Railroad v. Norton

• Decision Date: 01 August 1855
• Citation: 24 Pa. 465
• Parties: Railroad versus Norton.
• Court: Pennsylvania Supreme Court

Page 465

24 Pa. 465

Railroad versus Norton.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Berks county.

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Strong and Banks, for plaintiffs in error.—One cannot recover for an injury arising even from the gross negligence of another, unless he himself be free from culpable negligence: 5 W. & Ser. 524; 6 Whar. 211; 1 Cowen 78; 2 Pick. 621; 6 Cow. 189; 1 Vermont 353; 7 Harris 298; 11 Harris 147.

The Court erred in charging that the plaintiff was lawfully on the track. This was a material error. They also erred in charging that the agent knew the plaintiff was on the track, or that he might be there, and was bound to look out for him.

Swartz and Davis, for defendant in error.—When the jury are instructed correctly as to the general rule, it is not a ground of error that all the exceptions to it are not stated: 7 Harris 350. What is ordinary care depends on the circumstances of the case.

Though the plaintiff was not entirely without fault, yet if the accident could have been avoided by the exercise of proper care on the part of the defendants, they are liable: 10 Mees. & W. 345, Davies v. Mann; 5 Esp. N. P. C. 44. When the negligence of the defendant is the proximate, and that of the plaintiff the remote cause of the injury, action may be supported, although the plaintiff is not entirely without fault: 24 Vermont 488; Am. Law R. April, 1855; 15 Ad. & El. 35. Though the plaintiff was in the wrong, the defendants were not absolved from the observance of due and proper care towards him: 16 Am. Law Reg. April, 1855, p. 356; 16 Conn. 421; 53 E. C. L. 376; 4 Harris, Beattie v. Gilmore; 8 Id. 175, Morrison v. Davies.

The Court did not charge that the sawing machine could be put on the road merely to obstruct it; but that, as its operation was useful to the Reading company, it could be used on the road if ample space and convenience was left for the train to pass. Though Burns had the machine placed on the road, it is to be considered as if placed there by the Reading Railroad Company, as he is to be considered as its agent, whether the work was done by him by contract for a stipulated price, or by workmen directly employed by the company: 23 Pick. 24, cited in 1 Railway Cases 289; 1 Bos. & Pul. 403. The plaintiff was not guilty of negligence, but was lawfully engaged, being employed by Burns, the agent of the Reading Railroad Company; and the collision might have been avoided by due care on the part of the company's agent. The conductor should have informed the engineer that the machine was on the track. There was another track to pass upon.

The opinion of the Court was delivered by WOODWARD, J.

The action here was trespass on the case for a personal injury resulting from the negligent running of their cars by the agents of the defendants. The plaintiff was not a passenger, and the defendants had assumed no responsibility, express or implied, for his safety. According to his own showing, he was engaged in sawing wood with a steam sawing machine, screwed and wedged to the very rail which he knew the defendants were accustomed to travel with their locomotive and trains. The Court ruled that he was lawfully there. We are obliged to say that he was not. He had the authority of Burns, an agent of the Reading Railroad Company, for whom he was sawing wood; but it was in clear proof that Burns had no express authority to put him there. And what if he had? Neither Nicolls, the superintendent, nor the Reading Railroad Company itself, had any right to fix such a nuisance on that track. The Reading Railroad Company built the track as a public highway, and the Little Schuylkill Company had, by express contract, the right of passage upon it, but neither company might obstruct the other. It would have been an abuse of their charter powers to authorize machinery to be fastened to the rail for sawing wood, or any other similar purpose. It is of the utmost moment to human...