Lockhart et al. v. Lichtenthaler et al.

• Decision Date: 25 February 1864
• Citation: 46 Pa. 151
• Court: Pennsylvania Supreme Court
• Parties: Lockhart <I>et al. versus</I> Lichtenthaler <I>et al.</I>

46 Pa. 151

Lockhart et al. versus Lichtenthaler et al.

Supreme Court of Pennsylvania.

February 25, 1864.

ERROR to the Common Pleas of Allegheny county.

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Woods & Hampton, for plaintiffs in error.

Marshall & Brown, for defendants in error

The opinion of the court was delivered, February 25th 1864, by THOMPSON, J.

This was an action against the defendants below by the widow and children of John Lichtenthaler, under the Acts of Assembly of 1851-55, to recover damages for occasioning his death by negligence. The allegations in substance are, that the workmen or servants of the defendants, in and about their business, so carelessly and negligently conducted themselves, in placing certain oil casks so near the track of the Allegheny Valley Railroad, that a portion of the train of cars on which the deceased was at the time a passenger in charge (the private property of his employers), was, by reason of striking the casks, thrown off the track, and the deceased crushed to death.

To this charge, defendants pleaded not guilty, with leave to add, alter, or amend at bar, and gave evidence to show negligence on the part of those in charge of the train of cars, in running at a dangerous rate of speed, in view of the circumstances of the road at the time, and of the manner in which the train was made up.

It might be questionable whether such a defence as concurrent negligence in the agencies producing the death, if it be a defence at all, could be heard without being specially pleaded; but this objection was not interposed below nor here, and we will not consider it in what we have now to say. Indeed, all question on this score was put out of the case by the learned judge ruling, and afterwards charging, that if the disaster resulted either solely from the acts of the defendants, through their servants, or concurrently with those in charge of the train, in either event, the plaintiffs would be entitled to recover.

This is a point not without difficulty. Wide differences of opinion appear between judges in England as well as in the United States, in regard to it, some of which we propose to notice.

And in the outset, I may say, that measured by the preponderance of authority, I think the charge was clearly wrong. That preponderance as certainly proves that in cases of injury to a third person arising from the mutual negligence of colliding carriages, trains, boats, or vessels, the carrier vehicle, by which I mean that on which the injured party is, must answer for the injury. I cannot doubt but that the deceased, in the case in hand, as he was not a servant of the railroad company, must be considered in the light of a passenger, in charge of property being conveyed with himself by the railroad company for his employers. This raises the inquiry, whether the rulings and charge of the court below were correct as to the law of this case.

The first English case I find on the point is Vanderplank v. Miller, 1 Mood. & Malk. 169, tried before Lord Chief Justice Tenterden, in 1828. It was for damage to goods on board a vessel, occasioned by a collision. The owner of the goods sued the owners of the colliding vessel, and the defence set up was negligence on the part of the carrying vessel also. His lordship charged, that if there was want of care on both sides, the plaintiffs cannot maintain their action. "To enable them to do so, the accident must be attributable entirely to the fault of the crew of the defendants." This decision appears to have been acquiesced in, for it does not seem to have been carried further.

The same thing was ruled in the Court of Exchequer, in 1838, in Bridge v. The Grand Junction Railway, 3 M. & W. 247, before Lord Ch. B. Abinger, and Barons Parke and Bolland. That was a suit for a personal injury. The plaintiff was a passenger on the Liverpool and Manchester train, and was injured by a collision between that and the train of the defendants. It is true, the case finally went off on a question of pleadings. But the question was, whether the defendants' plea sufficiently raised the question of concurrent negligence, and as it did not, there was a recovery against the defendants. The doctrine that mutual negligence throws the responsibility on the carrying party, was fully admitted in the opinions of their lordships. The next cases which occur, involving the question, are Thoroughgood v. Bryan, and Catlin v. Hills, reported consecutively at pages 114 and 123, 65 Eng. Com. Law. The point was decided in 1849, in Common Bench, on rules for new trials. The former had been tried at Nisi Prius, before Sir Cresswell Cresswell, and the latter before Williams, J.

The first was an action against the owner of an omnibus, for the negligence of his driver, in killing a passenger alighting in the street from another omnibus. The other case was for an injury resulting to a passenger from a collision between two Thames river steamers, by which the plaintiff lost a leg. In both, the non-carrying party was sued, and the defence was negligence on the part of the carriers. The rules were separately argued on the same day by different counsel, and held under advisement for some time. Seriatim opinions were delivered on disposing of the motions, from which we extract pretty copiously.

Coltman, J., said: "The case of Thoroughgood v. Bryan seems distinctly to raise the question, whether a passenger in an omnibus is to be considered so far identified with the owner, that the negligence on the part of the owner or his servant is to be considered the negligence of the passenger himself. If I understand the law upon the subject, it is this: that a party who sustains an injury from the careless or negligent driving of another may maintain an action, unless he has himself been guilty of such negligence or want of care, as to have conduced to the injury. In the present case, the negligence that is relied on as an excuse, is not the personal negligence of the party injured, but the negligence of the driver of the omnibus in which he was a passenger. But it appears to me that, having trusted the party by selecting the particular conveyance, the plaintiff has so far identified himself with the owner and his servants, that if injury result from their negligence, he must be considered a party to it. In other words, the passenger is so far identified with the carriage in which he is travelling, that want of care on part of the driver, will be a defence of the owner of the carriage which directly caused the injury."

Maule, J., said: "It is suggested that a passenger in a public conveyance has no control over the driver. But I think that cannot with propriety be said. He selects the conveyance; he enters into a contract with the owner, whom, by his servant the driver, he employs to drive him. If he is dissatisfied with the mode of conveyance, he is not obliged to avail himself of it. According to the terms of his contract, he unquestionably has a remedy for any negligence on the part of the person with whom he contracts for the journey. It is somewhat remarkable, that actions of this sort are almost always brought against the rival carriage or vessel, which is only to be accounted for by the party spirit, which more or less enters into every transaction in life. If there is negligence on part of those who contract to carry the passenger, those who are injured have a clear and undoubted remedy against them." Short opinions were delivered by the other judges to the same effect.

At a subsequent day, when, as the report shows, the court were about to discharge the rule in Catlin v. Hills, they were informed that the case had been compromised, and no order was made. The authority of Bridge v. The Grand Junction Railway (supra) was cited and recognised in both cases.

The next English cases to be noticed are Rigby v. Hewet, and Greenland v. Chaplin, determined in 1850 and consecutively reported, like the last two, in 5 Exchequer 239-243. They seem opposed to the doctrine just cited. The opinion of Ch. B. Pollock is not very lucid, and although he seems to assert an opposite doctrine, yet the judgments in both cases were affirmed, while in one tried before Baron Rolfe he certainly did lay down the rule as held in the Common Pleas, at least in one of the aspects of the case. I think, however, the rule announced in the Exchequer stands opposed to the doctrine that concurrent negligence on part of the passenger's vehicle with that of the party sued, is a defence. There is quite a similarity in the general features of these two cases and those in the Common Pleas. Both sets were argued together and reported consecutively in their respective reports. One case of each set was for injuries occurring by negligence of omnibus drivers, and one of each for injuries from collisions between Thames steamers, the injury...