Empire Transportation Co. v. Wamsutta Oil Co.

• Decision Date: 03 January 1870
• Citation: 63 Pa. 14
• Parties: Empire Transportation Company <I>versus</I> Wamsutta Oil Refining and Mining Company.
• Court: Pennsylvania Supreme Court

Page 14

63 Pa. 14

Empire Transportation Company versus Wamsutta Oil Refining and Mining Company.

Supreme Court of Pennsylvania.

October 21, 1869.

January 3, 1870.

October 21st 1869.

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

Error to the Court of Common Pleas of Venango county: No. 182, to October and November Term 1869.

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J. Ash and S. C. T. Dodd, for plaintiffs in error.—The question of negligence was for the jury: McCully v. Clarke, 4 Wright 399; Penna. Railroad v. Ozier, 11 Casey 60.

C. Heydrick, for defendants in error.—A carrier is bound to provide a vehicle entirely perfect: New Jersey Railroad v. Kennard, 9 Harris 208; Hart v. Allen, 2 Watts 115. It was negligence to carry so inflammable a substance as crude oil with refined oil: Powell v. Penna. Railroad, 8 Casey 414. Under such circumstances more than ordinary care is required: Catawissa Railroad v. Armstrong, 2 P. F. Smith 286. The facts were such as required the court to pronounce that they were negligence: Glassey v. Hestonville Passenger Railway, 7 P. F. Smith 174; Pittsburg and Connellsville Rairoad v. McClurg, 6 Id. 294.

The opinion of the court was delivered, January 3d 1870, by SHARSWOOD, J.

As a common carrier cannot, by a special notice or limitation in the contract or bill of lading, protect himself from liability for the negligence of himself or his servants, Pennsylvania Railroad Co. v. Henderson, 1 P. F. Smith 315, the only question in this cause was, whether the defendants had been guilty of such negligence. The error assigned is, that the court below took that question from the jury, by affirming the plaintiff's second point, by which they were instructed, that if they were satisfied that certain facts were proved, the plaintiffs were entitled to recover. The rule upon this subject was very clearly laid down in McCully v. Clarke, 4 Wright 399, in which it was said: "There are some cases in which a court can determine that omissions constitute negligence. There are those in which the precise measure of duty is determinate, the same under all circumstances. When a duty is defined, a failure to perform it, is, of course, negligence." Other cases fully corroborate this doctrine: Powell v. Pennsylvania Railroad Co., 8 Casey 414; Pennsylvania Railroad Co. v. Ozier, 11 Id. 60; Pittsburg & Connellsville Railroad Co. v. McClurg, 6 P. F. Smith 294; Glassey v. Hestonville Passenger Railway Co., 7 Id. 172.

The duty of a common carrier is, to provide a vehicle in all respects adapted to the purposes of carriage, and so constructed as to be able to encounter the ordinary risks of transportation: Story on Bailments, § 509. It must be perfect in all its parts, in default of which, he becomes responsible for any loss that occurs in consequence of any defect, or to which it may have contributed: Hart v. Allen, 2 Watts 114; New Jersey Railroad Co. v. Kennard, 9 Harris 204. When merchandise, of whatever character, is carried on the same railroad train with cars loaded with a combustible substance, easily ignited by sparks from the locomotive engine — it is the special duty of the carrier to take every available...