P. & R. Railroad Co. v. Hummell

• Decision Date: 02 March 1863
• Court: Pennsylvania Supreme Court
• Parties: The Philadelphia and Reading Railroad Company <I>versus</I> Hummell.

Page 375

44 Pa. 375

The Philadelphia and Reading Railroad Company versus Hummell.

Supreme Court of Pennsylvania.

March 2, 1863.

ERROR to the District Court of Philadelphia.

COPYRIGHT MATERIAL OMITTED

J. F. Johnson, for plaintiff in error.

Franklin B. Gowen, James E. Gowen, and Samuel Hood, for defendants in error.

The opinion of the court was delivered, March 2d 1863, by STRONG, J.

There is but a single question in this case. It is whether any evidence was given at the trial tending to prove that the hurt of the plaintiff was caused by the negligence or want of ordinary care of the defendants. All other questions were correctly disposed of by the learned judge who presided in the District Court. What is ordinary care, and what is negligence, are inquiries, in most cases, to be answered by a jury; but negligence is not to be found without evidence. There is always a presumption against it, and therefore a plaintiff who asserts it, and avers that he has received an injury in consequence of it, must always adduce proof that the defendant did not exercise ordinary care. If no such proof be adduced, the presumption of innocence remains, and it is error to submit to the jury the question whether there was negligence.

What, then, was the evidence? The accident by which the plaintiff was hurt occurred on a railroad, not at any street or crossing, but where neither the plaintiff nor any other persons except the agents of the railroad company had any right to be. The defendants were doing what it was their right and their duty to do; the cars were moving slowly by their own gravity, yet so perfectly under the control of the engineer that they could be immediately stopped, and the plaintiff was not injured by starting the cars, but by his coming upon the track and getting under them while they were in motion. Passing by now the affirmative proof of prudence and caution exercised by the defendants with which the case abounds, and admitting that the carelessness of the plaintiff is not a bar to his recovery, because he is a child, we ask what did the defendants leave undone which ordinary care required them to do? The only alleged omission is, that the whistle of the engine was not blown, and no signals given to the people in the neighbourhood that the cars were about to start, or that they were in motion. No other evidence of negligence is pretended.

It is time it should be understood in this state, that the use of a railroad track, cutting, or embankment, is exclusive of the public everywhere, except where a way crosses it. This has more than once been said, and it must be so held, not only for the protection of property, but, what is far more important, for the preservation of personal security, and even of life. In some other countries it is a penal offence to go upon a railroad. With us, if not that, it is a civil wrong of an aggravated nature, for it endangers not only the trespasser but all who are passing or transporting along the line. As long ago as 1852 it was said, by Judge Gibson, with the concurrence of all the court, that "a railway company is a purchaser, in consideration of public accommodation and convenience, of the exclusive possession of the ground paid for to the proprietors of...