Pennsylvania Railroad Co. v. Morgan

• Decision Date: 10 October 1876
• Citation: 82 Pa. 134
• Parties: Pennsylvania Railroad Company <I>versus</I> Morgan.
• Court: Pennsylvania Supreme Court

82 Pa. 134

Pennsylvania Railroad Company versus Morgan.

Supreme Court of Pennsylvania.

May 18, 1876.

October 10, 1876.

May 18th 1876.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON, and WOODWARD, JJ. WILLIAMS, J., absent

Error to the Common Pleas of Blair county: May Term 1876, No. 27.

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D. J. Neff, for plaintiff in error, cited Telfer v. Northern Railroad Co., 1 Vroom 188; Bannon v. B. & O. Railroad Co., 24 Md. 108; s. c. 5 Am. Law Reg. 477; P. & R. Railroad Co. v. Spearen, 11 Wright 300; C., B. & Q. Railroad Co. v. Stumps, 55 Ill. 367; Singleton v. Eastern Counties Railway Co., 7 C. B. N. S. 287; Wright v. Mald. & Mel. Railroad Co., 4 Allen 283; Glassey v. Hestonville Pass. Railroad Co., 7 P. F. Smith 172; Pitts., All. & Manch. Railroad Co. v. Pearson, 22 Id. 169.

S. S. Blair, for defendant in error.

Chief Justice AGNEW delivered the opinion of the court, October 10th 1876.

The charge of the judge in this case is so generally fair and accurate we feel some difficulty in coming to a conclusion which results in a reversal. But by inadvertence, or possibly a slight confusion, he seems to have fallen into an error, which excluded the defence from its only probable ground of success. We concur in the view of the judge, that the foot of the plaintiff must have been caught in the space left for the flange of the car-wheels, between the rail and the inner plank of the crossing; and therefore that the injury arose from no defect in the construction of the crossing. The plaintiff's case evidently depended on the second branch of alleged negligence, to wit: in running the train at an immoderate rate of speed in disregard of the place and the circumstances of the occurrence. The judge rightly charged that negligence was a question for the jury, to be decided upon the circumstances in evidence. His error was a substantial denial of this principle in a subsequent part of the charge. The witnesses for the defendants testified that the speed of the train was not too rapid, but only at the rate of about five or six miles an hour; that the train was fully under control, the hands in their proper places; that the train could be stopped in a space less than its own length, and in fact was stopped before the engine, at the rear end of the train, had reached the crossing; that when the children were seen on the crossing the flagman on the front car hallooed to them, and they started to run off, the boy running straight across the track, and the girl obliquely; that, to every appearance, they knew their danger and were likely to avoid it, the boy escaping entirely, and the girl (the plaintiff) reaching the rail and apparently passing off. In a moment or two the flagman saw that the child was fast, and heard her hallooing, and gave the signal for stopping immediately to the engineer, who reversed his engine, and whistled down-brakes. At this time the front car was between one hundred and one hundred and twenty feet from the crossing. Mrs. Morgan, the mother of the child, hearing the cries of the child and of her neighbor, Mrs. Meinthal, ran a distance of sixty feet, and Mrs. Meinthal a distance of one hundred feet, to the child, and made three or four attempts to extricate the foot before the cars reached the crossing, and the mother then held her body out from the track while the wheel pushed the foot out, leaving the shoe in the crevice. The wheels were sliding under the influence of the brake, otherwise, if turning, all the evidence shows that the foot would have been cut off. These facts are also strong evidence of the slow speed of the train, Mrs. Meinthal having run nearly as far as the train had to go, when the signal for down-brakes was given. Under these circumstances, the defendants contended that no duty lay upon those having charge of the train to come to a full stop until it was discovered that the little girl's foot was caught, or for some reason she could not escape, as appearances had indicated she would; and then, that everything...