Lewistown gazette. [volume] (Lewistown, Pa.) 1843-1944, 1858-03-25
New series---yol. Il LII, :.
LIABILITY 0F RAILROADseaugre
RY TO PASS ENGEfl af,,,.o..,
EUGENE SULLIVAN VS.. THE pHILfssS9a,, j,

y n
Negligence Obligation Of Roil,d. 1sday =
Of Passengers Ecidence- Fencia,@-.aan CO.
This case came up writ Of err e. at ty
Common Pleas of Chester co,fF2 9e.
opinion of the court was delivered by "a mr.
WOODWARD, J.-When railroad company
undertakes the transportation of passenger
for an agreed price, the contract includes
many things On the part Of the passenger,
his consent is implied to all the companys
reasonable rules and regulations, for entering,
occupying, and leaving their cars; and if in
jury befal him by reason of his disregard of
regulations which are necessary to the con-
tract of the business, the company are not
liable in damages, even though the negligence
Of their servants coneurred with his own
negligence in causing the mischief.
On the part of the company, the CONTRACT
implied that they are provided with a safe
and sufficient railroad to the point indicated ;;
that their cars are staunch and roadworthy !;
that means have been taken beforehand to
guard against every apparent danger that
may besct the passenger; and that the SER
wants in charge are tried, sober, competent
men. When, in performing this contract,
they hurt a passenger without fault of his,
the law raises prima facie a presumption of
negligence, and throws on the company the
onus of showing it did not exist. This may
be shown, and the legal presumption repelled,
by proving that the injury resulted from in
eVitable accident, or as it is commonly called,
the act Of God, or that it was caused by some,
thing against which no human foresight and
prudence could provide. What these can do
for the safety of the passenger, the law re-
quires the Transporting company to do.
But as presumptions of law are always for
the court to pronounce, SO are the repelling
circumstances relied on for thejury The le-
gal presumption, which Is only an inference
from general experience, remains of force un-
til a countervailing presumption of fact is es-
tablished and as this is a conclusion drawn
from particular circumstances, it is for the jury
to consider these circumstances, and to deteI..
mine what is the reasonable deduction.
Yet the court below not only failed to pre-
sumo negligence from the fact of injury, but
instructed the jury that if they believed the
testimony in the cause. there was no negli--
gcnce on the part Of the defendant or its
agents.
Again, even more pointedly, the learned
judge said, mo proof of negligence has been
exhibited against the agents and engineer,
which would authorize me to submit it to the.
consideration of the jury" This was with
drawing from the jury a case that ought to
have been submitted, with very different in
strnctions. The plaintiff was in no fault he
had taken his seat within the car, and in ALI
respects had demeaned himself as an orderly
passenger. Yet he was injured by the over
throw of the car in which he was seated.
Here was a breach of the company's con-
tract, and here was what has several times.
been said by this court, to be evidence of the
cumpany's neglect Barr, 4S3, IL Ell. 469.
Then if the court thought there was evidence
which was calculated to repe this prima facie
presumption Of negligence, they should have
submitted it to the jury.
Whether that spot IN the road was not so
commonly infested With cows as to require a
fence or cattle guard Of some sort whether
the speed Of the cars was not too great Tor d
curve, exposed at all times to the incursions
Of cattle; whether the engineer discover
ed the cow as soon as he might, and used his
best endeavurs to avert a collsion-in word
whether the accident was such as no foresight
on the part OF the company or Its servants
could have prevented; these were questions,
and grave ones, too, thar ought to have been
submitted to the jury.
The learned judge after stating correctly
the extreme care and vigilance which the law
exacts of railroad companies, asks if they
are required to provide suitable fences and
guards to keep cattle off the read In
answering his question in the negative, the
Judge seems to have misapplied the reasons
ing Of Judge Gibson in SINNERS case, II.
29S. That was an action by the owner of a
cow killed un Il railroad TO recover her value
from the company and the doctrine laid
down, was that the owner was a wrong doer,
in suffering his cow to wander on a road en-
gagged in transporting passengers, and was rath-
er liable for damages, than entitled to recover
them. The owner of the COW could not In
sist that the company should fence their road
| for the protection of his stock. 1t was his
business to keep his cattle within his own
bounds. Now, such reasoning between a
railway company and trespasser, commends
itself to every mans understanding, because
it tends to the security of the passenger. If
farmers cannot make companies pay for in
juring cattle, but they involve themselves in
liability for suffering their cattle to run at
large, passengers are ali the more secure from
this kind of obstruction.
But when, notwithstanding the strong mo-
tive for keeping cattle off the road, a cow is
found there, and causes an injury to pas
senger whom the company have undertaken
to carry safely, is 1t an answer to the passen-
ger suing for damages, that the owner of the
COW had no right to let her run at large !?
Grant that she was unlawfully at large, and
grant that the owner is bound to indemnify
the company for the mischief she caused, yet
as between the company and its passenger, Ii
aDlHty Is To be measured by the terms OF
their contract.
Having undertaken to carry safely, and
holding themselves out to the world as able
to do so. they are not to suffer COWS to en-
danger the life of the passenger, any more
than defective rail or axle. Whether they
maintain an armed police at cross roads as is
! done by similar companies in Europe; or
fence, or place cattle-guards within the bed of
their road, or by other contrivance, exclude
this risk, is for themselves to consider and
determine. We do not say they are bound
to do the one or the other, but if, by sone
means, they de not exclude the risk, they arc
bound to respond in damages when injury &C
crues