Pennsylvania Railroad Co. v. Ackerman

• Decision Date: 20 October 1873
• Citation: 74 Pa. 265
• Parties: Pennsylvania Railroad Co. <I>versus</I> Ackerman.
• Court: Pennsylvania Supreme Court

74 Pa. 265

Pennsylvania Railroad Co. versus Ackerman.

Supreme Court of Pennsylvania.

October 15, 1873.

October 20, 1873.

October 15th 1873.

Before READ, C. J., AGNEW, SHARSWOOD, WILLIAMS and MERCUR, JJ.

Error to the Court of Common Pleas of Allegheny county: Of October and November Term 1873, No. 103.

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J. H. Hampton (with whom was J. Dalzell), for plaintiffs in error.—The driver should have got out of his wagon and looked and listened: North Pennsylvania Railroad Co. v. Heileman, 13 Wright 60; Pennsylvania Railroad Co. v. Beale, 23 P. F. Smith 504.

Gazzam & Cochran, for defendant in error.—The driver was not bound to go on the track: Pittsburg, Fort Wayne and Chicago Railroad Co. v. Evans, 3 P. F. Smith 250. When there is evidence of negligence in both parties, the question is for the jury: Pennsylvania Railroad Co. v. McTighe, 10 Wright 319; North Pennsylvania Railroad Co. v. Robinson, 8 Id. 175; Lackawanna and Bloomsburg Railroad Co. v. Chenewith, 2 P. F. Smith 382; Pennsylvania Railroad Co. v. Henderson, 7 Wright 449. Each case is to be decided on its own merits. There can be no inflexible rule for all cases: Philadelphia and Reading Railroad Co. v. Spearin, 11 Wright 300.

The opinion of the court was delivered, October 20th 1873, by SHARSWOOD, J.

There is no subject which, in my judgment, more loudly calls for legislative regulation than that of railroad crossings at grade. We are far behind Great Britain and the countries on the Continent of Europe in the precautions required to prevent those fearful accidents to passenger trains from collisions which have produced the loss of so many valuable lives, accompanied with such horrible suffering from mangled limbs and bodies. The judicial decisions of the courts, and of this court in particular, have gone as far as they could in requiring the utmost care on the part of the servants of the railroad companies, to give notice of the approach of trains, and the like care and caution to travellers in attempting to cross. More particularly is this true either in approaching or passing through populous towns or cities.

If the evidence given by the plaintiff below was to be believed, the railroad company in the case before us was guilty of very gross negligence. It was a dark, foggy morning, with snow on the track, which deadened the usual rumbling sound of a moving train. They were going, even according to their own account, at a much greater speed than was allowed by the ordinance of the city of Allegheny, through whose streets they were passing. They sounded no whistle, and if they were ringing a bell, it could only have been at intervals, not continuously. Too many entirely indifferent witnesses testify that they did not hear a bell, to lead the mind to any other conclusion. This particular crossing was at the time so obstructed by cars on a siding that the view of the track could not be had until the traveller was directly upon it. One witness testified that a person could not see up the track...