The Philadelphia and Reading Railroad Co. v. Spearen

• Citation: 47 Pa. 300
• Court: United States State Supreme Court of Pennsylvania
• Decision Date: 21 March 1864
• Parties: The Philadelphia and Reading Railroad Company <I>versus</I> Spearen.

Page 300

47 Pa. 300

The Philadelphia and Reading Railroad Company versus Spearen.

Supreme Court of Pennsylvania.

March 21, 1864.

ERROR to the Common Pleas of Schuylkill county.

W. B. Wells and C. Tower, for plaintiff in error.

Franklin B. Gowen, Thomas R. Bannan, and B. Bartholomew, for defendants in error.

The opinion of the court was delivered, March 21st 1864, by AGNEW, J.

Julia Spearen, a little girl about five years of age at the time of the injury, was returning from school. Instead of going to the proper crossing of the railroad, she went down the track about twenty-five yards below it, and was standing with a little sister beside her uncle, the watchman of the crossing, placed there to guard it.

A coal-train was coming down the track of the railroad, and whistled before it came to the crossing. While passing the place where Julia was, she stood beside her uncle near to the track. Immediately behind the coal train, a light engine, that is, one with its tender only, was coming, distant from the hindmost coal-car, as variously stated, from thirty to fifty yards. The coal-train was running slowly, and the light engine approaching somewhat faster; but the proof is, that a light engine can be stopped within the length of itself and tender, and this one was thus stopped at the time of the accident. Immediately after the coal-train passed, and as the light engine approached, Julia started quickly and ran to cross the track before the light engine. Her uncle and another person near by called to stop her, but she ran forward. Her uncle (the watchman) ran after her, catching her just as the engine struck her, and was himself struck and injured. She was cast forward upon the track, and three of her fingers and part of her hand cut off. On her part it was alleged, the whistle of the light engine was not blown before coming to the crossing above. As is usual in such cases, the plaintiffs' witnesses swore that they did not hear the whistle, while those of the defendants swore it was blown. The plaintiff also alleged, that the light engine was within the distance of the coal-train, forbidden by the company's rules, while the defendants proved, that those rules did not apply to a light engine, which can be safely run "close up." The accident occurred in the daytime.

Upon the undisputed facts, the case is simply one of a little thoughtless child running suddenly to cross before an engine, at a place where the engineer would not expect it, and being knocked down and injured before the engine could be ordinarily stopped. The place where the child stood, the short distance she had to run, the striking of her and of the watchman also, just as they reached the track, and the slow rate at which the engine was running after the coal-train, are facts which in themselves indicate the nature of the case, and prove that the disputed fact, whether the engine whistled before it came to the crossing, could have had nothing to do in causing the injury. On the contrary, the fact that the passengers along the highway, and the little girl herself, who stood beside her uncle, had all been arrested by the passing train, while the light engine was immediately in the rear of it, in full view from the track to any one attempting to cross it; and the calling of the watchman and the person near to him to prevent Julia from crossing, all show that her act was one of childish thoughtlessness and heedlessness, entirely disconnected from the omission to whistle before crossing the highway, and the distance between the trains.

Under these facts, it is very clear that being where she had no right to be, and darting headlong before the engine, had she been an adult of discretion there could be no right of recovery. But being a child, the same degree of caution would not be required of her, and the case would turn upon the conduct of those in charge of the engine which did the injury. The act of the child being the immediate cause of her own injury, it is not the remote negligence of the company we must look to, but the proximate — that is the conduct of the engineer upon the engine at the time of the injury. Hence, the omission to whistle before crossing, or the relatively unsafe distance between the engine and the train before it, cannot determine the case. They did not contribute to the accident, and are no part of the company's neglect of duty to this particular party under the circumstances. The injury was not at the crossing, but below it, where the plaintiff had no right to be; and where there was no duty upon the engineer to suppose she would be. The engine was in full view to any one attempting to cross, and within a few feet of the train which had already arrested the plaintiff's attention and prevented her from crossing. The danger of crossing just before the engine was visible to any one possessing ordinary discretion, and those near to her saw it. She suddenly ran upon the track, and was struck just as she reached it. No time was left to those upon the engine to guard against the injury. The suddenness, shortness of time, and unexpectedness of a child's appearance before the engine made it exceedingly difficult, perhaps impossible, to avoid the injury.

It is manifest that it was not the small distance between the engine and the train which was the cause, but the want of discretion in the child. It is the right of the company to run its trains as far apart or as close as it may choose; for its use of its own road is its right. The rule which forbids approximation of trains too closely is for the protection of themselves, and the property and persons they carry, not a rule having respect to those who travel the highway. For them it is sufficient to be warned of the passing train. A passenger upon the train may well complain of a breach of a rule as to distance of interval made for his protection, because its breach contributes to his injury. But here the distance between the engine and the train had nothing to do with the right of those crossing the track. If the traveller has notice and sees the train or engine, it is his duty to stop — if he cannot pass safely. If he sees two trains, he must stop till both have gone by. He cannot, because one has passed him, throw himself into the very jaws of danger and then claim compensation for his rashness, on the ground that the interval was unsafe as between the trains themselves.

The question here is, was the company by its agents guilty of any breach of duty to the plaintiff when crossing the track. If nothing was done by the person controlling the engine to cause the injury, no cause of action can arise. Nothing is better settled than the right of railroad companies to the lawful use of their roads without let or hindrance of those who have no right to interrupt or molest their enjoyment: Railroad Company v. Skinner, 7 Harris 298; Stucke v. Railroad Company, 7 Am. Law Reg. 733; Railroad Company v. Norton, 12 Harris 465; Philadelphia and Reading Railroad Company v. Hummell, Leg. Int. 1863, March 20th, p. 92.

The engine in this case having safely passed the crossing appropriated to travellers, the engineer was...