Reeves v. The Delaware, Lackawanna and Western Railroad Co.
| Decision Date | 01 January 1858 |
| Citation | 30 Pa. 454 |
| Parties | Reeves versus The Delaware, Lackawanna and Western Railroad Company. |
| Court | Pennsylvania Supreme Court |
B. S. Bentley and R. B. Little, for the plaintiff in error.
W. & W. H. Jessup, for the defendants in error.
The errors assigned are not founded upon answers to specific instructions prayed for, but upon dismembered sentences of the charge. It is impossible to conceive of a more unsatisfactory mode of reviewing a legal opinion. It is neither analysis nor criticism, but rude surgery — mere amputation. No written document, not even that of inspired pens, can bear such mutilation. What the court became responsible for, no particular instructions being asked, was the general effect of their charge on the minds of the jury, and this is to be judged of, not by sentences culled here and there, but by the salient points of the charge, and the thoughts that permeate it through and through. If, as a whole, the charge was calculated to mislead the jury, there is error on the record; if not, there is none. Mere omissions to say what might have been properly said, are no just ground of complaint by a party who submitted no propositions, and suggested no views of the testimony for the consideration of the court. Judges are entitled to expect this kind of assistance from counsel, and when it is not rendered, counsel may still have the benefit of errors of commission, but they should not complain of omissions.
This case, though falling within a class that is becoming very numerous, under our extensive system of railroads, is in some of its features peculiar and difficult.
That the plaintiff had a right to travel the turnpike road with his drove of cattle, is not denied, but it is insisted that it was an extraordinary and unusual use of the highway, and should have been attended with a correspondent degree of care on the part of the drover.
A large drove of cattle is, it is true, an unwieldy body to manage, but we cannot regard its presence on the turnpike as extraordinary. To facilitate the driving of cattle to the eastern markets was one of the purposes for which so many turnpike roads, pointing westward, were built; and they have always been extensively used for this purpose. The railroad company were bound to take notice of this fact, when they located their road across the turnpike, and in its immediate vicinity for a considerable distance. They knew that large droves of cattle were accustomed to travel there; that drovers had the prior right; and the provision of the charter that the railroad should be so constructed as not to obstruct the travel on the turnpike, was declaratory of the plaintiff's common law right, which he enjoyed, in common with all the public, to travel the turnpike with droves as well as with teams.
Still he was bound to use reasonable care. The unquestionableness of his right of transit did not release him from the obligation of that degree of diligence and prudence, which men in his situation ordinarily exercise. He was a drover of a large herd of fat cattle; he was in the vicinity of a railroad on which locomotive trains are entitled and accustomed to run; he was approaching a crossing at grade; he knew that a train, that was behind time, was momentarily expected to be at that point. Such was his situation. Now whatever prudent men in general would do or forbear to do in these circumstances, was the rule by which the plaintiff was bound to regulate his conduct.
But one other circumstance must be mentioned as affecting the situation of the plaintiff, and entering into the rule of duty. It was his right to presume that the agents of the company would exercise reasonable care on their part in the conduct of the train. What was reasonable care on their part? They were the servants of a company who had located their railroad parallel to, and in the vicinity of a turnpike which they crossed at grade, and on which droves of cattle were accustomed to travel. The point of crossing was approached, by cars going south, through a thorough cut and curve. For some half mile before coming to the cut, the turnpike is in full view of persons on a train of cars, and the plaintiff's cattle were stretched along that part of the turnpike, and were therefore visible by the engineer.
Duties grow out of circumstances. And, in view of these circumstances, we have no hesitation in declaring that it was the duty of the engineer to observe the cattle on the turnpike, and to presume that the head of the drove might be at the crossing, or so near thereto as to make it prudent to moderate the rate of his speed in such degree as to give him entire control of the engine. It is said the engineer did not see the cattle, and could not look, because he had to keep his eye on the track. But that was because he was going too fast. Dashing forward with such Jehu speed as to be unable to see a drove of cattle half a mile long, was a very rash mode of approaching the crossing of a great public thoroughfare, which must be approached, as he very well knew, on a curve, and after issuing from a cut that would, more or less, obstruct his view.
Without laying down any general rule as to the manner in which that crossing or similar ones should be approached, the engineer was bound, in the circumstances of this case, to approach it at a perfectly manageable rate of speed, and what he was bound to do the plaintiff had a right to presume would be done. And the measures of precaution taken or omitted by the plaintiff, cannot be properly estimated without allowing him the full benefit of this presumption.
Such is the rule on common highways, as well as in river and ocean navigation. Each driver presumes every other whom he meets will keep to the right, and takes his own measures accordingly. And so with sailing vessels. If both vessels have the wind free or abeam, they must both keep to the right. Each must calculate on this course being taken by the other. To avoid collision each must act according to rule, and must presume that the other...
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...to infant trespassers. See Railroad v. Hummell, 44 Pa. 375, 84 Am. Dec. 457;Brown v. Lynn, 31 Pa. 510, 72 Am. Dec. 768;Reeves v. Railroad, 30 Pa. 454, 72 Am. Dec. 713. It will not create liability that the standing cars were approached by a train moving at the rate of some six miles an hour......
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...“[d]evelopment of the so-called ‘stop, look and listen’ doctrine originated over a century ago,” in the case of Reeves v. Del., Lackawanna & W. R.R. Co., 30 Pa. 454 (Pa.1858), where “the court determined that a traveler on a public highway ‘is bound to stop and look out for trains.’ ” Briac......
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