Hanover Railroad Co. v. Coyle

• Decision Date: 03 July 1867
• Citation: 55 Pa. 396
• Parties: Hanover Railroad Company <I>versus</I> Coyle.
• Court: Pennsylvania Supreme Court

Page 396

55 Pa. 396

Hanover Railroad Company versus Coyle.

Supreme Court of Pennsylvania.

May 21, 1867.

July 3, 1867.

May 21st 1867.

Before WOODWARD, C. J., THOMPSON and AGNEW, JJ. Absent, STRONG and READ, JJ.

Error to the Court of Common Pleas of York county.

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J. S. Mayer, for plaintiffs in error.—The answer of the court to the 4th point could only serve to set off the supposed negligence of the defendants against negligence of the plaintiff, and mislead and confuse the jury: Wilds v. Hudson River Railroad Co., 24 New York 443; North Penna. Railroad Co. v. Heileman, 13 Wright 60; Stevens v. the Oswego & Syr. Railroad Co., 18 N. Y. 422; Brooks v. Buffalo and Niag. F. Railroad Co., 25 Barb. 604; O'Brien v. Phila. and Wil. Railroad Co., in Sup. Ct. Penn., 6 Am. Law Reg. 361; Spencer v. U. & Sch. Railroad Co. 5 Barb. 337; Penna. Railroad Co. v. Ogier, 11 Casey 60; Catawissa Railroad Co. v. Armstrong, 13 Wright 192; Cotton v. Wood 8 C. B. N. S. (98 E. C. L. R.) 573; Toomey v. The London, &c., Railway Co., 3 C. B. N. S. (91 E. C. L. R.); Deyo v. New York Cen. Railroad Co., 34 N. Y. (7 Tiffany) 13; Johnson v. Hudson R. R., 20 N. Y. R. 73.

A party injured by a collision, asks only what road it was, and who were operating it, in order to know whom to sue. Does it make any difference that they hired the engine and cars, and the employees on them, from the Hanover Branch Company. The motive power was under their exclusive control of the Gettysburg Company and the sequestrator, and they were made custodians of a public highway, with the perception of the accruing profits: Acts of Feb. 19th 1849, § 18, Pamph. L. 86; April 22, 1850, § 9, Pamph. L. 539; June 16th, 1836, § 74, Pamph. L. 775, Purd. 840 pl. 20, 845, pl. 46, 200 pl. 46; Pierce on Amer. Rl. Rd. Law; 244 Graham v. N. E. R. W. Co., 114 E. C. L. R. 239; Laugher v. Pointer, 5 B. & C. 558 (11 E. C. L. R. 584); Story on Agency, § 313, 2 Kent's Com. 260; Rauch v. Lloyd, 7 Casey 365.

The declarations of the engineer were not a part of the principal fact — the collision — not a part of the res gestæ: Dick v. Cooper, 12 Harris 221; Patton v. Minesinger, 1 Casey 393; Lund v. Tyngsborough, 9 Cush. 36; Lane v. Bryant, 9 Gray 247; Griffith v. Montgomery Railroad Co., 26 Yerg. 111; Thallheimer v. Brinkerhoof, 4 Wend. 398; Vanderbilt v. Richmond Turnpike, 2 Comstock 479; McManus v. Cricket, 1 East 106; 2 Hilliard on Torts 432; Frazier v. Penn. Railroad Co., 2 Wright 104; Hoffman v. Kemerer, 8 Id. 452; Steinman v. M'Williams, 6 Barr 176.

The plaintiff should not have been permitted to recover damages for the profits he might have made on his sales of his goods, if he had not been interrupted by the collision: The Amiable Nancy, 3 Wheat. 546, 560, and cases there cited; per Cowen, J., Blanchard v. Ely, 21 Wend. 342; Smith v. Condry, 1 Howard 28; Giles v. O'Toole, 4 Barb. 261; 2 Greanleaf Ev. § 256; Heil v. Glanding, 6 Wright 499; Fleming v. Beck, 12 Id. 312; Sedgwick on Dam. 78; 1 Chitty Pleading 441, &c. Squier v. Gould, 14 Wend. 159; Vanderslice v. Newton, 4 Comst. 130.

D. J. Williams and J. Gibson, for defendant in error, cited Makey v. Pennsylvania Railroad, 6 Am. Law R. N. S. 415; North Penna. Railroad v. Heileman, 13 Wright 60; Pennsylvania Railroad v. Ogier, 11 Casey 60; O'Brien v. Philadelphia, &c., Railroad, 6 Am. Law R. 361; Phila. & Trenton Railroad v. Hagan, 11 Wright 248; Painter v. the Mayor of Pittsburg, 10 Id. 220; Broome's Legal Maxims 387; 2 Hilliard on Torts 446, pl. 11; Cincinnati v. Stone, 5 Ohio 38; Quarman v. Burnett, 6 M. & W. 499; Milligan v. Wedge, 12 Ad. & El. 737; Rapson v. Cubitt, 9 M. & W. 710; Reedie & Hobbit v. London & North-Western Railway, 4 Exch. 244-254; Overton v. Freeman, 11 C B. 867; Peachy v. Rowland, 13 C. B. 182; Hilliard v. Richardson, 3 Gray 349; Blake v. Ferris, 1 Seld. 48; Pack v. The Mayor, &c., of New York, 4 Seld. 222; Blattenberger v. The Little Schuylkill Navigation Company, 2 Miles 309; Laugher v. Pointer, 5 B. & C. 547; Brucker v. Fremont, 6 T. R. 659; Powell v. Deveny, 3 Cush. 304, 305; Crockett v. Calvert, 8 Ind. 127; Act of the 19th of February 1849, § 13, supra; Act of 13th March 1847, § 1, Purd. 844, pl. 38, Pamph. L. 337; Rauch v. Lloyd & Hill, 7 Casey 365; Lane v. Bryant, 9 Gray 245; Reagan v. Grim's Administrator, 1 Harris 508; Potts v. Everhart, 2 Casey 493; Lincoln v. Saratoga & Sch. Railway, 23 Wend. 425; Fleming v. Beck, 12 Wright 309; Wade v. Haycock, 1 Casey 382; Heil v. Glanding, 6 Wright 499; Adams's Express Co. v. Egbert, 12 Casey 360; McKnight v. Radcliffe, 8 Wright 156; Redfield on Railways 347; Rogers v. Fales, 5 Barr 154; Railroad Co. v. Messino, 1 Smead. (Tenn.) 220; 18 U. S. Dig. 301, pl. 387.

J. L. Mayer, in reply, cited Haring v. N. Y. & Erie Railroad Co., 13 Barb. 15; 2 Hilliard on Torts 445, 447; 1 Greenl. Ev. § 13; Thalheimer v. Brinkerhoff, 4 Wend. 396; Bank of Munroe v. Field, 2 Hill 445; Story on Agency, §§ 135, 136; Farlie v. Hastings, 10 Ves. 128; Barker v. Benninger, 4 Kern. 271; Luby v. Hudson River Railroad Co., 17 N. Y. R. 133.

The opinion of the court was delivered, July 3d 1867, by AGNEW, J.

Upon a careful examination of the testimony in this case, it is impossible to shut our eyes to the fact that the jury were permitted to find a verdict for the plaintiff, contrary to the evidence and the instruction of the learned judge. But the remedy was by granting a new trial, and not a writ of error. Whatever may have been the negligence of the railroad company (and it is a question upon the evidence whether there was any), it seems to be very clear that Coyle the plaintiff approached the crossing of the railroad muffled up, sitting within the covered top of his wagon, taking no notice of the railroad, which he well knew, for he had often crossed it before, and drove slowly upon the track, without stopping or looking out, so far as anything in the evidence discloses the fact to us. It also shows that at this point a traveller passing in the direction Coyle was going cannot see up and down the track, in consequence of the position of Kohler's house, until he has gotten within sixteen feet of the track. It is very manifest, therefore, that Coyle was guilty of negligence in omitting to stop and look out for the cars.

But the court answered the first five points of the defendant, all bearing on the negligence of Coyle, in the affirmative, giving to the jury the proper instructions, which under the evidence ought to have led to a verdict for the defendants. The error was not that of the court, but of the jury, which ought to have been corrected by setting aside the verdict. This, however, admits of no remedy here.

The defendants complain, however, that the court qualified the answer to the 4th point in such manner as to mislead the jury. We cannot perceive any error. The judge did not qualify the instruction, but merely submitted the facts upon which the instruction rested. It is true that he also added that negligence is a fact to be decided by a jury from the whole evidence and all the circumstances, and is the want of that care which men of common sense and common prudence ordinarily exercise in their employment and business of life. But this in no wise qualified the instruction already given; especially that part of the answer to the 4th point which affirmed that if the jury believed Coyle neglected to take all or any of these precautions, but drove carelessly on to the crossing without stopping, paying no attention to any warnings which may have been...