Kay v. Pennsylvania Railroad Co.

• Decision Date: 05 May 1870
• Parties: Kay <I>versus</I> The Pennsylvania Railroad Co.
• Court: Pennsylvania Supreme Court

Page 269

65 Pa. 269

Kay versus The Pennsylvania Railroad Co.

Supreme Court of Pennsylvania.

April 2, 1870.

May 5, 1870.

April 2d 1870.

Before THOMPSON, C. J., AGNEW and SHARSWOOD, JJ. READ, J., at Nisi Prius

Error to the Court of Common Pleas of Lycoming county: No. 345, to January Term 1870.

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W. H. Armstrong and S. Linn, for plaintiffs in error.—It is admissible in an action against a railroad company to prove negligence in their servants: 1 Redfield on Railways 552 et seq. Negligence is a question for the jury: Pierce on Railroads 282; Huyett v. The Railroad Company, 11 Harris 373; Railroad Company v. Doak, 2 P. F. Smith 379; Shearman and Redfield on Negligence 9, 10 and note 2; P. & R. Railroad Company v. Spearen, 11 Wright 300; Frankford & B. Turnpike v. Phila. & Trenton Railroad, 4 P. F. Smith 350. A child will not suffer from the parents' neglect: Smith v. O'Connor, 12 Wright 218; Rauch v. Lloyd, 7 Casey 358; Penna. Railroad v. Kelley, Id. 372; Mangam v. Brooklyn Railroad, 36 Barbour 230; Shearman and Redfield on Negligence, § 48-52; Chiles v. Drake, 2 Metc. (Ky.) 149. Under the allowance of a way across their track, the defendants were bound to use reasonable care; and this was for the jury: Barrett v. Midland Railway Co., 1 Foster & Finl. 361; Reg. v. Broke, Id. 514; Bateman v. Bluck, 18 Q. B. 870; Glenn on Highways 135; British Mus. v. Finnis, 5 C. & P. 460. The cause of action arose July 1864; the Act of 1868 could not divest it: Const. U. States, Art. 1, § 10; Const. Penna. Art. 9, § 11, 17; Bedford v. Shilling, 4 S. & R. 401; Dash v. Van Kleck, 7 Johns. 477; Tillman v. Lansing, 4 Id. 45; Kenyon v. Stewart, 8 Wright 192; Gordon v. Inghram, 1 Grant 152; Jackson v. Lamphire, 3 Peters 280; Dartmouth College v. Woodward, 4 Wheaton 518; Green v. Biddle, 8 Id. 1; Bronson v. Kinzie, 1 Howard 311; McCracken v. Hayward, 2 Howard 608; Hedges v. Rennaker, 3 Metc. (Ky.) 258; Thorn v. St. Francisco, 4 Cal. 127; Nelson v. Jefferson, 13 Iowa 181; Smith's Const. Law, § 366, and cases cited, § 149 et seq.; Sedgwick on Stat. and Const. Law 413.

H. C. Parsons and H. T. Beardsley, for defendants in error.— As to the plaintiff being chargeable with the parents' negligence, Rauch v. Lloyd, 7 Casey 371; Shearman & Redfield on Negl. 51; Balfour v. Baird, 30 Jur. 124; Railroad v. Spearin, 11 Wright 303; Railroad v. Hummel, 8 Id. 377.

The opinion of the Court was delivered, May 5th 1870, by AGNEW, J.

In giving judgment for the defendants non obstante veredicto, the learned judge took the question of negligence away from the jury. He did this by deciding that the railroad company was in the lawful use of its track, and that the plaintiff was a trespasser. This left out of view two aspects of the case to be found in the evidence — the public use of the ground permitted by the company, and the manner of the accident. The ground was a large open lot traversed by railroad sidings and a canal basin. It was leased by the defendants from another railroad company which used it for the purpose of piling and loading lumber; the railroad tracks and canal basin being nearly parallel and in close proximity. The lot lay in Williamsport, adjacent to large saw-mills, where an immense lumbering business is done. In consequence of this business, teams were crossing the lot, and hands engaged in handling the lumber, and the public were permitted to pass to and fro upon it, and along the track where the accident happened a well-worn foot-path was plainly visible.

Children were often to be found there. The siding upon which the plaintiff was injured left the main lumber track and followed the bend of the canal basin, curving considerably at this point. The plaintiff, a child but nineteen months old, lived with her parents in a small shanty on this lot, occupied without objection by the railroad company, and lying between the main track and siding, at about one hundred and forty-two feet from the place of the accident. The injury took place about eight o'clock in the morning of a summer day, and was caused by detaching a lumber car, propelled in advance of the engine, and sending it around the curve in the siding, on a slight down grade, unattended by a brakesman. After running over the child the car was carried by its own momentum about one hundred and seventy feet beyond the place of injury. At the point on the main track where the car was detached from the engine to run through the opened switch out upon the siding, the siding where the child was injured was not visible to the engineer or conductor on the engine, in consequence of the curvature of the track along the canal basin, and of intervening piles of lumber. The parents of the child were poor, and the mother was employed that morning in washing for herself and others. She had gone out over the track to the canal for water, carrying the child on her arm and the bucket in her other hand. Returning she set the child down before a chair with some sugar placed upon it, and engaged again in washing. In three or four minutes she missed the child, which had passed out unobserved. She ran out, called the child, ran around the house and met the conductor carrying the child in his arms. Both of its arms were crushed and had to be amputated. This is a concise statement of the case on part of the plaintiff.

Conceding the right of the railroad company to the exclusive use of its tracks over the lot, as the learned judge held; the true question is whether the circumstances created a different duty. The ownership of the lot gave to the company the right to use it as most convenient and expedient in moving its cars; and no one can gainsay the right to detach and send cars ahead without a brakesman, even out of sight and around a curve. But the case is altered when, by a license to others, they have devoted this ownership to a use involving their interests and their safety; and by sufferance permitted the public to enjoy a privilege of passage which might bring their persons into danger. Duties grow out of circumstances, the authorities tell us, and that which in one case would be an ordinary and proper use of one's rights may, by a change of circumstances, become negligence and a want of due care: Reeves v. Del. L. and W. Railroad Co., 6 Casey 461; Phila. and Read. Railroad v. Spearin, 11 Wright 305; Smith v. O'Connor, 12 Id. 222; F. and M. Turnpike Co. v. Phila. and Trenton Railroad Co., 4 P. F. Smith 350; Shearman & Redfield on Neg., § 11. Culpable negligence is the omission to do something which a reasonable, prudent and honest man would do, or the doing of something which such a man would not do under all the circumstances surrounding the particular case: Shearman & Redfield on Neg., § 7. In many cases the law gives no better definition of negligence than the want of such care as men of ordinary prudence would use under similar circumstances: Id., § 11. If, therefore, an owner of property has been accustomed to allow to others a permissive use of it, such as tends to produce a confident belief that the use will not be objected to, and therefore to act on the belief accordingly, he must be held to exercise his rights in view of the circumstances so as not to mislead others to their injury, without a proper warning of his intention to recall his permission: Barrett v. Midland Railway Co., 1 Foster & Finlason 361; Bateman v. Bluck, 18 Q. B. 870. Notice, says Rogers, J., is required to a man who acts bonâ fide, not to him who wilfully and obstinately persists in using that to which he has no title or pretence of title: Hepburn v. McDowell, 17 S. & R. 384. Persons who use their property, so as to hold forth an invitation to others to enter, give a license to do so, for instance, innkeepers, merchants, &c. Even trespasses will ripen into right by sufferance and lapse of time, as a way used for twenty-one years. And a parol license accompanied with an expenditure of money will estop without lapse of time: Lefevre v. Lefevre, 4 S. & R. 241; Rerick v. Kern, 14 Id. 267. Toleration is therefore not to be overlooked in testing a man's right to the use of his property.

In the present case the railroad company, for the benefit of trade resulting to its own profit, built its tracks along the canal basin, and left its lot open for the convenient access of the public in the handling of lumber, and transferring it to the cars upon its tracks. And the lot being thus open to all engaged in that business, it also suffered its tracks to be used by the neighboring population as a way across the lot from one part of the city to another. As a consequence, people passed and repassed upon the tracks, and the company and its servants would be led to expect to find them there at nearly all hours of the day. It is not like those portions of the road used solely for the passage of trains, where the company would have not only a right to demand, but reason to expect a clear track. But the presumption of a clear track at this place could not reasonably arise if the circumstances were such as have been stated. A greater precaution against injury to those thus permitted to use the lot and the tracks of the company became a duty.

This brings us to inquire into the particular conduct which led to the injury of the plaintiff; and whether it was a prudent and proper use of the track to detach and send the unattended car forward in the manner stated? It seems to us it was negligence. Certainly no prudent, reasonable and honest-minded man could think it unattended with danger to persons liable thus to be found on the track to send a car out of sight around a curve on a down grade, uncontrolled and unattended by any one capable of checking it in case of danger. Its only purpose was to save a few hundred feet of travel to the engine by detaching it from the car when in motion, and stopping the engine before it reached the switch, in order to permit it to run forward on the main track to hitch on...