Frankford & Bristol Turnpike Co. v. Philadelphia & Trenton Railroad , 1867 Pa. LEXIS 118 ( 1867 )

The opinion of the court was delivered, by

Agnew, J.

The duty of the defendants to provide sufficient spark-catchers for their locomotives, and the degree of care they should use in passing bridges and other structures near their track, are the two questions raised in this case. The right to use steam locomotives on their road is not questioned. No prescribed limit of approach towards buildings and bridges being alleged, the right must be conceded to the company of locating their roads and stations upon such route and at such points as, in the judgment of the directors, would be beneficial to the interest of the corporation and of the public. The proximity of the station and of the line of the road to the plaintiff’s bridge, cannot in itself be considered a ground of legal liability, but an element only in ascertaining the degree of reasonable care to be used under the circumstances. Steam being generated by heat, and there being no known means of producing combustion without a draught of air, which carries off sparks from the fuel, the emission of sparks from the stack of a locomotive is not in itself illegal. A loss of property adjacent to a railroad, from the sparks of a locomotive, apart from misuse, is therefore damnum absque injuria.

The law, in conferring the. right to use an element of danger, protects the person using it, except for his abuse of his privilege. But in proportion to the danger to others will arise the degree of caution and care he must use who exercises the privilege. Great danger demands higher vigilance and more efficient means to secure safety — where the peril is small less will suffice. It is undoubtedly the duty of a railroad company using such dangerous machines fired up to intense heat, and running in close proximity to our houses and valuable buildings, to use the utmost ' vigilance and foresight to avoid injury. The locomotive symbolizes enterprise, and attests the march of improvement and civilization, but social interests are not advanced by refusing to limit its destructive tendencies, and to protect life and property against its misuse. It is the duty of those who use these hazardous agencies to control them carefully, to adopt every known safeguard, and to avail themselves from time to time of every approved invention to lessen their danger to others.

These principles are abundantly supported by the authorities adduced on both sides, which we refer to without a particular citation here. But the difficulty arises in their practical application, Questions of skill, vigilance, care and proper management in any business are necessarily questions of fact and are to be referred to a jury. They depend upon the circumstances of each case. What is care in one case may be negligence in another, where the danger is greater and more care is required. The degree of care having no legal standard, but being measured by the facts that arise, it is reasonable such care must be required which it is shown is ordinarily sufficient under similar circumstances to avoid the danger and secure the safety needed. Ordinary care is, therefore, the only rule which can be stated by a court. But as the degree of care is measured in every case by its circumstances, that which is ordinary care in a case of extraordinary danger would be extraordinary care in a case of ordinary danger, and that which would be ordinary care in a case of ordinary danger would be less than ordinary care in a case of great danger. With these views we cannot controvert the proposition enunciated by the plaintiff in error, that 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. But did the judge lay down a different rule in this case ? We think not. He stated ordinary care to be the legal requirement; but it was that ordinary care which belonged to the circumstances of this case, not that which was sufficient in another of less risk. In- his answer to the plaintiff’s 2d point he said, if the defendants used ordinary care, in view of the circumstances, it is all that is required. It was these circumstances which constituted the case before the jury. His charge therefore was, that which is ordinary care in such circumstances of extraordinary danger if the case be such, is the care required. He was not stating a comparison of the degrees of care between circumstances of different degrees of danger, but announcing the rule for the case before the jury, to wit, that the care ordinarily sufficient to avoid the danger in like circumstances is required.

Care according to the circumstances being the rule, we must not overlook what the judge said upon the particular subject to which this care related. In his answer to the 1st point he said, if the defendant 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 skill or care in respect to the spark-catcher used by them — now clearly this was an "application of the rule to the very case before the jury, and not to one of less danger in which the care required would be less. The bridge was burnt by sparks from the passing locomotives, and the question was whether the defendants had used the proper care and skill in providing spark-catchers for the stacks of their engines. The rule of ordinary care given by the judge was certainly up to the circumstances of the case and not below.

The next complaint is made of the instruction that general use would justify persons in selecting such a spark-catcher of ordinary usefulness. On this point the judge also said, “Now this is a question of ordinary care, if these stacks are adopted on these great lines (referring to the leading railroads of this state), would it be negligence in others to go by them; would it not be safe to follow in their footsteps ; co'uld you attribute negligence if they did what is done in a large number of cases ?” The fault which it is thought attaches to this instruction is in giving the practice of others as a guide instead of that which is proper and efficient to the purpose. But that was not the judge’s meaning. He had already stated that the spark-catchers must be good and safe, and such as are approved by experience. When he spoke of the stacks in the ordinary use of the leading railroad companies, he referred to their practice, not as a rule of decision, but as a matter of evidence, assisting the jury to judge what sort is ordinarily safe. As evidence of the quality of a stack, certainly the practice and common use of many others in the same business, whose interests are deeply involved in the safety of the stack, are not to be rejected. It is not a fair or a correct interpretation of the instruction to separate the practice used as the evidence of the qualities of the stack from the absolute qualities stated, to wit, its. goodness and safety as approved by experienced persons. It is to those following the same' employment, whose business it is to know and whose interest it is to use the best, we must generally go to find out that which is the best. It is not everything which looks' well in theory that works well in practice. In mechanical contrivances especially is it true that that which is approved by experience as the best, is commonly found to be so. The language of Chief Justice Erie, in Vicemantle v. London and N. W. Railway, 10 C. B. 95 (1861), is quite to the purpose, that “ if the construction was that which was best adapted for those purposes, in known practical use at the time the alleged cause of action arose, the duty of the company was performed.” Nor should I look to entire uniformity in practice in a matter so difficult of accomplishment as this. To secure a sufficient draught to produce combustion, and yet arrest the sparks which proceed from it, is to reconcile counteracting forces. I know no better proof of so difficult a problem than its practical accomplishment as far as it has been. When something certainly better is invented, and approved by the only true test of mechanical contrivances, practical experiment continued long enough to test its real utility, then railroad companies will be bound to adopt it.

The second question is the degree of care to be used by the defendants in passing adjacent structures. Schenk’s station is between three and four hundred yards distant from the railroad bridge over the Neshaminy creek, and the railroad bridge was distant from plaintiff’s bridge one hundred and fifty feet at the Bristol end and three hundred feet at the Philadelphia end. It is necessary after stopping at Schenk’s station to let on steam to start the train and carry it beyond the bridge. The plaintiffs’ position is that their bridge should not have been passed under steam, and that the station should not have been placed so near. But this is inconsistent with the clearly-granted rights of this company to locate the route and fix the stations to suit their and the public convenience. In the absence of proof of a special motive to do injury, we must presume the location was made for proper ends and not to do mischief. To hold therefore that it is improper to stop at this station, and that steam must be shut off' in passing over the Neshaminy, is to abridge the proper and ordinary use of the road. The injury in this case did not arise from any special act of negligence, but from the customary and lawful use of the road. The cases referred to as authorities on this point are instances of departures from the customary use of the track. That use will not justify stopping to blow off steam through the mud-valves at a common crossing, where many horses pass, and are frightened by the noise ; or stopping in a high wind opposite a new house in the process of building, where the burning cinders and sparks are carried through the open doors by the •wind. In these cases the engineer might have found other and safer places to stop, and his act was not an ordinary use of the track. Negligence has been defined to be the absence of care according to the circumstances ; hut it certainly never has been held that steam must be shut off in passing even in close proximity to dwellings, though many lines of railroad run within a few feet of valuable houses, mills and manufactories, and indeed through towns and cities. I know no greater protection to which a bridge is entitled than a dwelling filled with inmates.

Finding no error in the charge, the judgment is affirmed.