Pittsburg Ft. W. & C.R. Co. v. Collins

• Decision Date: 11 November 1878
• Citation: 87 Pa. 405
• Parties: PITTSBURGH, FORT WAYNE & CHICAGO RAILWAY, & c., CO. v. COLLINS.
• Court: Pennsylvania Supreme Court

87 Pa. 405

PITTSBURGH, FORT WAYNE & CHICAGO RAILWAY, & c., CO. v. COLLINS.

Supreme Court of Pennsylvania.

November 11, 1878

October 17, 1878

1. Where a person, without right, with a full knowledge of the location voluntarily places himself upon a railroad track, at a place where there is no crossing, and which is a known place of danger, and is killed by a passing train, it is negligence per se, and no damages can be recovered for his death except for wanton injury.

2. Railroad Co. v. Norton, 12 Harris 465, and Mulherrin v. Railroad Co. 31 P.F. Smith 367 followed.

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

WOODWARD J., absent.

Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1878, No. 207.

Case by Mary Collins and her children against the Pittsburgh, Ft Wayne and Chicago Railway, and the Pennsylvania Railroad Company, operating said railroad, to recover damages for the death of their husband and father, James Collins, who, it was alleged, was killed by the defendant's cars.

Collins was found dead on the tracks of the defendants' railroad. The point at which the body was found was not a public crossing. A train had just passed before it was found, and it was evident it had been run over by the train. At the place of the accident the railroad is parallel with and north of Preble avenue, a street forty feet wide. There were three tracks, and from the one on the south a switch ran to a mill at which Collins worked and where he lived. His usual way when going home was to leave Preble avenue at the switch. The body was found beyond the switch. The track was unballasted and between the second and third tracks there were piles of cinder. There was conflicting evidence as to whether Collins was sober. A city ordinance, which authorized the running of cars along Preble avenue, required that it should be fenced which had not been done by the railroad company. The other material facts will be found stated in the opinion of this court.

The court, Ewing, P.J., in answer to points, and in their general charge, inter alia, said:

" Aside from the failure to fence there is no evidence of any negligence or wrong on part of the defendants or their employees that is relevant in this case. If this railroad track was laid down and operated by the company under and by virtue of the license given by the ordinance in evidence, on a public street in a populous part of the city, and the street and track graded up by the company to the same level, the provision of the ordinance requiring a substantial fence to be built separating the railroad track from the other part of the street is to be considered a reasonable police regulation for the safety and protection of travellers on the street by day or night. By the acceptance of the benefits of the ordinance a duty was imposed on the railroad company to erect this protection, the neglect of which was negligence. If this negligence naturally, directly and materially contributed to the death of James Collins, the plaintiffs are entitled to recover, unless the deceased was guilty of negligence which contributed to the accident. * * *

" The deceased had a right to travel along Preble avenue— not on the railroad track. If at or near the point at which he was killed, he was passing along the street, and in the darkness of the night casually and unintentionally got on the railroad track because of the want of a fence, and at the same time exercising that reasonable care and prudence which a man of ordinary prudence and intelligence in the possession of his faculties (I mean sober, for it requires a sober man to exercise reasonable care and prudence as a general rule), and knowing the situation, as Collins did, would have exercised, and after finding himself on the track was unable to get off until struck by the train, he did all that the law required of him and was not guilty of negligence which would prevent a recovery."

Verdict for the plaintiffs for $3000, and a motion for a new trial having been refused, judgment was entered on the verdict. The defendant then took this writ, assigning for error, inter alia, the foregoing instruction of the court.

Hampton & Dalzell, for plaintiff in error.--Where a person places himself on the track of a railroad company, he can only recover for wanton injury: Railroad Co. v. Norton, 12 Harris 465. Except at crossings: Mulherrin v. D., L. &amp W. Railroad, 31 P.F.Smith 367. The ordinance requiring the railroad to fence was a part of a contract, and if violated the city of Allegheny had the right of action and not plaintiffs. The court had no power to declare a breach of this contract negligence per se: Drake v. Railroad, 1 P.F. Smith 240. Whether the neglect to fence was the proximate cause of the injury should have been submitted to the jury: Milw...