Philadelphia & Reading Railroad Co. v. Long

• Court: Pennsylvania Supreme Court
• Writing for the Court: Agnew
• Citation: Philadelphia & Reading Railroad Co. v. Long, 75 Pa. 257 (Pa. 1874)
• Decision Date: 24 February 1874
• Parties: Philadelphia & Reading Railroad Company <I>versus</I> Long and Wife.

75 Pa. 257

Philadelphia & Reading Railroad Company versus Long and Wife.

Supreme Court of Pennsylvania.

February 9, 1874.

February 24, 1874.

February 9th 1874.

Before AGNEW, C. J., MERCUR and GORDON, JJ. SHARSWOOD, J., at Nisi Prius

Error to the District Court of Philadelphia: No. 24, to July Term 1872.

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T. Hart, Jr., and J. E. Gowen, for plaintiffs in error.— Generally what is and what is not negligence is a question for the jury; but if there be no evidence of negligence, or any facts or circumstances from which negligence could be fairly inferred, the court ought not to submit the question to their determination: Pennsylvania Railroad Company v. Barnett, 9 P. F. Smith 259. Conceding the bare assertion that the train was going at the rate of eight miles an hour at the time of the accident, such fact alone cannot justify an inference of negligence. It is the duty of those in charge of a train, when approaching a public crossing, to give notice by blowing the whistle, ringing the bell, or such other device as may be sufficient to warn travellers of their approach, a sufficient distance from the crossing to afford time for all approaching to stop in a place of safety, or, if on the track, to get out of danger. It is also their duty to look along the track, and if they see or might, by the use of due care or caution, see any obstruction on the track, to check the train by using every means in their power to prevent a collision: Pittsburg, F. W. & Ch. Railway v. Dunn, 6 P. F. Smith 280. A railroad train, approaching a public crossing with sufficient notice of its approach is not bound so to reduce its rate of speed that, if the warning be disregarded and a traveller cross in front of the train upon the highway, the engine can be checked in time to avoid collision; the train hands are entitled to presume that no one, either infant or adult, will cross in the face of the train, and to maintain the usual rate of speed of the cars: Telfer v. the Northern Railroad Company, 30 New Jersey Law Reports (1 Vroom), 188; Shearman and Redfield on Negligence, sect. 478; Wilds v. Hudson R. Railroad, 29 New York 315.

Where one steps suddenly in front of a moving train, so near that no signal could save him, the railroad company is not negligent in not having given a signal: Hartley v. Central Railroad Company, 42 New York (3 Hand) 468. If there be no negligence, the incapacity of the child creates no liability on the company: Kay v. Penna. R. R., 15 P. F. Smith 269; Flowers v. Penna. R. R. 19 Id. 210. They cited on the question of the parents' neglect: Glassey v. Pass. Railway, 7 P. F. Smith 172.

J. Dolman, for defendants in error.—A jury alone can determine what is negligence, and whether it has been proved: McCully v. Clark, 4 Wright 406; Telfer v. R. R. Co., 30 N. J. 192. That which in one case would be an ordinary and proper use of one's rights, may by a change of circumstances become negligence and want of due care: Kay v. R. R. Co., 15 P. F. Smith 269. As to the parents' negligence, he cited O'Flaherty v. Railroad Co., 3 Am. L. Times 42; Pittsburg, All. & M. Pass. Railway v. Pearson, 22 P. F. Smith 169.

The opinion of the court was delivered, February 24th 1874, by AGNEW, C. J.

This case has been argued by the eminent counsel of the railroad company as if the facts were fixed with the certainty of a special verdict. If we assume that the child, Rosanna Long, suddenly appeared upon the track, five or six feet ahead of the locomotive on the left-hand side; that the engineer was in his proper place on the right side of the engine-cab, looking out constantly, but his vision, for several feet in front of the cow-catcher, was obstructed by the boiler and carriage of the engine; and that the fireman was at his post ringing the bell, and unable to keep a lookout on the left-hand side of the engine; we might conclude that the death of the child was an accident not within the power of the engineer to avoid, and that the court might have given a binding instruction to the jury. Then, indeed, the rate of speed would be immaterial, for, upon such a sudden appearance of the child on the track, no rate of speed, no matter how slow, could have saved it. But it was because these facts were not so fixed and certain, that the question of negligence must necessarily go to the jury, to ascertain exactly how they were; and for the same reason the rate of speed became an element properly belonging to the case. Only two witnesses saw the accident happen. One of them, S. A. Moore, coming out of an alley into Cotton street, which crosses Cresson street and the railroad track at right angles, saw the child and the locomotive at the same instant at the crossing. To him the sight and the accident were simultaneous, so that his testimony gives us no information of the previous position of the child while the train was moving up Cresson from Gay street to Cotton. The other witness, Benjamin Levering, saw more. He crossed Cresson at Cotton street; saw the engine coming. Saw it when it left the depot at Gay street. The child was then on the upper side of the road; after crossing, he himself turned up Cresson street, and in...