Pittsburgh Southern Rw. Co. v. Taylor

• Decision Date: 07 January 1884
• Citation: 104 Pa. 306
• Parties: Pittsburgh Southern Railway Company <I>versus</I> Taylor.
• Court: Pennsylvania Supreme Court

Page 306

104 Pa. 306

Pittsburgh Southern Railway Company versus Taylor.

Supreme Court of Pennsylvania.

October 16, 1883.

January 7, 1884.

October 16th 1883.

Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, STERRETT, GREEN and CLARK, JJ.

ERROR to the Court of Common Pleas of Washington county: Of October and November Term 1883, No. 79.

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Geo. W. Guthrie and W. F. Wright, for plaintiff in error.— There was no evidence whatever that the cars ran off the track through any negligence on the part of the defendant company, and the jury should have been so instructed: Phila. & Read. R. R. Co. v. Schertle, 1 Out. 454; Mallory v. Griffey, 4 Norris 275; Drayton v. North Pa. R. R. Co., 10 W. N. C. 55. The evidence clearly showed that before the plaintiff started from home, he knew about the cars, and that they were calculated to frighten horses, ordinarily quiet and gentle, and that he could have gone by another road. He was therefore guilty of contributory negligence: Forks Township v. King, 3 Norris 230; Perry Township v. John, 29 Smith 412; City of Erie v. Magill, 12 W. N. C. 409; Carolus v. N. Y., 6 Bosw. 15; Belton v. Baxter, 54 N. Y. 245; King v. Thompson, 6 Norris 365. Although the horse frightened at the cars, if his terror was subsequently increased by some other object, the defendant company was not liable: Hoag v. The Railroad, 4 Norris 293; Railroad v. Kerr, 12 Smith 353; Railroad v. Hope, 30 Smith 373; City of Lancaster v. Kissinger, 11 W. N. C. 151; Scheffer v. Railroad Co., 15 Otto 249. The admission of evidence to show that the cars were allowed to remain in the same position for several days after the accident was error: Penna. R. R. Co. v. Henderson, 1 Smith 315; R. R. Co. v. McElwee, 17 Smith 311; McKee v. Bidwell, 24 Smith 218. It was error in the court to instruct the jury that they should allow interest from the date of the accident to the date of trial: Weir v. Allegheny Co., 14 Norris 413.

Boyd Crumrine (J. F. Taylor with him), for defendant in error.—What is negligence in a particular case, where the standard of duty is not fixed by law, is a question for the jury: Howard Express Co. v. Wile, 14 Smith 205; Fritsch v. Allegheny City, 10 Norris 226; McKee v. Bidwell, 24 Smith 218; Penna. R. R. Co. v. White, 7 Norris 327; Crissey v. Railway, 25 Smith 86. There is a presumption of negligence on the part of the railroad company in allowing their cars to run off the track: Edgerton v. R. R. Co., 39 N. Y. 227; Curtis v. R. R. Co., 18 N. Y. 534; Ware v. Gay, 11 Pick. 106. A railroad company cannot exercise its franchises in a way injurious to the rights of travelers on a public highway: Western Penn. R. R. Co. v. Johnston, 9 Smith 294; Act of March 20th 1845, P. L. 191. If the fright was caused by the cars, even though it was not the proximate cause, the company is responsible for any damage resulting from its negligence: Scott v. Hunter, 10 Wright 194; Pittsburgh v. Grier, 10 Harris 54. The presumption is that every one exercises ordinary care, and whether this presumption is rebutted is a question for the jury: Shearman & Redfield on Neg. § 31; Penna. R. R. Co. v. Miller, 6 Norris 395; Fritsch v. Allegheny City, 10 Norris 226; McKee v. Bidwell, 24 Smith 218; Penna. R. R. Co. v. Weiss, 6 Norris 447; Penna. R. R. Co. v. White, 7 Norris 327; Crissey v. Railway Co., 25 Smith 86. The plaintiff had a right to pass along the highway, and, observing ordinary care, he had a right to pass that crossing at the risk of the company which put the obstruction there: Shearman & Redfield on Neg. § 29; Lund v. Tyngsboro, 11 Cush. 563; Erie City v. Schwingle, 10 Harris 384; Pittsburgh City v. Grier, 10 Harris 54; P. B. & W. R. R. Co., v. Rohrman, 13 W. N. C. 259; Humphreys v. Armstrong County, 6 Smith 204; Lower Macungie Twp. v. Merkhoffer, 21 Smith 276. Exemplary damages are allowable for gross negligence, authorizing the inference of willfulness, recklessness, wantonness: Shearman & Redfield on Neg. § 600; Dana v. Fiedler, 12 N. Y. 40; McIlvaine v. Wilkins, 12 N. H. 475; Walrath v. Redfield, 18 N. Y. 457; Parrott v. Ice Companies, 46 N. Y. 361.

Mr. Justice PAXSON delivered the opinion of the court, January 7th 1884.

In the court below, the plaintiff claimed damages from the Pittsburgh Southern Railway Company, for personal injuries to himself and wife consequent upon the alleged negligence of the company in allowing two of its cars to remain off the track an unreasonable length of time at the crossing of a public highway, thereby causing plaintiff's horse to take fright and run off, breaking his carriage and harness, and inflicting serious personal injuries upon his wife and himself.

It appears that on Sunday night, December 15th 1879, a train of defendant company's empty flat cars was being backed down its road to the Enterprise Coal Works, some three miles distant. It was a dark, stormy night, and when the train reached the place where the Pittsburgh & Washington Turnpike road crosses the railroad, three of the cars ran off the track and were overturned. An effort was made by the train hands to get the cars back on the track, but they only succeeded with one of them. The other two were not removed until the following Saturday. There was a fill of several feet in the turnpike road, to enable it to cross the railroad, and up the slope, caused by the fill, the carriage-way was narrow, say ten to twelve feet in width. The two cars left were overturned mostly outside of the limits of the turnpike road, and wholly outside the traveled portion of it. The plaintiff was a farmer, living about half a mile from this crossing. The morning after the occurrence he started with his wife to drive over this road in a wagon with one horse. He had previously been informed of the accident by Mr. Hughes, a neighbor, as will appear by the following extract from plaintiff's own testimony: "He (Hughes) told me there was some cars off the track, and that his horse had frightened at them, but I did not pay much attention for I did not know anything about the position of them, and I did not care very much, for I thought I had as quiet a horse as was in the country . . . I did not think there was any danger at all, I thought the horse was so very quiet." It also appeared that the plaintiff might have avoided the crossing by a way through one of his fields; one of the witnesses did so. When the plaintiff approached the crossing, the following is what occurred, taken from his statement on the witness stand: "When I came here, the horse stopped, as I said before; my wife wanted to know if she would get out; I told her I thought there was no danger, and I took the horse by the bit and walked rather before the horse, because if you lead a horse up to a thing he has more confidence: he kept his eye kind of on this obstruction, but did not appear to make any fuss, and followed me right up; just about the time the wheels got over the railroad track I stepped from before him to the side of him, but never unloosed my hold, but still had tight hold of him; just about the time the wheels got across, and as I stepped to one side, he kind of turned to me and threw up his head and leaped right off; I never saw such jumping; I held on to him; the ground was very steep, and I had not much more than this much room to hold the horse, and I could not have held him anyhow; my wife held on to the reins, and I held on, and we went down over this bank, and after we got down over this steep part to where it was level, and I got him a little to one side, I suppose my arm broke, and then the horse ran away; the horse ran about thirty rods on the straight road; there was another road came in there, and he turned off the main road and took through a post-and-rail fence; one wheel caught on the fence, and the horse burst right through and broke everything to pieces, and my wife fell among the fragments; I have no recollection of falling, but I got up and ran as fast as I could." Upon cross-examination, he said: "I did not say to John Slater or any other person that the horse did not scare at the cars; I said he scared at something; the horse knew that thing was back of him as well as I did, and he watched it all the way across; I said that he might have taken fright at the buggy and thought it was that thing after him; he might have thought the top of the buggy was the thing that he was afraid of; I was surprised as much at the horse scaring as any person."

The jury found a verdict for the plaintiff. Seventeen assignments of error were filed to the rulings of the court below. The questions involved in said assignments will now be considered.

We think it was error to permit the plaintiff to show that the cars were not removed for several days after they were overturned. The plaintiff was injured about noon on the day following the night when the cars ran off the track. The inquiry should have been limited to that time. If the defendant company was not negligent in removing the cars before that time; if with reasonable diligence it could not have been done before the plaintiff was injured, surely no subsequent neglect of the company could make them responsible to him, for the plain reason that such delay caused him no injury. And the delay would not prove, nor would it even tend to prove, that the obstruction could have been removed with reasonable diligence prior to the accident to the plaintiff. It has been ruled in Railroad Co. v. Henderson, 1 P. F. S. 315; Railroad Co. v. McElwee, 17 Id. 311; and in McKee v. Bidwell, 24 Id. 218, that where, after an accident, the defendant removes the alleged cause, it is to some extent an admission that he was in default. If we now hold that delay in the removal of the obstruction in a case where such delay produced no injury, is competent evidence, it would leave defendants a very slender chance before a jury. It would be evidence of negligence either way. A rule which necessarily leads to such...