Philadelphia & Reading Railroad Co. v. Hendrickson

• Citation: 80 Pa. 182
• Court: United States State Supreme Court of Pennsylvania
• Decision Date: 07 February 1876
• Parties: Philadelphia & Reading Railroad Co. <I>versus</I> Hendrickson.

Page 182

80 Pa. 182

Philadelphia & Reading Railroad Co. versus Hendrickson.

Supreme Court of Pennsylvania.

January 24, 1876.

February 7, 1876.

January 24th 1876.

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

Error to the Court of Common Pleas of Columbia county: Of September Term 1875.

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S. P. Wolverton and C. R. Buckalew, for plaintiffs in error. —A railroad company is not answerable in damages for the reasonable exercise of a right; firing along the track by sparks from the engine is not of itself evidence of negligence: Railroad Co. v. Yeiser, 8 Barr 366; Philadelphia & Reading Railroad Co. v. Yerger, 23 P. F. Smith 121; Frankford & B. Turnpike Co. v. Philadelphia & Trenton Railroad Co., 4 Id. 345; Lackawanna & B. Railroad Co. v. Doak, 2 Id. 379; Wharton on Negligence, sect. 872; Howard Express Co. v. Wile, 14 P. F. Smith 201. If the owner of a building permits it to remain so that it is liable to be fired by sparks from an engine, it is negligence in the owner: Ross v. Boston & Worcester Railroad Co. 6 Allen 87; 1 Redfield on Railways 453, in nota.

E. H. Baldy and J. W. Comly, for defendant in error, cited Huyett v. Philadelphia & Reading Railroad Co., 11 Harris, 373; Sheldon v. Hudson River Railroad Co., 14 New York 218; Field v. New York Central Railroad Co., 32 Id. 339; Cook v. Champlain Transportation Co., 1 Denio 91; Pennsylvania Railroad Co. v. Stranahan, 29 P. F. Smith 405.

Chief Justice AGNEW delivered the opinion of the court, February 7th 1876.

Whether a barn or a house standing near to the track of a railroad was set on fire by sparks thrown from a locomotive is a question of fact, depending on the circumstances, when no direct proof is made, and therefore must be decided by a jury. Hence all the circumstances tending to the proof of the fact must be admitted in evidence: Huyett v. Phila. & Read. Railroad Co., 11 Harris 373; Penna. Railroad Co. v. Stranahan, 29 P. F. Smith 405; Webb v. Rome, Watertown et al. Railroad Co., 49 N. Y. 423. The first and second errors are not supported. The third and fourth need no comment. Nor do we discover any error in the charge of the court and the answers to the points. The case was fairly submitted to the jury on the question of actual negligence and carelessness in the management of the defendants' engines. If none, the jury were instructed that the plaintiff could not recover. But if the barn was set on fire by actual carelessness, and negligent management of the engines, no question of contributory negligence could arise under the evidence. There was no evidence of any act of the plaintiff contributing to the burning of the barn. The defendants rested their case on the condition of the roof of the barn and the dry weather. The substance of the defendants' points was, that if the condition of the barn was such as to render it more liable to take fire than if it had had a secure and safe roof, the plaintiff was guilty of contributory negligence in suffering it to be in that condition. This is clearly unsound, and if sustained would require the owner of property lying along a railroad to keep it in a condition to be always safe from sparks or fire thrown from the passing engines. It would deprive the owner of the enjoyment of his property in the way most suited to himself. He could not put his hay into stacks or ricks, or suffer straw to lie around his barn for his cattle to feed or rest upon. He must keep his houses, out-houses, stables and barns under the best known safe roofs, or insure them against the negligence of the company. An owner of property near to a railroad must run all the risks of a proper and careful use of the road, for this is the company's right: Turnpike Co. v. Phila. & Trenton Railroad Co., 4 P. F. Smith 352. When the railroad company uses the most approved spark arresters, and the proper care and vigilance in the running of its engines, and the landowner's barn or...