Phil. & Reading Railroad Co. v. Boyer

• Decision Date: 31 January 1881
• Citation: 97 Pa. 91
• Parties: Philadelphia and Reading Railroad Company <I>versus</I> Boyer.
• Court: Pennsylvania Supreme Court

97 Pa. 91

Philadelphia and Reading Railroad Company versus Boyer.

Supreme Court of Pennsylvania.

January 17 and 18, 1881.

January 31, 1881.

January 17th and 18th 1881.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ. (Reargument.)

Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of July Term 1878, No. 35.

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James E. Gowen, for the plaintiff in error.—The court erred in holding as matter of law, that if the jury found there was no negligence by the passenger railway company, the verdict should be for the plaintiffs. Under the pleadings, it was the duty of the plaintiffs to prove, not only that the passenger railway company was innocent, but that the defendant was guilty of negligence. In so holding, the court usurped the province of the jury: Madara v. Eversole, 12 P. F. Smith 160; Work v. Maclay, 2 S. & R. 415; Huston v. Barstow, 7 Harris 169; Hart v. Girard, 6 P. F. Smith 23; Moore v. Miller, 8 Barr 272; Tenbrooke v. Jahke, 27 P. F. Smith 392. The court further erred in its definition of the degree of care required of the flagman; and in telling the jury, that if he did not comply with the standard so laid down, it was conclusive of the defendants' negligence. The second point should have been affirmed without qualification. The negligence of the car driver, in failing to stop, look and listen, before attempting to cross the track, embodied in the third point, should have been affirmed. Such precaution was necessary, irrespective of any action by the flagman. In view of the ordinance of councils, such failure was negligence per se: Railroad Co. v. James, 1 W. N. C. 68; Pennsylvania Canal Co. v. Bentley, 16 P. F. Smith 30; Johnson v. Bruner, 11 Id. 58; Citizens Ins. Co. v. Marsh, 5 Wright 386; Schultz v. Pennsylvania Railroad Co., 6 W. N. C. 69; Girard Avenue Passenger Railway Co. v. Middleton, 3 Id. 486; McCully v. Clarke, 4 Wright 406; Crissey v. Railroad Co., 25 P. F. Smith 83. The verdict as to the excess over $5000, is in direct conflict with the Act of April 4th 1868 (Pamph. L. 58), which limits the amount to be recovered in actions against railroad companies for negligence to $3000 in case of personal injuries, and to $5000 in case of death.

[SHARSWOOD, C. J. — What have you to say on the question as to the constitutionality of that act?]

A distinction is to be taken between the limitation in case of personal injuries and that in case of death. As to the former, the act may be unconstitutional without affecting its constitutionality as to the latter. This court has said, that the right to recover for personal injuries is a common-law right, which cannot be abridged by the legislature: Central Railway of New Jersey v. Cook, 1 W. N. C. 319; Thirteenth and Fifteenth Streets Railway Co. v. Boudrou, 11 Norris 475. But the right of the widow and children to recover damages for the death of the husband and father, is a purely statutory right, and is capable of restriction and limitation by the legislature. The validity of this portion of the act was established in Cleveland and Pittsburg Railroad Co. v. Rowan, 16 P. F. Smith 393, and Pennsylvania Railroad Co. v. Keller, 17 Id. 300; and since the constitution of 1874, it has been held, that the Act of 1868 was not ipso facto repealed by article III., section 21 of the constitution: Pennsylvania Railroad Co. v. Langdon, 11 Norris 21.

Rufus E. Shapley, for the defendant in error.—The answers to the defendant's points and the charge of the court below, as a whole, contain no error. The learned judge expressly told the jury, that before they could render a verdict against the defendant, they must be satisfied that the Reading Railroad Company was negligent, and that the passenger railway company was not; and although he expressed his opinion on the testimony, he left all questions of fact to the jury. In charging that the flagman was bound to use extraordinary care, he referred to the extraordinary danger at this hazardous crossing, which fact was undisputed, and the instruction practically was, that he was bound to use such care as the circumstances of the case reasonably demanded. In view of the admitted fact, that an approaching train could not be seen from the passenger railway track, the flagman's duty was to give warning by an unmistakable signal, and whether he did so or not was left to the jury. The rule requiring one attempting to cross a railroad to stop, look and listen, is not an unbending one, applicable to every case. Where, from the nature of the crossing, such precautions will not apprise the traveller of danger, and a flagman on duty invites him to come on, he is not only justified in doing so, but would be held guilty of negligence were an accident to happen, by reason of his disregarding the signal: Wharton's Law of Negligence, sect. 387 (ed. 1874); Borst v. Lake Shore Railroad Co., 4 Hun 346; Cleveland Railroad Co. v. Crawford, 24 Ohio St. 631; Kennayde v. Pacific Railroad Co., 45 Mo. 255; Tabor v. Missouri Valley Railroad Co., 46 Id. 353; Newson v. N. Y. Cent. Railroad Co., 29 N. Y. 383; Beisiegel v. Same, 34 Id. 622; Brown v. Same, 32 Id. 597; Sweeny v. Old Colony Railroad Co., 10 Allen 368; Spencer v. Illinois Cent. Railroad Co., 29 Iowa 55; Warner v. N. Y. Cent. Railroad Co. 45 Barb. 299.

Although it may not be negligence for a railroad company to omit to keep a flagman at a crossing, yet, if one is employed, his neglect to perform the usual and ordinary functions of the place is sufficient to charge the company: Kissenger v. N. Y. & Harlem Railroad Co., 56 N. Y. Court of Appeals 538; Reading Railroad v. Killips, 8 W. N. C. 526.

A defendant cannot impute a want of vigilance to one injured, if that very want of vigilance was the consequence of an omission of duty on the part of the defendant: Kennayde v. Pacific Railroad Co., 45 Mo. 255; Tabor v. Missouri Valley Railroad Co., 46 Id. 353; Pennsylvania Railroad Co. v. Ogier, 11 Casey 60; McCully v. Clarke, 4 W. N. C. 186; Johnson v. West Chester Railroad Co., 20 P. F. Smith 366; Allegheny Valley Railroad Co. v. Findley, W. N. C. 438.

A rate of speed over twenty-five miles an hour in a populous neighborhood of a city is too great, and rebuts any presumption of negligence on the part of a party run over and killed by the train while attempting to cross the street: Hagan v. Railroad, 5 Phila. 179, affirmed in 11 Wright 244.

This being a one-horse car, without a conductor, the ordinance of councils does not apply to the case. A municipality cannot by ordinance create a civil duty enforcable at common law; that power reposes in the legislature: Philadelphia and Reading Railroad Co. v. Ervin, 8 Norris 71.

As to the constitutionality of the Act of 1868, in Langdon's Case, the Pennsylvania Railroad Company had formally accepted the act before the date of the new constitution, under the provisions of its fourth section, and they specially pleaded it and proved it in the case, as part of their charter, which was not affected by the constitution. While the judge who wrote the opinion intimated his view, that the act was not repealed by the constitution, the case was decided solely upon the ground the act formed part of the charter. In this case, there is no evidence that the Reading Railroad Company ever accepted the act, and we must assume that they did not. The questions now arise, therefore, is the Act of 1868 a general law? and, if so, was it repealed by the constitution? A reference to the debates of the constitutional convention will show, that the intention of the framers was absolutely to repeal acts limiting damages, referred to in the first sentence of art. III., sect. 1, of the constitution, as well as those limiting the time within which suits might be brought, referred to in the second sentence of that section. See punctuation, &c., on second reading, and amendment on third reading, Debates, vol. 5, p. 292. The constitution of Pennsylvania, unlike the constitution of the United States, is not to be construed strictly, but liberally, in furtherance of the intention of the people, and in favor of their rights: Weister v. Hade, 2 P. F. Smith 474; Cronise v. Cronise, 4 Id. 255; Moers v. City of Reading, 9 Harris 188.

Even if the act is in force and constitutional, a reversal would be improper, as this court can reduce and correct the verdict and judgment below.

Mr. Justice GORDON delivered the opinion of the court, January 31st 1881.

Jacob P. Boyer, to recover damages for the loss of whose life this action has been brought by his widow and children, was, on the 6th day of March 1877, a passenger on a car of the Thirteenth and Fifteenth Streets Passenger Railway Company, and, as this car was moving across the tracks of the Philadelphia and Reading Railroad, it was struck by a passing locomotive; the result was the wreck of the car and the loss of two lives, that of Boyer being one of them.

The success of this action depends upon the establishment of two assumptions: (1.) That the death of Boyer resulted directly from the carelessness of the defendant's servants; (2.) That the person in charge of the street car was chargeable with no negligence. It is...