Rauch v. Lloyd & Hill

• Citation: 31 Pa. 358
• Parties: Rauch versus Lloyd & Hill.
• Decision Date: 01 January 1858
• Court: United States State Supreme Court of Pennsylvania

Page 358

31 Pa. 358

Rauch versus Lloyd & Hill.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Blair county.

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McDowell and Banks, for plaintiff in error.—Every principal is liable to third persons, for negligence in his agent in the course of his employment: Story on Agency, § 452; Smith on Mas. & Serv. 152; 1 Am. L. Cases 127.

That the cars standing on a public crossing, was an illegal obstruction, they referred to Act 20th March 1845, Brightly's Purd. 134; Intern. Imp. Laws, App. 50, § 94.

That the court erred in charging that the proximate cause of the injury was the moving of the cars by McFadden's driver; they referred to 1 Saund. 756; Lynch v. Nurdin, 1 Ad. & E., N. S. 28; Id. 41; 41 Eng. C. L. Rep. 426; Illidge v. Goodwin, 5 Car. & P. 190; Mohney v. Cook, 2 Casey 342; 4 Bing. 628.

Blair and Hoffius, for defendants in error.—The points submitted by the plaintiff assume that Hays, the carman of defendants, was guilty of gross negligence, and that the injury was its immediate result; and on these assumptions, ask an instruction for the plaintiff. The answer of the court submitted to the jury, whether there was negligence, and whether the injury was its result, and in this we think the answer of the court was more favourable for the plaintiff than he had a right to expect; because —

1st. There was no evidence of negligence in Hays, but on the contrary it was clear, that he was prevented from crossing by a train of cars standing on the track; and the cars did not, therefore, stand unnecessarily on the track.

2d. The injury was not caused by the standing of the cars, assuming the obstruction to have been unlawful, but was the result of the cars being put in motion by the servant of McFadden. He was hired to move them; he provided horses and teamsters who were wholly under his control, and no one but he is responsible

for injuries suffered by the motion of the cars. This was ruled in Laugher v. Pointer, 5 Barn. & Cress. 548, though by a divided court. And again by the whole court in Quarman v. Burnett, 6 Mees. & Wels. 6, 497.

3d. The injury was so obviously the result of the plaintiff's imprudence in going under the cars, that the court ought in justice to have given a peremptory instruction for the defendants; yet they submitted the question to the jury to determine whether, considering the age of the plaintiff and the circumstances attending the occurrence, he was guilty of imprudence. That this instruction was too favourable for the plaintiff, we refer to Pennsylania Railroad Company v. Aspell, 11 Harris 147; Hartfield v. Roper, 21 Wend. 615; Railroad Company v. Patchin, 16 Ill. 198; Munger v. Tonawanda Railroad Company, 4 Comst. 359; Willets v. Buffalo and Rochester Railroad Company, 14 Barb. 585; Herring v. Wilm. and Raleigh Railroad Company, 10 Iredell 402.

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

The plaintiff is a minor, who sues for an injury which he alleges was caused by the negligence of the servants of the defendants. On the morning of the 9th of July 1855, when he was about six or seven years of age, he was sent by his father, who resides on Juniata street, in Hollidaysburg, to a carpenter's shop in the neighbourhood, for a basket of shavings. He was accompanied by another small boy. It was necessary for the boys to cross the Allegheny Portage Railroad, which they did by the public crossing. On their return, they found this passage blocked up by a train of railroad cars. There were twelve or thirteen cars in the train, the hindmost, or the next to the hindmost car being on the crossing, and immediately behind this train there was a train of empty coal cars. The boys attempted to pass under the car that stood on the crossing, and whilst in the act of doing so, Green, who was McFadden's driver, having hitched horses to the foremost car, started the train, and the wheels of one or more of the cars passed over both of the feet of the plaintiff, crushing them in such manner that to save his life both legs had to be amputated.

The defendants, whom he sues for damages, are transporters on that railroad, having a warehouse at Hollidaysburg, and were the owners of the cars, and the lumber with which they were laden. Their agent or conductor, Patrick Hays, had brought the train to that point, had stopped them where the boys found them, and had gone to his breakfast, leaving them for half an hour with nobody in charge. It seems, that the general usage of the road is, for cars to run down from Gaysport to the vicinity of the warehouses by their own gravity, and that they are hauled from where they stop to the proper warehouse by horses. McFadden keeps horses for this purpose, and serves not only these defendants, but all the transporters at Hollidaysburg.

This is a brief outline of the material facts of the case.

The instructions which the learned court gave to the jury, may be summed up under three heads as follows: —

1st. Assuming it to be true, that the cars were unlawfully obstructing the public crossing or highway, that was not the direct or immediate cause of the injury, but the moving of the cars by McFadden's driver was the proximate cause; and that McFadden and his driver were not the agents of the defendants, for whose negligence the defendants would be responsible.

2d. That it was a question of fact whether, though the cars were upon the crossing, they were an unlawful obstruction by the defendants or their servants. This would depend upon the question whether it might reasonably have been avoided.

3d. But, assuming the defendants to have unlawfully obstructed the crossing, and that such obstruction was the proximate cause of the injury, the question recurred, was there concurring negligence on the part of the plaintiff — or in other words, might it not have been avoided by the exercise of ordinary care by the plaintiff?

On this head the learned judge, with an intimation of his own opinion the other way, recognised the position of the plaintiff's counsel — that the negligence or want of ordinary care of plaintiff, which, concurring with the negligence of the defendants, would destroy the right of action, was to be judged of from all the circumstances, and in view of the age and capacity of the party injured — and then restated the question in these words: "Has or has not a boy, who is capable of performing an errand, sufficient intelligence and discretion to know the hazard of creeping under a train of cars liable to be started any moment? And had or had not the plaintiff such intelligence and discretion? And this you, gentlemen, will determine from the evidence, if in coming to a conclusion the case should turn upon this question."

The plaintiff had small chance of a verdict under these instructions. Indeed, the cause was decided against him upon the first head, for if McFadden and his driver were not defendants' agents, and yet were the authors of the proximate cause of the injury, the action should manifestly have been against them, and would not lie against the defendants.

The conclusiveness of the charge against the plaintiff is no objection to it, if it was right in point of law. Whether it was so or not is the question to be considered upon the errors assigned; and in considering it, I will observe the same order of arrangement the court below did.

1st. The distinction taken by the learned judge betwixt causa proxima and causa remota, correct enough as an abstract definition of law, strikes us as wholly inapplicable to the circumstances of this case.

The defendants were transporters on a public highway. That highway belonged to the state, and was governed by the canal commissioners, who had authority to employ all the motive power of the road, and to prescribe rules and regulations in respect to all the business of the road.

As the cause was tried, or, at least, as it is presented on our paper-books, McFadden's relation to the road is nowhere explained; but, in the absence of special information on the point, we will presume that he was the contractor, with the canal commissioners, for the supply of animal power on that part of the Portage Railroad, in pursuance of the Act of 27th February 1835. If so, he was the state's agent, engaged in serving transporters with the removal of their cars, from point to point, as their business and convenience demanded.

Whoever will look through the "Railway Rules and Regulations," prescribed by the canal commissioners, and to be found in the appendix of the volume entitled, "Internal Improvement Laws," will see that every car on the road, belonging to private individuals, is to be attended, at all times, by the owner or conductor. The owner or conductor is to submit every car for inspection and weight — is to have its number and weight painted on the side — is to register it — is to obtain a collector's clearance for every trip; "and when the owner or conductor has more than one car under his charge," says section 63, "the collector may include the whole train in the same clearance." Throughout the great variety of minute regulations with which this code abounds, the owner or conductor is contemplated as the ever-present party, in charge of the car or the train. Sometimes the cars are propelled by steam, sometimes by gravitation, sometimes by horsepower; but everywhere, and at all times, the owner or conductor attends them, and determines the times and places of starting and stopping, and the rates of speed. He is under certain legal restraints on all these subjects; but everybody else, concerned in the transportation of his train, is under his authority.

Such, in substance, is the mode in which incorporated companies also regulate the business on their railroads. And where there are no prescript rules, the usage or common law of railroads makes the conductor the responsible agent in the conduct of the train. It is of...