Pennsylvania Railroad Co. v. Lewis

• Decision Date: 24 May 1875
• Citation: 79 Pa. 33
• Parties: Pennsylvania Railroad Company <I>versus</I> Lewis <I>et ux.</I>
• Court: Pennsylvania Supreme Court

79 Pa. 33

Pennsylvania Railroad Company versus Lewis et ux.

Supreme Court of Pennsylvania.

May 17, 1875.

May 24, 1875.

May 17th 1875.

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

Error to the Court of Common Pleas of Dauphin county: Of May Term 1875, No. 55.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

L. W. Hall and F. Jordan, for the plaintiff in error.—The child was where he had no right to be; the defendant's had the right to presume that even children of tender age would not be on their track; they could not be there without fault of their parents or guardians: Railroad Co. v. Hummel, 8 Wright 375. Though a child of tender years may recover for an injury, partly caused by his own imprudent act, a parent cannot: Glassey v. Railroad Co., 7 P. F. Smith 173.

As to the 9th assignment of error, they cited: Railroad Co. v. Spearin, 11 Wright 300. Railroad companies must keep the time announced in their schedules: Wharton on Negligence, sec. 662; Denton v. Gr. W. Railway, 5 E. & B. 860; Gordon v. M. & L. Railroad, 52 N. H. 596. No conceivable rate of speed is per se evidence of neglect: Shearman & Redf. on Negligence 535, sec. 478; Wild v. Hudson Railroad, 29 New York 315.

O. F. Johnson and H. Alricks, for defendants in error.— Whether permitting the child to go along the railroad was negligence, was for the jury: Catawissa Railroad Co. v. Armstrong, 2 P. F. Smith 282; Schinhold v. N. Beach & M. Railroad, 40 Calif. 447; Drew v. Sixth Avenue Railroad, 26 N. Y. 49; Lovett v. Salem & S. Danvers Railroad, 9 Allen 563; Pennsylvania Railroad v. Kelly, 7 Casey 372; Philadelphia & Reading Railroad v. Long, 25 P. F. Smith 257. Whether ordinary and reasonable care was used was for the jury: Pennsylvania Railroad v. Ackerman, 24 P. F. Smith 265. More care is to be exercised by engineers towards the young, the aged and infirm, than towards those of mature years and active bodily powers: 38 N. Y. 445; Baltimore and Ohio Railroad v. Fryer, 30 Maryland 47; O'Flaherty v. Union Railway, 45 Missouri 70. To constitute negligence of parents, there must be such omission as persons of ordinary prudence exercise towards their children: Beers v. Housatonic Railroad, 19 Conn. 566. Negligence and contributory negligence are for the jury, and to be determined by the circumstances of each case: Robinson v. Cone, 22 Vermont 225; Pendrill v. Second Avenue Railroad, 43 Howard 409; Johnson v. Bruner, 11 P. F. Smith 58. The father being employed in the Lochiel Mills, and thus having the right to use the crossing there, the child had the same right: Pittsburg, F. W. & C. Railroad v. Bumstead, 48 Ill. 221; Reeves v. Del. & Lacka. Railroad, 6 Casey 461; Wild v. Hudson River Railroad, 33 Barbour 504. If the train was going too fast the parting of the brake chain was no excuse: West Chester & Philadelphia Railroad v. McElwee, 17 P. F. Smith 312; Aaron v. Second Avenue Railroad, 2 Daly 127. Railroad companies running their trains through cities or populous places, are held to a degree of care commensurate with the danger thus involved: T., W. & W. Railroad v. Harmon, 47 Ill 298; Johnson v. Hudson River Railroad, 6 Duer 633; Daley v. Norwich & Worcester Railroad, 25 Conn. 595.

Chief Justice AGNEW delivered the opinion of the court, May 24th 1875.

This case was submitted to the jury correctly and fairly. In the first place the judge withdrew from the jury all the evidence that the public were accustomed to use the track at or in the neighborhood of the place of the accident, as a passage-way by sufferance of the railroad company; saying also that the company "is just as much entitled to the free and uninterrupted enjoyment of its track at this particular place as at any other along the entire line of the road." He also informed the jury, "that if this boy was walking on the track of this road, taking it as a short cut to his aunt's, he was where he had no right to be; and it matters not that many others had done the same; this did not justify this boy, nor could it justify the father and mother in using the track as a footway."

He then fairly left the great question of the cause to the jury in fitting terms; that is, whether the train was "running at a safe and prudent rate of speed;" or (said he) "was the rate at which the train was approaching and running dangerous and reckless?" Again, "if you find that defendants' train was running at the usual rate of speed and not at a reckless and dangerous rate, but with proper care and caution, upon a good track, with the best brake then known, and with a due regard — and by this I mean with that regard that a prudent man would have — for the protection of human life, under the circumstances of the case, then we say to you that the plaintiffs cannot recover, and your verdict should be for the defendants." Surely this was not exacting an unjust or illegal degree of care and caution of the company entering within the outer limits of the city of Harrisburg where the accident happened. It took place at the Lochiel Iron-works, situated immediately alongside of the track, where numerous hands were constantly passing and repassing, and in the vicinity of the rows of houses occupied by the hands employed in these large works, and in a neighborhood where many persons were likely to be. According to the plaintiff's evidence, the rate of speed of the train, while approaching and entering within these limits, was from twenty to twenty-five miles an hour. The engineer himself testified to eighteen-miles, and it was shown that before the coroner's jury he had testified that the speed was from twenty to twenty-five miles an hour. There was therefore evidence which justified the instructions, and this distinguishes the case, at once, from that of the Railroad Company v. Hummel, 8 Wright 375, in which Justice Strong says, the cars were moving slowly by their own gravity, yet so perfectly under the control of the engineer that they could be immediately stopped. The question presented in this case is, therefore, whether a railroad company may enter into the outskirts of a populous city at a high and dangerous rate of speed,...