Scowden v. Erie R. Co.

• Decision Date: 28 July 1904
• Docket Number: 146-1904
• Citation: 26 Pa.Super. 15
• Parties: Scowden v. Erie Railroad Company, Appellant
• Court: Pennsylvania Superior Court

26 Pa.Super. 15

Scowden v. Erie Railroad Company, Appellant

No. 146-1904

Superior Court of Pennsylvania

July 28, 1904

Argued May 17, 1904

Appeal by defendant, from judgment of C.P. Crawford Co.-1902, No 75, on verdict for plaintiff in case of Edward A. Scowden v Erie Railroad Company.

Trespass to recover damages for the killing of horses. Before Thomas P. J.

The facts are stated in the opinion of the Superior Court.

Verdict and judgment for plaintiff for $ 254.59. Defendant appealed.

Error assigned was in not giving binding instructions for defendant.

Reversed.

F. P. Ray, for appellant. -- The present action is an action of tort, and such action does not lie for the loss of plaintiff's horses because of the obligation on the part of the defendant, appellant, to build and maintain the fences under the contract of January 24, 1863: Drake v. Phila. & Erie R. R. Co., 51 Pa. 240.

The fact concerning the dilapidated and broken down fence sworn to by Henry Klippel, one of the plaintiff's witnesses, were undisputed and admitted, therefore the court should have declared the law applicable thereto, and have taken the case from the jury: Gates v. Penna. Railroad Co., 154 Pa. 566.

Contributory negligence in any degree on part of the plaintiff will prevent recovery in an action for damages: Monongahela City v. Fischer, 111 Pa. 9; Del., etc., R. R. Co. v. Cadow, 150 Pa. 559; Drake v. R. R. Co., 51 Pa. 240.

Thomas Roddy, for appellee. -- To ascertain whether the negligence be the approximate cause of the accident, it must appear that the injury was the natural and probable consequence of the negligence; such a consequence as under the surrounding circumstances of the case, might, or ought to have been, foreseen: Yoders v. Amwell Twp., 172 Pa. 447; Scott & Co. v. Ry. Co., 172 Pa. 647; Swanson v. Crandall, 2 Pa.Super. 85; Stephenson v. Penna. R. R. Co., 20 Pa.Super. 157; Thomas v. R. R. Co., 194 Pa. 511.

If plaintiff's testimony make out a clear case, it must go to the jury even though his own witnesses contradict it: Conyngham v. Erie Electric Motor Co., 15 Pa.Super. 573; Todd v. Railway Co., 201 Pa. 558.

Before Rice, P. J., Beaver, Orlady, Porter, and Morrison, JJ. Orlady, J., dissents.

OPINION

MORRISON, J.

The railroad operated by the defendant company runs through the plaintiff's farm. For sometime prior to the injury complained of the plaintiff had been pasturing his horses in a field which was separated from the railroad by a fence. The plaintiff alleged and proved that this fence had been for some time decayed and dilapidated and in an unsafe condition, but notwithstanding this he continued to pasture his horses in this field until they pushed or broke down the fence and strayed upon the railroad track and were killed by one of the defendant's regular trains. Thereupon the plaintiff brought this action of trespass for the recovery of damages caused as he alleges by the negligence of the defendant. The testimony shows, and it was practically conceded at the argument, that the train which killed the horses was being run in the usual and ordinary manner, and that there was no negligence in the management of said train. The case was permitted to go to the jury and resulted in a verdict for the plaintiff for $ 254.59, and judgment being entered thereon the defendant appealed. The sole ground upon which the plaintiff alleges his right to recover grows out of the duties and obligations and benefits created by a written contract between Jacob Trace, plaintiff's predecessor in title, and the Atlantic & Great Western Railroad Company, dated January 24, 1863. By this contract Jacob Trace in consideration of $ 325 and the agreement to build and maintain fences and crossings by the company granted unto the Atlantic & Great Western Railroad Company a right of way for location and construction and use of its railroad, branches and sidings over and across his land. The plaintiff's contention is that by the terms of this contract a duty rested upon the defendant to keep and maintain the fence between his pasture and the railroad in reasonably safe condition, and that a failure to do so was negligence which rendered the defendant company liable in an action of tort.

That the defendant company has succeeded to the obligations and duties as well as the rights of the Atlantic & Great Western Railroad Company, including those which arise upon contract as well as those imposed by statute seems to be clear. It is also clear that the plaintiff is entitled to the benefits of said contract. That the covenants in the said contract for building and maintaining the fences are covenants running with the land and binding on a successor to the company which entered into the contract, seems to be settled by Kelly v. Nypano R. R. Co., 200 Pa. 229.

It is strongly contended by the learned counsel for the defendant that the plaintiff cannot recover in tort for the defendant's failure to keep the fence in good repair, as required by the contract of January 24, 1863; and that the only remedy open to the plaintiff is an action founded on a breach of said contract, citing, Drake v. Phila. & Erie R. R. Co., 51 Pa. 240.

But we think the plaintiff by his own undisputed testimony, has shown such contributory negligence as...