Phila. & Reading Railroad Co. v. Ervin

• Decision Date: 10 March 1879
• Citation: 89 Pa. 71
• Parties: Philadelphia and Reading Railroad Co. <I>versus</I> Ervin.
• Court: Pennsylvania Supreme Court

89 Pa. 71

Philadelphia and Reading Railroad Co. versus Ervin.

Supreme Court of Pennsylvania.

February 5, 1879.

March 10, 1879.

February 5th 1879.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, WOODWARD, TRUNKEY and STERRETT, JJ.

Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1878, No. 250.

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Thomas Hart, Jr., for plaintiff in error.—The ordinance should not have been admitted. An action for damages will not lie against a person for the neglect of a statutory duty merely because it is shown that damages have arisen from its non-performance: Atkinson v. New Castle Waterworks Co., 2 Law Rep. Exch. Div. 441; Couch v. Steel, 3 E. & B. 402; Stevens v. Jeacocke, 11 A. & E. (N. S.) 731; General Steam Nav. Co. v. Morrison, 13 C. B. 581; Kirby v. Boylston Market Association, 14 Gray 249; Flynn v. Canton Co., 40 Md. 312; Vandyke v. Cincinnati, 1 Disney 532; Chambers v. Ohio Life and Trust Co., 1 Id. 327. There is no power to annex civil liability to the violation of an ordinance: Heeney v. Sprague, 11 R. I. 456; Phillips v. Allen, 5 Wright 481; Butler's Appeal, 23 P. F. Smith 448. The defendant should have been permitted to show the nature of the business for which the pier was used, for it was not bound to put it in a condition which would unfit it for that purpose.

Henry Reed and William W. Wiltbank, for defendant in error. —Of the three counts of the declaration only one is upon the ordinance; the action is for negligence at common law and the remedy under the ordinance is but cumulative. The plaintiff claimed not the penalty given by the ordinance, but his damages suffered. Where a statute gives a right not theretofore existing (as was the case in all the authorities cited by plaintiff in error), the remedy given by the statute is exclusive; but where a statute commands or prohibits that which the common law had already commanded or prohibited, the statutory remedy is an additional one: Wheaton v. Hibbard, 20 Johns. 292; Lane v. Salter, 51 N. Y. (6 Sick.) 7; Richardson v. McDougall, 11 Wend. 47; Porter v. Mount, 41 Barb. 564; Dygert v. Schenck, 23 Wend. 451. See Washington Road v. State, 19 Md. 287; Litchfield v. Simpson, 8 Q. B. 74; Collinson v. Newcastle Railway Co., 1 C. & K. 546.

The defendant was guilty of negligence in not having cap-logs on its wharf: Brown v. Lynn, 7 Casey 510; Swords v. Edgar, 59 N. Y. 31; Holmes v. N. E. Railway Co., Law Rep. 4 Exch. 257; White v. France, Law Rep. 2 C. P. Div. 310; Tobin v. Portland Railroad Co., 59 Me. 183; Freer v. Cameron, 4 Rich. 229; Wendell v. Baxter, 12 Gray 496; Carleton v. Franconia Co., 99 Mass. 216.

It is not always necessary for the witness to be an expert to enable him to give his opinion as to a matter depending upon his special practical knowledge if he states the facts upon which he bases his opinion: Beatty v. Gilmore, 4 Harris 466; Dunham's Appeal, 27 Conn. 192.

Mr. Justice GORDON delivered the opinion of the court, March 10th 1879.

In the determination of this case it is of no kind of consequence whether the wharf of the defendant below was a public or private one, since the plaintiff was there not as a trespasser nor by mere license, but upon not only his own business but also that of the company. It was engaged in the transportation and sale of coal, and he was engaged in delivering it to the company's customers, so that whilst he was not employed directly by the defendant, yet, it profited by his employment. The company then in this manner inviting and making it necessary for carters to come upon its premises, was bound to provide ways for horses and vehicles which were reasonably safe. It was, however, not bound to do more than this; if such ways were reasonably safe; if an ordinarily prudent man could drive along them without danger, the obligation of the defendant was fully discharged; it was not liable for extraordinary accidents, neither was it liable for results arising from a want of judgment or prudence on part of the plaintiff. Was the place where the plaintiff's carts stood unsafe? Then the question at once arises, why did he stand them there? He, himself, says he stopped where he did, in order to ascertain whether the coal he wanted was or was not on pier No. 11. For a purpose of this kind, it is clear if there was a safer place in the yard he might have taken it; nay, for that matter, he need not have entered the yard at all until he had discovered just where his coal was. If there was a safer place, which was reasonably convenient where he might have stationed his horses and carts, he ought to have selected such place; for he cannot call upon the company to protect him from accidents, from which he might have protected himself by a proper exercise of his own judgment. He knew the wharves were unprotected by cap-logs; he knew the nature of horses, certainly the nature of his own horses, quite as well or better than the company, and if, under such circumstances, he was not bound to select a place safe beyond peradventure for his own property neither was the company bound to cap their wharves in anticipation of the mulishness of his horses or of his own want of judgment.

Substantially, the charge of the learned judge of the Common Pleas, on this part of the case, was correct. But as the determination of this question of negligence must depend largely upon circumstances, we think the evidence, offered to prove the nature and character of the company's business, ought to have been received. If cap-logs would have been an obstruction to that business, it would show, at least, that they had not been omitted from mere carelessness or from a niggardly spirit of economy, and so the defendant would have a better standing with the jury on the question of damages. On the other hand, it was proper to prove, by persons acquainted with the place, that it was dangerous; for if it was obviously dangerous, an inference of the company's knowledge of that fact must be presumed.

We turn now to the second...