The Frankford & Bristol Turnpike Co. v. The Philadelphia & Trenton Railroad Co.

• Decision Date: 13 May 1867
• Citation: 54 Pa. 345
• Parties: The Frankford and Bristol Turnpike Co. v. The Philadelphia and Trenton Railroad Co.
• Court: Pennsylvania Supreme Court

54 Pa. 345

The Frankford and Bristol Turnpike Co. v. The Philadelphia and Trenton Railroad Co.

Supreme Court of Pennsylvania.

May 13, 1867

February 19, 1867

1. There being in the charter of a railroad company no prescribed limit of approach towards buildings and bridges the company may locate their roads and stations on such route and at such points as in their judgment will be beneficial to their own and the public interest.

2. The emission of sparks from the stack of a locomotive is not in itself illegal, and the loss of property adjacent to a railroad from the sparks apart from misuse, is damnum absque injuria.

3. The law in conferring the right to use an element of danger protects the person using it, except for the abuse of his privilege, but in proportion to its danger will arise the degree of caution and care he must use.

4. Great danger demands higher vigilance and more efficient means to secure safety.

5. It is the duty of railroad companies running their engines close to buildings, to use the utmost vigilance and foresight to avoid injury.

6. It is the duty of companies to control their engines carefully to adopt every known safeguard, and to avail themselves from time to time of every approved invention to lessen their danger.

7. Questions of skill, vigilance, care and proper management in any business, are questions of fact to be referred to the jury.

8. The degree of care having no legal standard, such care must be required as is ordinarily sufficient under similar circumstances to avoid the danger and secure the safety needed.

9. It is the duty of railroad companies to adopt the best precautions against danger in use, and it is not sufficient for them to exercise what under circumstances of less risk would be ordinary care.

10?? The court below charged, " if the defendants used ordinary skill in procuring a good and safe spark-catcher such as are most in use in the country and approved by experienced railroad operators and mechanics, they would not be required to use any other or greater care or skill in respect to the spark-catcher used by them." Held, not to be error.

11. Evidence of the practice and common use of a stack by many others in the same business is admissible on the question of the safety of the stack.

12. If the construction of the stack was that which was best adapted for the purposes in known practical use, the duty of the company was performed.

13. Negligence is the absence of care according to the circumstances.

Before WOODWARD, C. J., THOMPSON, STRONG and AGNEW, JJ.

READ J., sick.

Certificate from Nisi Prius.

This was an action on the case to January Term 1866, by The Frankford and Bristol Turnpike Road Company against The Philadelphia and Trenton Railroad Company, for compensation for the burning of a bridge of the plaintiffs.

The plaintiffs were a company incorporated to make a turnpike road from Philadelphia to Morrisville, on the Delaware river. In 1805 they were authorized to build a bridge over Neshaminy creek, near Bristol, Bucks county. The bridge was a wooden superstructure on stone piers, and was built shortly after they obtained the authority.

About 1832 the defendants located their railroad and bridge near the turnpike; the distance between the roads at the northern end of the bridge was forty or fifty yards. Since that time the defendants located a station about 400 feet north of the bridge for the accommodation of the people at Bridgewater near the bridge. It was shown that an engine under ordinary headway would run 600 feet with the steam shut off, but stopping at the station, required putting on steam to carry the train over the defendants' bridge. On the 29th of April, shortly after a train of defendants had passed, the bridge of plaintiffs was discovered to be on fire, and was soon destroyed. There was evidence of the emission of sparks having been seen at the time the train passed. The fuel used was wood, and the spark-catcher on the engine was the " Yankee Stack." The proof was that this stack was most generally in use in the northern part of the United States, but not so much in the southern states. Several other kinds of stacks were spoken of by the witnesses, and different opinions given as to their comparative merits. The general opinion was, that the Yankee Stack was amongst the best arrangements for steaming purposes; but there was evidence that there were others in use which were more secure as to the emission of sparks. There were different opinions expressed as to the comparative danger of wood and coal for fuel.

The plaintiffs requested the court to charge:--

1. If the defendants neglected to supply the engine, which is alleged to have fired plaintiffs' bridge, with the best and most perfect form of spark-catcher in use, for the purpose of guarding against the emission of sparks, and if, in consequence of such neglect, sparks were emitted which fired the plaintiffs' bridge, that without some proof of concurring neglect on the part of plaintiffs in originating the fire, they are entitled to recover.

2. If the defendants located their railroad in close proximity to the plaintiffs' bridge, after the erection of the latter, it became incumbent upon them, in the management of their engines, to use very great vigilance, and adopt every precaution to guard the plaintiffs against injury therefrom.

3. It was incumbent upon the defendants to use such fuel in propelling their engines as would, whilst enabling them to obtain a proper degree of speed, be least liable to endanger the plaintiffs' bridge by the emission of sparks.

4. It was the duty of the defendants to provide themselves with the best and most approved form of spark-catcher in use, for the purpose of guarding against the emission of sparks, and if they failed so to provide themselves with such spark-catcher, this is evidence of negligence on their part.

5. If it was possible for defendants, whilst running under an ordinary head of steam, to have shut it off, and run by plaintiffs' bridge without emitting sparks, and that, by stopping at a station a short distance above the bridge, they were prevented taking this precaution, this is evidence of carelessness on part of defendants.

THOMPSON, J., before whom the case was tried, answered:--

" 1 and 4. The degree of care to be observed by the defendants is ordinary care, and the absence of this care, if it appear by sufficient proof, is evidence of negligence. I therefore say, that if the defendants used ordinary care and skill in procuring good and safe spark-arresters, such as are most in use in the country, and approved by experienced railroad operators and mechanics, they would not be required to use any other or greater care or skill in respect to the character of the spark-arrester used by them. If having exercised this care, and used ordinary skill and care in using it and their engine at the time of the accident, they would not be answerable. Did the company (the defendants) fail in due care in this particular? If so, the plaintiffs are entitled to recover if the fire was communicated from the defendants' engine. If, on the contrary, this care was exercised by the defendants, the plaintiffs cannot recover.

2. If the defendants used ordinary care in view of the circumstances of the station, it is all that is required.

3. In regard to fuel the same rule of ordinary care applies. Was the fuel used on this occasion any other than ordinary fuel? Indeed, there is some diversity as to whether coal or wood emits most sparks, or is the most dangerous species of fuel.

5. I decline to answer this point in the affirmative, but say to you that the defendants are answerable only for the want of ordinary care and skill in the particulars referred to in this point. To require the defendants to do everything possible to avoid injury to the plaintiffs' property, is asking too high a degree of care, and one not required by law."

There was a verdict for the defendants; and the answers to the points were the errors assigned.

J. G. Johnson and W. F. Judson, for plaintiffs in error.--It is the duty of railroad companies to adopt the best precautions against danger in use, and it is not sufficient for them to exercise what, under circumstances of less risk, would be ordinary care: Kelsey v. Barney, 2 Kern. 425. Where the risk is great, great vigilance is demanded; where it is small, less will suffice. Ordinary prudence would dictate the adoption, not of ordinary precautions, but of the best in known use: Freemantle v. L. and N.W. Railway Co., 100 E. C. L. R. 95; 8 Jur. Negligence; Ford v. London and S.W. Railway Co., 2 F. & F. 730; 8 Barb. 366; Id. 427; Rood v. New York and Erie Railroad, 18 Id. 80; Vaughan v. Taff Vale Railway Co., 5 H. & N. 684.

As to the true standard by which to judge the means employed; Bradley v. Boston and M. Railroad Co., 2 Cush. 540.

From the peculiar position and construction of the bridge, in consequence of the defendants locating their track close to it, it was unusually exposed, and extra care was required: New York and Erie Railroad v. Young, 9 Casey 175; Fletcher v. Boston Railroad, 1 Allen 9; Wilde v. Hudson River Railroad, 33 Barb. 503; Johnson v. Hudson River Railroad, 20 N.Y. 65.

" Negligence," in Vaughan v. Taff Vale Railway Co., 5 H. & N. 686, was defined as " an absence of care according to the circumstances:" Bilbee v. Railway Co., 114 E. C. L. R. 592; Penna. Railroad v Ogier, 11 Casey 72; Penna. Co. v. Kilgore, 8 Id. 296; Beatty v. Gilmore, 4 Harris 465; Reeves v. Del. and Lack. Railroad, 6 Casey 461; Johnson v. Hudson River Railroad, 6 Duer 633; Holmes v. Watson, 5 Casey 459; Phila. and Reading Railroad v. Spearen, 11 Wright 305; Huyett v. Phila. and Reading Railroad, 11...