onus of showing affirmatively that the deceased was guilty of no negligence or want of care at the moment of the disaster to him. This is in one sense the rule, but not as broadly as it has been stated. It is true that negligence on his part would defeat the plaintiff's right of recovery; but to call witnesses to declare the absence of negligence of the kind insisted on, or to prove acts negativing negligence before the defendant is bound to answer, is not required in the first place. It is not a necessary averment in the narr., and is, therefore, not required to be proved until the opposite is set up in defence. It is true, if negligence appear by the plaintiff's own testimony, the defendant might rest on it as securely as if proved by himself. As the love of life and the instinct of preservation are the highest motive for care in any reasoning being, they will stand for proof of care until the contrary appears: Railroad v. Hagan, 11 Wright 244; Railroad Co. v. Hall, 11 P. F. Smith 361; Allen v. Williard, 7 Id. 374. But there was proof of acts on part of the deceased clearly evincive of care on part of the deceased before he took the fatal step, to wit: looking and apparently listening in the direction of the approaching train. His advance, and that of his companion, a young lady, who was also struck and injured at the same time, corroborated what the witness testified to, viz: that they took the ordinary precaution to avoid danger by looking and listening before they stepped on the track. This was referred to the jury on the question of care on part of the deceased, and they have found, in accordance therewith, that there was no negligence. There was no error in this, and this assignment is not sustained.

2. But we think there was error in affirming the plaintiff's 6th point, in regard to exemplary damages. There may be some dicta previous to the Act of 4th April 1868, seeming to favor this idea, but the reasoning of all the cases, when carefully considered, is the other way; but the last-named act settles the law very definitely, if the least doubt existed as to the rule, and this act was in force when this cause was tried. The...