Van Steuben v. Central R.R. Co. of New Jersey

• Decision Date: 11 November 1896
• Docket Number: 87
• Citation: 35 A. 992,178 Pa. 367
• Parties: Simon D. Van Steuben, Appellant, v. The Central R.R. Co. of New Jersey
• Court: Pennsylvania Supreme Court

35 A. 992

178 Pa. 367

Simon D. Van Steuben, Appellant, v. The Central R.R. Co. of New Jersey

No. 87

Supreme Court of Pennsylvania

November 11, 1896

Argued March 9, 1896

Appeal, No. 87, July T., 1895, by plaintiff, from judgment of C.P. Northampton Co., July T., 1895, No. 87, on verdict for defendant. Reversed.

Trespass to recover damages for property alleged to have been destroyed by fire through the negligence of defendant. Before SCOTT, J.

The facts appear by the opinion of the Supreme Court.

Plaintiff by nine separate offers, proposed to prove by Joseph Applegate, Eugene Graver, Bishop Judd, John Ruple, William Root, William R. Wohlback, Eugene Kindt, Edna Redener and Mrs. Emma Kindt, that during that summer, and shortly before and shortly after the particular fire which caused the destruction of the buildings and property for which the present action is brought, there were large sparks of fire thrown by passing locomotives on this railroad, of the size of a man's fist, a walnut, a hickory nut, a considerable distance from the track, and that many of them were thrown in the air as high as a hundred feet.

The offer was objected to as incompetent and irrelevant.

By the Court: The objection is sustained because the proposition of the plaintiff does not embrace an offer of proof that the emission of these sparks was from the engine identified as No. 315, and for the reasons given by the court in granting the defendant's motion to strike out this testimony. Plaintiff excepts. Bill sealed. [3, 4, 5, 6, 7, 8, 9, 10 11.]

Plaintiff offered to prove by Mrs. Amelia Steuben that during the time that she lived upon this farm a coal of fire was thrown from a locomotive on the track of this railroad in question and was thrown upon the porch in front of the summerhouse; to be followed with proof that the distance from the place where the locomotive was at the time to the place on the porch where the coal fell was one hundred and seventeen feet, for the purpose of showing the possibility that a coal of fire could be thrown this distance, as is indicated by the evidence where this fire commenced at this time. It is not offered for the purpose especially with regard to this particular locomotive.

The offer was objected to as incompetent and irrelevant.

Objection sustained and bill sealed for plaintiff. [12]

The court gave binding instructions for defendant. [1, 2]

Errors assigned were (1, 2) binding instructions for defendant; (3, 12) rulings on evidence, quoting the bills of exceptions.

Judgment reversed and venire facias de novo awarded.

O. H. Meyers, and W. S. Kirkpatrick, for appellant. -- The evidence as to the defendant's negligence in the management of its locomotive was sufficient to submit to the jury: Henderson v. R.R., 144 Pa. 477; P. & R.R. Co. v. Hendrickson, 80 Pa. 185; R.R. v. Schultz, 93 Pa. 341; Lehigh Valley R.R. v. McKeen, 90 Pa. 123; R.R. v. Watson, 81 * Pa. 293. The court virtually decides that the testimony of Edna Redener cannot be considered by the jury and that, if they do, they must give no effect to it whatever. This is legal heresy, pure and simple: Ely v. R.R., 158 Pa. 233; Kohler v. Penna. R.R., 135 Pa. 346; Glase v. Phila., 169 Pa. 492; Huyett v. R.R., 23 Pa. 374; Longenecker v. R.R., 105 Pa. 332.

The Central Railroad Company of New Jersey had no legal authority under the Pennsylvania statutes to lease the Lehigh & Susquehanna Railroad to the Port Reading Railroad Company, a foreign corporation: Act of April 23, 1861, sec. 1, P.L. 410; Act of March 17, 1869, sec. 1, P.L. 11; Act of February 17, 1870, sec. 1, P.L. 31; Abbott v. R.R., 80 N.Y. 27; Ohio & Miss. R.R. v. Dunbar, 20 Ill. 623; 1 Redfield on Railways, sec. 142, Pl. 2; Ottawa R.R. v. Black, 79 Ill. 262; Troy & Boston R.R. v. B., H.T. & W.R.R., 86 N.Y. 107; Shrewsbury & B.R.R. v. L. & N.B.R.R. Co., 8 House of Lords, 113; Pierce on Railroads, 283; 5 Cases in Gen. Dig. (U.S). 1752, Pl. 18.

The lease of the Central Railroad Co., if in fact to the Reading, was not a lawful lease of its L. & S. railroad and property, under the laws of New Jersey: Attorney General v. C.R.R. Co. of N.J., 50 N.J. Law, 52.

Edward J. Fox, with him, James W. Fox, for appellee. -- There was no sufficient proof of negligence: Henderson v. R.R., 144 Pa. 487; Kohler v. R.R., 136 Pa. 346; Ely v. R.R., 158 Pa. 233; Ford v. Anderson, 139 Pa. 261; R.R. v. Yerger, 73 Pa. 121; Whelan v. Hardisty, 8 El. & Bl. 262; Jennings v. R.R., 93 Pa. 337; Post v. R.R., 108 Pa. 585; Erie Ry. v. Decker, 78 Pa. 293; R.R. v. Page, 21 W.N.C. 52; Huyett v. R.R., 23 Pa. 374; Hendrickson v. R.R., 80 Pa. 189; Longenecker v. R.R., 105 Pa. 332; R.R. v. Jones, 128 Pa. 314.

Where a statute authorizes a lease, the lessee assumes during the existence of the lease all the duties and obligations of the lessor and, from the time that it enters upon the possession of the road, becomes solely liable for all injuries resulting from its management unless it is operating the road in the name of the lessor: Wood on Railway Law, sec. 490; Ditchett v. R.R., 67 N.Y. 425; Miller v. R.R., 47 Am. & Eng. R.R. Cases, 369; Arrowsmith v. R.R., 59 Am. & Eng. R.R. Cases, 79; Com. v. South Penna. R.R., 1 Pa. C.C. 214; Gummere v. Lehigh Valley R.R., 12 Pa. C.C. 106.

Before STERRETT, C.J., WILLIAMS, McCOLLUM, DEAN and FELL, JJ.

OPINION

MR. JUSTICE McCOLLUM:

Three questions are raised by the specifications of error: (1) Was the action, in view of the leases given in evidence, maintainable against the defendant? (2) Was there sufficient evidence of negligence to submit to the jury? (3) Was the evidence as to the condition of the unidentified engines properly excluded? These questions will be considered in the order in which they are stated.

The action was brought to recover damages for the destruction of plaintiff's buildings by fire caused by the alleged negligence of the defendant as the lessee of the Lehigh & Susquehanna Railroad. To fix the liability upon the defendant company, the plaintiff gave in evidence the charter of the Lehigh Coal & Navigation Company, under which the Lehigh & Susquehanna Railroad was constructed, and the charter of the defendant company, a corporation of the state of New Jersey, and a lease of the former road by the latter company for a period of nine hundred and ninety-nine years, dated March 31, 1871. The defendant gave in evidence a lease dated February 12, 1892, by the defendant company to the Port Reading Railroad Company, a corporation of the state of New Jersey, of their railroads and leased roads, including the Lehigh & Susquehanna Railroad, with the rolling stock, for the balance of the term of nine hundred and ninety-nine years. The Port Reading Railroad was projected to extend "from a point on the Bound Brook Railroad to a point on the Arthur Kill on the Staten Island Sound," and was not shown to form a continuous route with the Lehigh & Susquehanna Railroad, and was unfinished at the time of the execution of the lease. The plaintiff in rebuttal gave in evidence a lease, dated February 11, 1892, of the Lehigh Valley Railroad Company of their roads in Pennsylvania, with the rolling stock, to the Philadelphia & Reading Railroad Company for a term of nine hundred and ninety-nine years, together with a tripartite agreement dated February 12, 1892, between the defendant company, the Philadelphia & Reading Railroad Company and the Port Reading Railroad Company, and further evidence to show that the Philadelphia & Reading Railroad Company, and not the Port Reading Railroad Company, was the real lessee from the defendant company, in contravention of the laws of Pennsylvania inhibiting the merger of parallel and competing lines, and the laws of New Jersey restricting the execution of leases made by foreign corporations. The court took the case from the jury, one of the grounds specified being that under the evidence the action was not brought against the proper party.

The plaintiff's evidence given in chief was sufficient to establish a liability on the part of the defendant for negligence until overcome by countervailing evidence on the part of the defendant. If the defendant's evidence is insufficient for that purpose it will not be necessary to consider the testimony in rebuttal. The first question which presents itself for consideration therefore is whether the lease of the defendant company to the Port Reading Railroad Company was valid.

The general rule of law governing the execution of railroad leases is thus stated by Mr. Justice SHARSWOOD in the Pittsburg & Connellsville Railroad Company v. The Bedford & Bridgeport Railroad Company, 81* Pa. 104: "One railroad company cannot lease to another its franchise of operating a road built or authorized to be built, unless it can show a grant of power from the sovereign in express terms or by necessary implication. In England, courts of equity have frequently enjoined railroad companies from carrying leasing contracts into effect which wanted the express authority of Parliament: 1 Redfield on Railroads, 592. The general canon of construction applicable to legislative grants of this class, derogating as they do from common right and public policy, requires that the intention should be very manifest, if not to be unequivocally expressed, at all events not to depend upon ambiguous phrases rendering the implication doubtful." Pittsburg, etc., Railroad Co. v. Allegheny County, 63 Pa. 126, and Stewart's Appeal, 56 Pa. 413, are authorities for the same principle.

The defendant points to the statute of New Jersey for its authority for the execution of the lease by which it seeks to escape liability. But the defendant company and the Port Reading Company are foreign corporations, and this leads us to inquire, what is their...