Post v. Railroad Co.

• Citation: 108 Pa. 585
• Court: Pennsylvania Supreme Court
• Decision Date: 09 March 1885
• Parties: Post <I>versus</I> Buffalo, Pittsburgh and Western Railroad Company.

Page 585

108 Pa. 585

Post versus Buffalo, Pittsburgh and Western Railroad Company.

Supreme Court of Pennsylvania.

February 3, 1885.

March 9, 1885.

February 3d, 1885.

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

ERROR to the Court of Common Pleas of Crawford County: Of January Term, 1885, No. 29.

W. Ed. Marsh and Manley Crosby (with whom was Joshua Douglass), for the plaintiffs in error.—Negligence is a question for the jury. The standard of duty is shifting according to the circumstances of the case: West Chester R. R. v. McElwee, 67 Pa. St., 315; McCully v. Clarke, 40 Pa. St., 406; Glassey v. Hestonville R. R., 57 Pa. St., 172; Penn. R. R. v. Barnett, 59 Pa. St., 259. It is only when the undisputed evidence discloses no neglect on the defendant's part that the case can be withdrawn from the jury: Reading R. R. v. Ritchie, 102 Pa. St., 425; Huyett v. Railroad Co., 23 Pa. St. 374; Turnpike Co. v. Phila. & Trenton R. R., 54 Pa. St., 350; Phila. & Reading R. R. v. Schultz, 93 Pa. St., 344. To justify a nonsuit on the ground of contributory negligence, it must appear so clearly that no contrary inference can be drawn from the evidence, and the doctrine is limited to cases where the plaintiff's act is the proximate cause of the injury: Phila. & Reading R. R. v. Hendrickson, 80 Pa. St., 190; Flynn v. San Francisco R. R., 40 Cal., 14; Phila. & Reading R. R. v. Schultz, supra; Stackus v. N. Y. C. & H. R. Co., 79 N. Y., 464; Webb v. Rome & Watertown R. R., 49 N. Y., 420; Kellogg v. Chicago & N. W. R. R., 26 Wis., 223; Clemens v. H. & St. J. R. R., 53 Mo., 366.

W. R. Bole and Jas. D. Hancock, for defendant in error.—

Mr. Justice PAXSON delivered the opinion of the Court, March 9th, 1885.

Conceding that plaintiff's lumber caught fire from defendant company's engine No. 20, and that said company was guilty of negligence in not providing said engine with a proper spark arrester, and in allowing inflammable rubbish to accumulate upon the track near which the lumber was piled, we are nevertheless of opinion the court below committed no error in entering a compsulsory nonsuit.

The defendant company had constructed a siding or switch near Glyndon to facilitate the shipping of freight over its road. The plaintiffs were manufacturers of lumber and had constructed a platform at this place to enable them to ship it. In the winter and spring of 1881 they had placed a large amount of their lumber, partly on the right of way of defendant company and partly on land rented by them for that purpose. This lumber was piled and "stuck," some of it within a few feet of the track and all of it near it. The evidence shows beyond a reasonable doubt that it was placed there for storage, for drying, and for shipment when and as the same was required and cars could be furnished. A fire occurred in July of that year, and about 160,000 feet of the lumber was destroyed. It was alleged, and the probability is, that the fire was caused by sparks from engine No. 20, which passed about fifteen minutes before the fire was discovered. It originated in the inflammable rubbish referred to and soon extended to the lumber piles. The plaintiffs knew of the rubbish when they piled their lumber, and they also knew that there was no station at this point, and no one in charge to watch for fires or put them out if they occurred. That it was a dangerous place to pile lumber in any quantity, especially if left there for weeks and months, was proved by the witnesses called by the plaintiffs themselves. We have the additional fact that it was an exceptionally dry season; that fires were of almost daily occurrence along the line of the road, caused by the engines of the defendant company. It is a fact well known to every one that at such times no spark arrester, however carefully it may be constructed, will prevent fires where light and inflammable materials are near the line of the road. There is a point beyond which human ingenuity cannot go...