Flower v. Pennsylvania Railroad Co.

• Decision Date: 09 January 1872
• Citation: 69 Pa. 210
• Court: Pennsylvania Supreme Court
• Parties: Flower and Wife <I>versus</I> The Pennsylvania Railroad Co.

69 Pa. 210

Flower and Wife versus The Pennsylvania Railroad Co.

Supreme Court of Pennsylvania.

May 19, 1872.

January 9, 1872.

May 19th 1872.

Before AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the Court of Common Pleas of Lebanon county: No. 57, to May Term 1871.

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A. C. Reinoehl and O. J. Dickey, for plaintiffs in error, cited 1 Redfield on Railways 512, 513, pl. 6-9.

H. M. North and L. W. Hall (with whom was G. F. Breneman), for defendants in error.—The deceased being where he had no right to be, the plaintiffs cannot recover: Philadelphia and Reading Railroad v. Hummel, 8 Wright 375; Same v. Spearen, 11 Id. 300; Gillis v. Penna. Railroad, 9 P. F. Smith 129. The employer is not responsible for his servant's acts, not in the scope of his employment: Potter v. Faulkner, 1 Best & Smith 800; Lygo v. Newbold, 9 Exchequer (W., H. & G.) 302; Wilson v. Peverly, 2 New Hampshire R. 548; Thames Steamboat Co. v. Housatonic Railroad, 22 Conn. R. 40; Satterlee v. Groat, 1 Wendell 272; Goodman v. Kennell, 3 Car. & P. 167. If properly called to assist, the deceased was in the condition of a fellow-servant and the defendants would not be liable for the other servant's negligence: Shearman and Redfield on Negligence 122.

The opinion of the court was delivered, January 9th 1872, by AGNEW, J.

It is proper this case should be examined in the light of the evidence of the plaintiffs. According to that view the engine, tender and one freight-car ran down to the water-tank to take in water. They were in charge of the fireman, the engineer having necessarily stopped off till their return. At the waterstation the fireman in charge asked the son of the plaintiffs, a boy ten and a half years old, standing on the platform of the water-tank, to put in the hose and turn on the water; and then turned to clean out the ash-pan of the engine. The boy climbed up the side of the tender to put in the hose, and as he did, some detached freight-cars belonging to the train, came down without a brakesman, and struck the car behind the tender, driving the tender and engine forward from six to ten feet. The boy fell from the tender and was crushed to death. Is the railroad company responsible to the parents? The case involves no public right. The accident happened at no crossing, or place where the public had a right to be. The boy was not a passenger, or one to whom the company owed a special duty. The platform of the water-tank was the private property of the company, and was used for its own purposes. The engine and tender were where they had a right to be. The track itself was the property of the company, and the detached cars were not the cause of injury in any sense which affected the public rights or even those of the employees of the company. They came against the car and tender with no great force, and did no injury to the property or employees of the company. They were the cause of injury to the boy, only in so much that he had placed himself in a position of danger, where ordinarily he had no right to be. It is evident therefore that the case turns wholly on the effect of the request of the fireman, who was temporary engineer, to put in the hose, and turn on the water. Did that request involve the company in the consequences? This is a very hard case. A willing bright boy not arrived at years of discretion has lost his life in simply trying to oblige the fireman. But we must not suffer our sympathies to do injustice to others, by overriding those fixed principles which underlie the rights of all men, and are essential to justice. It is natural justice that one man should not be held liable for the act of another, without his participation, his privity or his authority. It is clear that the fireman, through his indolence, or haste, was the cause of the boy's loss of life. Unless his act can be legally attributable to the company, it is equally clear the company was not the cause of the injury. The maxim, Qui facit per alium facit per se, can apply only where there is an authority, either general or special. It is not pretended there was a special authority. Was there a general authority which would comprehend the fireman's request to the boy to fill the engine-tank with water? This seems to be equally plain without resorting to the evidence given, that engineers are not permitted to receive any one on the engine but the conductor, and the foreman or superintendent, that it is the duty of the fireman to supply the engine with...