Holt v. Pennsylvania Railroad Co.
| Decision Date | 25 May 1903 |
| Docket Number | 332 |
| Citation | 55 A. 1055,206 Pa. 356 |
| Parties | Holt, Appellant, v. Pennsylvania Railroad Company |
| Court | Pennsylvania Supreme Court |
Argued March 23, 1903
Appeal, No. 332, Jan. T., 1902, by plaintiff, from order of C.P. No. 5, Phila. Co., March T., 1901, No. 119, refusing to take off nonsuit in case of Thomas E. Holt v. Pennsylvania Railroad Company. Reversed.
Trespass to recover damages for personal injuries. Before DAVIS, J.
The facts are stated in the opinion of the Supreme Court.
Error assigned was refusal to take off nonsuit.
The assignments of error are sustained, and the judgment is reversed, and a venire facias de novo is awarded.
William G. Keir, for appellant. -- The many cases in Pennsylvania holding it contributory negligence for persons to pass along tracks longitudinally of railroad or trolley companies are invariably those of pedestrians, and there are no rulings whatsoever as to persons with horses and wagons. These foot passers in trolley car cases were walking on the tracks longitudinally in the street between curb lines, where they had no right to be. Their duty was to pass along bordering pavements.
The plaintiff in this case was in a wagon and his proper place was on the street. The entire street from curb to curb is the place of passage, and the territory of drivers and their teams subject no doubt to the paramount right of the trolley cars and freight trains when they give notice of their presence on the track behind. In Pennsylvania there are no reported cases strictly analogous to this. There are several however, in which railroads had been constructed on the beds of public streets, but in these cases the evidence shows they had lost all their identity as public thoroughfares and became completely "railroad highways" with no paving in connection with the railroad tracks. But indeed in these cases the trend of thought is clearly indicated as to the regard and consideration for the rights of the public on railroad tracks when they are laid in cities on ground that has even the slightest appearance of a public thoroughfare P. & R.R. Co. v. Long, 75 Pa. 257; Penna. R.R. Co. v. Lewis, 79 Pa. 33.
When we turn to other states, however, we find many cases identical with this one, and they all very forcibly hold, without a single exception, that where railroad tracks are laid upon a public street there remains in the public a right of "common user" with the railroad company, and citizens may pass across them and lengthwise, and not be considered trespassers or guilty of contributory negligence: Louisville, etc., R.R. Co. v. Phillips, 112 Ind. 59 (13 N.E. Repr. 132); Smedis v. Brooklyn, etc., R.R. Co., 88 N.Y. 13; Hegan v. Eighth Avenue R.R. Co., 15 N.Y. 380; Kansas Pac. Ry. Co. v. Pointer, 9 Kansas, 620.
John Hampton Barnes and George Tucker Bispham, for appellee. -- It is submitted that plaintiff was guilty of contributory negligence in three particulars:
1. In turning into the track without looking back immediately before he turned.
2. In not looking back after getting his wagon wheel over the rail of the railroad; and
3. In not turning to the left, into the open space of the paved street, where there was ample room to drive: Mulherrin v. Del., etc., R.R. Co., 81 Pa. 366; Pittsburg, etc., R.R. Co. v. Collins, 87 Pa. 405; Moore v. Penna. R.R. Co., 99 Pa. 301; Moore v. P.W. & B.R.R. Co., 108 Pa. 349; Loughrey v. Penna. R.R. Co., 201 Pa. 297; Gilmartin v. Transit Co., 186 Pa. 193; Smith v. Traction Co., 187 Pa. 110; Penman v. Ry. Co., 201 Pa. 247.
There was no sufficient evidence of negligence upon the part of the defendant. There was no evidence of improper speed: Yingst v. Railway Co., 167 Pa. 438; Kline v. Traction Co., 181 Pa. 276; Smith v. Railway Co., 187 Pa. 451; Custer v. R.R. Co., 19 Pa.Super. 365.
Before MITCHELL, FELL, BROWN, MESTREZAT and POTTER, JJ.
It appears from the evidence in this case that, upon a portion of Richmond street in Philadelphia, two tracks for a street railway, and one track for a steam railroad, are laid. The street railway tracks are in the center, and the railroad track is at one side. All the tracks are so laid with respect to the paving as not to impede the use of the street by vehicles and the general public.
The railroad track is used for the movement of freight trains only. The plaintiff was familiar with the locality, having driven over it frequently. Upon the afternoon of January 9, 1901, he was driving a horse and wagon, loaded with iron, going north upon the easterly track of the trolley road. When near Huntingdon street, a trolley car behind him rang its bell for him to clear its track. A south-bound trolley car was approaching him upon the other trolley track, and several wagons were in the space between the trolley tracks and the west side of the street. He therefore turned to the right, and over upon that portion of the street, where the railroad track of the defendant company was laid. He continued to drive along the street, with one wheel of his wagon between the rails of the railroad track, until the trolley cars behind him had passed. In this way he consumed about four minutes of time, and traveled about 140 feet. He was beginning to turn again to the left, in order to get back into the trolley track, as the way was then open for him to do, when his wagon was struck in the rear by a locomotive engine of the defendant company. The shock was not very severe, but it was sufficient to drive an iron shaft which lay in the wagon with considerable force against the plaintiff's back. To recover for resulting injuries this action was brought.
Upon the trial, the learned judge of the court below was of the opinion that the plaintiff was guilty of contributory negligence in driving upon the part of the street where the railroad track was laid, and in continuing there until his wagon was struck in the rear by the approaching engine. He therefore entered judgment of compulsory nonsuit, and his subsequent refusal to take it off is here assigned as error.
This is not a case of one turning into the track in front of an approaching train, and being immediately struck. If it were, the court below would unquestionably have been right in pronouncing it contributory negligence.
The plaintiff was occupying the portion of the street included between the rails for several moments before the accident and was driving slowly along, and was in the act of turning back into the trolley track when his wagon was struck by the engine. The case was tried in ...
To continue reading
Request your trial