Devereux v. Philadelphia & Reading Railway Co.

• Decision Date: 20 April 1914
• Docket Number: 46
• Citation: 91 A. 235,245 Pa. 136
• Parties: Devereux, Appellant, v. Philadelphia & Reading Railway Co
• Court: Pennsylvania Supreme Court

91 A. 235

245 Pa. 136

Devereux, Appellant, v. Philadelphia & Reading Railway Co

No. 46

Supreme Court of Pennsylvania

April 20, 1914

Argued March 30, 1914

Appeal, No. 46, Jan. T., 1914, by plaintiff, from judgment of C.P. No. 2, Philadelphia Co., June T., 1911, No. 3034 refusing to take off nonsuit in the case of A.J. Antelo Devereux v. Philadelphia & Reading Railway Co. Affirmed.

Trespass to recover damages for death of horses. Before HEYDT, P.J. specially presiding.

The opinion of the Supreme Court states the case.

The court entered judgment of nonsuit, which it subsequently refused to take off. Plaintiff appealed.

Error assigned was in refusing to take off nonsuit.

Judgment affirmed.

Stevens Heckscher, of Duane, Morris & Heckscher, for appellant, cited: Railroad Co. v. Skinner, 19 Pa. 298; North Pennsylvania Railroad Co. v. Rehman, 49 Pa. 101; Ely v. Pittsburgh, Etc., Ry. Co., 158 Pa. 233; Strader v. Monroe Co., 202 Pa. 626; Hunterson v. Traction Co., 205 Pa. 568; Clark v. Lancaster, 229 Pa. 161; Cronmuller v. Evening Telegraph, 232 Pa. 14; Parker v. Matheson Motor Car Co., 241 Pa. 461; C. & N.W. Ry. Co. v. Smedley, 65 Ill.App. 644; Mooers v. R.R. Co., 69 Minn. 90; Bostwick v. Railway Co., 2 N.D. 440; Nicholson v. Chicago, M. & St. Paul Ry. Co., 137 S.W. Repr. 69; Alabama G. So. R.R. Co. v. Hall, 133 Ala. 362; Slocumb v. C.B. & Q.R.R. Co., 57 Iowa 675; St. L. & S.F.R.R. Co. v. Carlisle, 75 Ark. 560; Richmond v. Sacramento Valley R.R. Co., 18 Cal. 351; Mo. Pac. R.R. Co. v. Wilson, 28 Kan. 637; Kentucky Cent. R.R. Co. v. Lebus, 14 Bush. 518; Galveston, H. & S.A. Ry. Co. v. Balkam, 20 S.W. Repr. 860; Piepke v. P. & R. Ry. Co., 242 Pa. 321.

Wm. Clarke Mason, for appellee, cited: Railroad Co. v. Skinner, 19 Pa. 298; No. Penna. Railroad Co. v. Rehman, 49 Pa. 101; Fisher v. Railroad Co., 126 Pa. 293; Clark v. Railroad Co., 24 Pa.Super. 609; Snyder v. Railroad Co., 205 Pa. 619; Scowden v. Railroad Co., 26 Pa.Super. 15; Thubron v. Contracting Co., 238 Pa. 443.

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

OPINION

MR. JUSTICE ELKIN:

We have read with interest and care the very able argument of learned counsel for appellant, but cannot agree that what has been considered the settled rule of our cases should be disregarded in order to meet the exigencies of the case at bar. It is frankly conceded that if the doctrine of our earlier cases is still the law in Pennsylvania, appellant can only recover on the ground of gross and wanton negligence. If a trespasser upon the right of way of a railroad company, not at or near a public crossing, can only recover damages for injuries sustained on the ground of wilful, wanton, or gross negligence, it is clear appellant has no case under the facts disclosed by this record. The argument of appellant is intended to suggest that this rule has become obsolete and should no longer be adhered to in determining the liability of a railroad company. The horses, the value of which this suit was brought to recover, were killed while trespassing upon the right of way of the defendant company, and this is conceded, but it is contended that under all the facts disclosed by the testimony it was for the jury to say whether the railroad company exercised proper and reasonable care under the circumstances. We see nothing in the case to take it out of the rule which has been recognized and followed in our State for more than half a century. For a general discussion of the doctrine upon which the rule was based see Railroad Co. v. Skinner, 19 Pa. 298; No. Penna. Railroad Co. v. Rehman, 49 Pa. 101. Counsel have called our attention to numerous cases in other jurisdictions in which a different rule has been adopted, but in most of these jurisdictions the question was controlled by statutory requirements. In many of the states railroad companies are required by statute to fence their rights of way, and this being an imperative duty intended primarily as a protection to trespassing animals, ...