Pennsylvania R. Co. v. Mooney

• Decision Date: 06 May 1889
• Docket Number: 239
• Citation: 17 A. 590,126 Pa. 244
• Parties: PENN. R. CO. v. MARGARET MOONEY ET AL
• Court: Pennsylvania Supreme Court

17 A. 590

126 Pa. 244

PENN. R. CO. v. MARGARET MOONEY ET AL

No. 239

Supreme Court of Pennsylvania

May 6, 1889

Argued April 10, 1889

ERROR TO THE COURT OF COMMON PLEAS NO. 3 OF PHILADELPHIA COUNTY.

No. 239 January Term 1889, Sup. Ct.; court below, No. 332 December Term 1883, C.P. No. 3.

On January 5, 1884, Margaret Mooney and others, as the widow and children of Thomas Mooney, deceased, brought an action in case against the Pennsylvania Railroad Company, to recover damages for injuries inflicted by the defendant company causing the death of said Thomas Mooney. Issue.

At the trial on October 4, 1888, the case presented was to the effect that Thomas Mooney, on February 14, 1883, the date of the accident, was foreman of a gang of laborers, who for some time before the accident, had been engaged in laying an additional track upon the line of the railroad. At the time of the accident, their work had progressed to a point between Bristol and Tullytown. On the morning of the accident the gang had started to walk along the track from Bristol to the point at which they were to continue their work. They were scattered along the track in small groups. Before reaching the point at which they were working they would cross over Green Lane, a highway of the county. Mooney was walking with Michael Welsh, a co-laborer. When within about fifteen yards of Green Lane, Mooney gave his dinner-kettle to Welsh and stopped behind some ties that were piled up along the railroad. Welsh continued on, walking up the track. The next that was seen of Mooney was by another laborer, Patrick Archer, who saw Mooney as "he was just about in the act of stepping across the crossing," when he was struck by a coming train and killed. Testimony was introduced to show that smoke from another locomotive hugged the ground and obscured the vision; that there was a siding upon which other cars were standing, which also prevented a view of the approaching train; that the morning was dark and foggy, the accident occurring between 6 and 7 o'clock; and that the crossing was wholly unprotected by gate, flagman or bell, no warning or signal whatever being given by the approaching train. There was no conflict in the testimony, upon the facts sought to be established.

The defendant company requested the court to charge, inter alia:

6. Under all the evidence in this case your verdict must be for the railroad company defendant.

The court, FINLETTER, P.J., refused the foregoing point, as requested, and charged the jury as follows:

In this case the plaintiff cannot recover unless it should appear from the evidence, first, that the defendants through their employees were negligent, and also unless it should appear from all the testimony in the case that Mr. Mooney on that occasion was not negligent. It becomes important, therefore for you to understand exactly what the duty of the defendants in using their railway upon that occasion was.

It is their duty to use all reasonable means to protect the general public from injury in consequence of their using their railway, or the manner in which they use it. The manner in which those employed in running an engine of this kind, you will see, depends very much, therefore, upon the circumstances of the case. Less care is required where little or no travel can reasonably be expected, than where from the nature of the locality and its surroundings people may reasonably be expected to be.

At a public crossing there should always be some notice given to the traveling public of the approach of the coming trains. Even this notice you will see depends to a certain extent upon circumstances. These circumstances would be the rate of speed at which the train was going, the locality in which the accident may have happened, the obstructions which might prevent a clear or a distinct view. In considering the question of the negligence of the defendant, you will therefore consider carefully the locality of this accident the manner in which the train was running, the condition of the atmosphere as it may have been affected by the smoke, the obstructions, if any, upon the track, the effect of the passing coal train as affecting the noise of the train which killed Mr. Mooney, and especially what those who were running this train did or omitted to do to give notice to those who might be about to cross the track on that public crossing.

In your inquiry it might be important to fix precisely the spot at which Mr. Mooney was struck. For this purpose you have the evidence of the witnesses who were there and saw the accident. In addition to this you have the surrounding circumstances. First, you have the marks of the heel of the shoe at or near the crossing. Now, if the evidence shows that these marks were made by Mr. Mooney at the time he was struck it would perhaps be conclusive of his position when he was struck; but if this evidence does not prove this, it proves nothing in this case, and should be disregarded by the jury. It is, however, in evidence that Mr. Mooney's body was found ninety feet from the crossing, and it must be taken as an undisputed physical fact that when two objects in motion meet, the heavier and swifter will move the lighter one. If therefore, Mr. Mooney was struck at the crossing he would have been moved some distance by the heavier and swifter engine and train. That distance would depend upon the weight of the engine and train and the velocity with which it was driven. These are facts which you should carefully consider in fixing or attempting to fix the point at which Mr. Mooney was struck.

If you are satisfied from the evidence that the employees of the defendant were negligent, then you must determine the question whether Mr. Mooney himself was negligent or not. If he were crossing the railway at the public crossing, then it was his duty before he attempted to cross, to stop and look and listen. If the smoke and standing cars obstructed his vision, if the passing train obscured his hearing, these facts required him to be the more careful in stopping and looking and in listening. As there are no witnesses who saw Mr. Mooney immediately before he was struck, and no evidence of his acts at that time, the law presumes that he stopped and looked and listened.

If you are satisfied, upon a careful consideration of the testimony that the defendants were negligent, which negligence in any manner produced the death of Mr. Mooney, and that Mr. Mooney himself was not negligent on that occasion, then the question of damages arises and you must determine it.

* * *

The jury returned a verdict in favor of the plaintiff for $8,000. A rule for a new trial having been discharged, judgment was entered on the verdict, when the defendant took this writ and assigned as error, inter alia:

7. The refusal of the defendant's sixth point.

Judgment reversed.

Mr. David W. Sellers (with him Mr. Garvin W. Hart), for the plaintiff in error:

1. Mooney was in the employ of the railroad company, and at the time of the accident he was walking along the track to his work. The fact that he was struck at a crossing, does not of itself prove that his rights were those of a pedestrian using a highway to cross the track. He had been walking along the track; his ultimate destination was still along the track, but at a point beyond Green Lane. The fact that he was struck at the crossing is immaterial. The reason that he was struck was because he was using the track longitudinally. Had he been upon Green Lane before the accident, using it as a citizen traveling on a highway to approach the railroad, a different question would arise, but he was clearly there as a workman. No evidence has been offered on this, except that "he was just in the act of stepping across the crossing." For what purpose? To get to a point still farther along on the railroad. That is, he was using the track to cross the highway. If he were a trespasser then the company owed him no duty.

2. Except at crossings where the public have a right of way, a man who steps his foot upon a railroad track does so at his peril. The company have not only a right of way, but such right is exclusive at all times and for all purposes. This is necessary not only for proper protection of the company's rights, but also for the safety of the traveling public. It is not right that the lives of hundreds of persons should be placed in peril for the convenience of a single foolhardy man who desires to walk upon the track: Mulherrin v. Railroad Co., 81 Pa. 366, affirming Railroad Co. v. Norton, 24 Pa. 465; and affirmed in Pittsb. etc. Ry. Co. v. Collins, 87 Pa. 405; Cummings v. Railway Co., 92 Pa. 82; Cauley v. Railway Co., 95 Pa. 398; Cauley v. Railway Co., 98 Pa. 498, and Moore v. Railroad Co., 99 Pa. 301. Mooney's business called him to work on the railroad. To get there it necessitated the use of the track as a passageway. He used the track, his intention and object being to go to the point of the road upon which he was to work. While using it in furtherance of this intention the accident occurred. Clearly within the reasoning of the case of B. & O.R. Co. v. Colvin, 118 Pa. 230, he cannot recover; otherwise a man engaged in repairing a track at a crossing has a different right from him who is rapeiring elsewhere.

3. There was no conflict of testimony in this case. The circumstances of the accident had been detailed by three witnesses, whose testimony together made up the entire account, no one of them having seen all. No testimony was offered on the part of the railroad company, and the matter then became one of law and exclusively for the court. The cases as to this proposition are legion, the last being Del. L. & W.R. Co. v. Cadow, 120 Pa. 559:...