Lederman v. Penna. Railroad

• Decision Date: 07 January 1895
• Docket Number: 38
• Parties: Julius Lederman et ux. v. Penna. Railroad, Appellant
• Court: Pennsylvania Supreme Court

30 A. 725

165 Pa. 118

Julius Lederman et ux. v. Penna. Railroad, Appellant

No. 38

Supreme Court of Pennsylvania

January 7, 1895

Argued May 14, 1894

Appeal, No. 38, Jan. T., 1894, by defendant, from judgment of C.P. Lancaster Co., Sept. T., 1891, No. 5, on verdict for plaintiffs. Affirmed.

Trespass for death of child. Before LIVINGSTON, P.J.

At the trial, it appeared that, on July 3, 1891, plaintiffs' son, a boy four years and eight months old, was killed at a point in the city of Lancaster where defendant railroad crosses diagonally the intersection of North Prince street and West Walnut street. No safety gates were maintained at the crossings, which were guarded by one watchman, a man some seventy-five years old. The boy was struck by two cars which had been detached from the seashore express in order to allow another car to be connected with that train ahead of them. The evidence as to the speed of the cars was conflicting. Some of the witnesses estimated it at ten and others at four miles an hour.

The child's mother testified as follows: "I am the wife of Julius, and mother of Sydney Lederman, lived at 36 East Walnut street, on July 3, 1891. I last saw my little boy when he left the dinner table about or near one o'clock, P.M. We ate in the dining-room. You go from it through the kitchen out in the yard. He said he was going out to where Harry Marshall was selling shooting crackers. He had been helping him all morning. Harry Marshall lived a few doors from us, on the same side of the street towards North Queen street. He went out the kitchen way, and out through the alley, and I didn't see him again until they brought his body home. I heard of his death about fifteen minutes after he left the house. . . . I had not sent Sydney on an errand. I did not direct him where to go. He went to Harry Marshall at his stand where he was selling shooting crackers to help him; it was just a stand for over July. On the 4th of November that year, he would have been five years old."

Walter McElroy, called by plaintiff, testified as follows: "I was accustomed to pass at that point, it was much used by pedestrians, the gates that are there now, they were not there at that time. Q. Were they, or not, erected there shortly after this accident?" Objected to, admitted and exception. [8]

The witness answered in the affirmative.

The court admitted, under objection and exception, an ordinance of the city of Lancaster forbidding trains to be run within the city limits at a greater speed than five miles an hour. [7]

John Keneagy, called by defendant, testified as follows: "I remember the accident, July 3, 1891, when the boy was killed. I was working on the railroad, was foreman of the floating gang, track men, west of Lemon street about 500 feet. I saw the seashore express go by, it was divided into two parts before it passed me and the front part was drawing away from the rear part. I could see the rear part go past Lemon street, after that I didn't look at it. I have been about the railroad for 14 years. Saw cars run and rode on them. Q. What, in your judgment, was the rate of speed of these two detached cars when they passed you, and what at Lemon street?" Objected to, disallowed and exception. [9]

The court charged in part as follows:

"[During the argument of the case reference has been made to the speed of those two detached passenger cars. With reference to which the testimony of witnesses differs, some fixing the rate as low as four miles an hour, some as high as ten miles, and the ordinances of the city of Lancaster have been cited and referred to as showing that running cars at a higher speed than five miles an hour, is negligence on the part of the company. This is an error; while it may be considered in ascertaining whether the train was being run negligently, or not, it is not per se evidence of negligence.] . . . .

"[The Supreme Court say, in a late case, that if a railroad company makes it safe for the public to cross on the highway, by gates, by watchman, or other means, it may run its trains at any rate of speed, but if it neglects to use every precaution necessary for the safety of the public, no moderation of speed will excuse its neglect.]" [6]

Defendant's points were among others as follows:

"2. The ordinance given in evidence, limiting the rate of speed of cars and trains on any railroad within the limits of the city of Lancaster to five miles an hour, is unreasonable and invalid, and does not make a higher rate of speed of cars or trains in or through said city unlawful, or evidence of negligence on the part of a railroad company using such higher rate of speed. Answer: It is not necessary in this proceeding to consider whether or not the ordinance referred to is unreasonable and invalid or not. While it is not per se evidence of negligence in a railroad company, if it should run its cars at any higher rate of speed than five miles per hour, it may be taken into consideration by the jury, with other evidence, in ascertaining whether or not the cars on July 3, 1891, were run at too high and dangerous a rate of speed where this accident occurred." [1]

"3. As there was a watchman attending to and performing his duties at Prince street and Walnut street, where the defendant's railroad crosses said streets, and there was a brakeman performing his duties, on the front end of the front car of the two detached cars that ran over Sidney Lederman on Walnut street, there is no evidence of negligence on the part of the defendant as to the running or movement of said cars across said streets. Answer: The facts set forth in the 3d point are under the evidence in the cause for the jury and we leave them with the jury, to say whether there was negligence." [2]

"5. There is no sufficient evidence that the speed of the said two detached cars at Walnut street was improper or dangerous or that the accident to the boy was the result of any improper or unreasonable speed of said cars. Answer: The matter contained in 5th point is for the jury. We leave it with them." [3]

6. Request for binding instruction. Refused. [4]

Verdict and judgment for plaintiffs for $1,800.

Errors assigned were (1-6) instructions; (7-9) rulings; quoting bills of exception, evidence and instructions.

Judgment affirmed.

H. M North, E. D. North with him, for appellant. -- The contributory negligence of the parent precluded recovery: Rauch v. Lloyd, 31 Pa. 358; Smith v. O'Connor, 48 Pa. 218; Kelly v. R.R., 31 Pa. 376; Glassey v. R.R., 57 Pa. 172; Mahoney v. R.R., 57 Pa. 187; R.R. v. Hummell, 44 Pa. 375; R.R. v. Spearen, 47 Pa. 300; Kay v. R.R., 65 Pa. 269; R.R. v. Lewis, 79 Pa. 33; Ry. v. Connell, 88 Pa. 520; R.R. v. Schwindling, 101 Pa. 258; Gillespie v. McGowan, 100 Pa. 144; Rodgers v. Lees, 140 Pa. 475; Cauley v. R.R., 95 Pa. 398: R.R. v. Heil, 5 W.N. 91; R.R. v. Morgan, 82 Pa. 134; Bridge Co. v. Jackson, 114 Pa. 321; R.R. v. Moore, 99 Pa. 301; Wood-bridge v. R.R., 105 Pa. 460; McCool v. Coal Co., 150 Pa. 638; Chilton v. Traction Co., 152 Pa. 425; Patterson's Ry. Accident Law, §§ 79, 80; Ray on Negligence of Imposed Duties, § 196; 1 Sherman & Redfield, Neg. §§ 70-73.

The ordinance given in evidence was unreasonable, and the court has power to declare it void: Kneedler v. Norristown, 100 Pa. 368; Millerstown v. Bell, 123 Pa. 151.

The court should not have permitted plaintiff to prove that gates were erected shortly after the accident at the place where it occurred: Patterson's Ry. Accident Law, §§ 365.

The court should have held, as a matter of law, that plaintiffs were guilty of contributory negligence: R.R. v. Pearson, 72 Pa. 169; R.R. v. Long, 75 Pa. 257; Smith v. R.R., 92 Pa. 450; 1 Weimer on Railroads, 755, § 474.

W. U. Hensel, J. Hay Brown with him, for appellee. -- There was no evidence of contributory negligence on part of plaintiffs: R.R. v. Long, 75 Pa. 257; R.R. v. Pearson, 72 Pa. 172; Kay v. R.R., 65 Pa. 276.

In cases of infants and children of tender years, if the evidence shows negligent conduct by defendant it is for the jury to determine whether such negligence caused the accident: Summers v. Brewing Co., 143 Pa. 114; Ry. v. Steinhart, 2 Penny. 358; Ry. v. Caldwell, 74 Pa. 421; Schnur v. Traction Co., 153 Pa. 29; Pa. Co. v. James, 81* Pa. 194.

Railroad companies owe special duties to the public at street crossings: R.R. v. Hummell, 44 Pa. 378; Pa. Co. v. James, 81* Pa. 202; Westerberg v. R.R., 142 Pa. 473; R.R. v. Lewis, 79 Pa. 33; R.R. v. Long, 75 Pa. 257; Reinike v. Traction Co., 13 Pa. C.C.R. 229; Patterson on Ry. Accident Law, §§ 158, 170; Lott v. Ry., 159 Pa. 474; Gilmore v. Ry., 153 Pa. 31; Haney v. Traction Co., 159 Pa. 398; Altoona etc. R.R. v. Tyrone etc. R.R., 160 Pa. 623; Powell v. R.R., 22 Hun, 56; Frick v. R.R., 5 Mo. Ap. 435; Barry v. R.R., 92 N.Y. 289; McMillan v. R.R., 46 Iowa 231; Hicks v. R.R., 64 Mo. 430; Williams v. R.R., L.R. 9 Exch. 157; Smith v. R.R., 25 Kan. 738; Frick v. R.R., 75 Mo. 542; Johnson v. R.R., 49 Wis. 529; Butler v. R.R., 28 Wis. 487; Ewen v. R.R., 38 Wis. 613; Farley v. R.R., 9 N.W.R. 230; Cheney v. R.R., 16 Hun, 415; Townley v. Ry., 53 Wis. 634; Daley v. R.R., 26 Conn. 591; Johnson v. Ry., 49 Wis. 529; R.R. v. Becker, 84 Ill. 483; Hart v. Devereux, 41 Ohio 565; Lynch v. Smith, 104 Mass. 52.

It was negligence in the company to operate its road at this point without gates; and it seems to have recognized this by erecting them there soon afterwards.

Defendant company was guilty of negligence in not stationing watchmen of sufficient number and capacity at this place of danger: Patterson on Ry. Accident Law, §§ 165, 167.

Defendant company was negligent in running detached cars without bell whistle or other signal across these crossings at a rate of at least eight or ten miles per...