Cummings v. Pitts., Cin. & St. L. Railway Co.

• Decision Date: 17 November 1879
• Citation: 92 Pa. 82
• Parties: Cummings <I>versus</I> Pittsburgh, Cincinnati and St. Louis Railway Company.
• Court: Pennsylvania Supreme Court

92 Pa. 82

Cummings versus Pittsburgh, Cincinnati and St. Louis Railway Company.

Supreme Court of Pennsylvania.

November 7, 1879.

November 17, 1879.

November 7th 1879.

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

Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1879, No. 328.

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Barton & Sons, for plaintiffs in error.—In the court below the defendant relied on Kirby v. Railroad, 26 P. F. Smith 506. A very superficial examination of that case shows that it does not rule this one. Kirby, when injured, was on the cars of the railroad on the side track of the railroad, actually on the company's ground. The coal railroad did not connect, but ran alongside above grade, and the coal was run down chutes from the cars of the coal company into the cars of the railroad. Kirby was loading coal into the railroad company's cars. Cummings, the plaintiff, was on the cars of McCue. The cars were on the siding of McCue, and the siding was on his property at a time when all connection was or should have been cut off. The cars of the defendant and its employees had no authority to be there then more than merely to go past, and by their own negligence in not turning their switch, ran off their course, and into the private property of another.

The Act of 1868 is a sufficient innovation upon the rights of the people without extending it any further than the words will bear. It is confined to those injured while employed in or about depots, or in or upon any car or train therein or thereon. That is upon a car or train of the railroad company on its railroad or in its depot. The boy was not employed in or about a railroad depot. He was simply unloading coal in the coal yard of a private citizen from a car that had passed all the perils of railroad and depots.

Hampton & Dalzell, for defendant in error.—Counsel for plaintiff seek to distinguish Kirby's case from this, by saying that there the cars were the railroad company's, and the siding on the company's ground, while in this the cars were McCue's, and the switch on his ground. To maintain such distinction is to fritter away the statute. If the party is injured while lawfully employed about a railroad company's road or works, it matters not on whose car he may be, or whether on any car, he is within the express letter of the statute. That construction which makes the defendant's liability depend...