Mulherrin v. Delaware, Lackawanna & Western Railroad , 1876 Pa. LEXIS 161 ( 1876 )

Mr. Justice Paxson

delivered the opinion of the court,

This was an action of trespass on the ease for injuries resulting from alleged negligence on the part of the employees of the railroad company in moving their cars. The undisputed facts of the case are substantially as follows: The injury was caused by the train of the Delaware, Lackawanna and Western Railroad Company. The track was owned by the Lackawanna and Bloomsburg Railroad Company. The former company had the right of track-age over the road by virtue of an agreement between the two companies.; and the train of the Delaware, Lackawanna and Western Railroad Company was lawfully upon the track. There are two tracks at the point where the injury occurred. Between the inside rails of said tracks there is a space of seven feet in width, leaving a clear space between passing trains of about three and a half feet in width, while outside of the southern track there is room to walk without danger. Patrick Mulherrin, the plaintiff, was in the employ of the Lackawanna and Bloomsburg Company; as a brakeman. On the morning of the 29th of June 1871, he was on his train approaching Jkramton from á northerly direction; when near Jackson street he goFoTTTrom his train to turn the switch, and having performed this duty he went to the watchman’s house near the switch, where he remained some time in conversation with the watchman, then lighted his pipe and started towards Scranton to join his train, walking on the northern track. When he stepped on said track a train was passing him on the southern track. Instead of waiting until the train had passed, and then crossing over both tracks to the outside of the southern track, where there was clear space to have walked with safety, he continued walking on the northern track until he was overtaken by the defendants’ train moving in the same direction, which struck and badly injured him. Upon this state of facts he seeks to recover from the- defendants damages for the injuries sustained.

It was held in the Railroad v. Norton, 12 Harris 465, that where a person places himself on the track of a railroad, he can claim no damages except for wanton injury, and not for injury sustained in the pursuit of the company’s lawful business in the ordinary manner, even though the negligence of the company’s agent contributed to the result. It was said by Mr. Justice Woodward, in delivering the opinion of the court, that in order to make railroad companies to carry safely, “ the law insists upon a clear track.” This doctrine cannot be too emphatically asserted or rigidly enforced. We hold these corporations to a strict line of responsibility whenever passengers are injured by accidents to their trains. It follows that we should be equally emphatic as to their control of their tracks. Except at crossings, where the public have a right of way, a man who steps his foot upon a railroad track does so at his peril. The company have not only a right of way, but such right is exclusive at all times and for all purposes. This is necessary, not only for the proper protection of the company’s rights, but also for the safety of the travelling public. It is not right that the lives of hundreds of persons should be placed in peril for the convenience of a single foolhardy man, who desires to walk upon the track. In England it is a penal offence for a man to be found unlawfully upon the track of a railroad. It would add materially to the public safety were there a similar law here.

These remarks do not, of course, apply to employees of railroad companies whose duties require them at certain times and for certain purposes to be upon the track. They go there in the course of their employment, and under the well-settled rules of law they take the risk. In cases of personal injury they have no redress against the company employing them, and by the act of whose servants it is -occasioned. In this case the plaintiff was not. in the employ of the defendants, but was a brakeman of the Lackawanna and Bloomsburg Company. The evidence clearly shows that he was not necessarily on the track when he was struck by the train. He got off his train to perform a duty, to wit, the adjustment of a switch. That duty had been performed when he sought to rejoin his train. If, in doing this, he saw fit to walk upon the track, he did so at his own risk. His obligation to join his train involved neither a duty nor a necessity to walk where he was struck. It was clearly proved that there was ample opportunity of reaching his train without incurring such peril. It is .true some of,his witnesses say he could not have avoided the track without taking a circuitous route. But a careful examination of the testimony showed that this was based upon the fact that when he started there was a train upon the southern track. It appears from the cross-examination of the plaintiff, that if he had waited for a few moments, until the southern bound train had passed, he could have crossed over and walked along the outside of the southern track to his train in perfect safety. It was a mere matter of passing from one given point of the road to another. Whilst so engaged he had no higher protection than a stranger walking over the same ground. It was correctly said by the learned judge in another portion of his charge: “ If any other person than a brakeman had gone upon the track, as the plaintiff admits he did, unquestionably it would have been negligence per se ; and if such a person had been run down it would have been the fruit of his own folly, and he could not recover.” Yet in what better position was the plaintiff than a mere stranger ? He was not injured while engaged about the switch, or in any other duty which required his presence on the track. Passing from one point to another point on the road was not such a duty, unless there had been no other place for him to walk, which was not the case. We think, therefore, that as applied to the facts of this case, the defendant’s fifth point ought to have been affirmed, and that it was error to decline it.

There was also error in not. affirming the defendant’s sixth point. The case comes clearly within the terms of the first section of the Act of 4th April 1868, Pamph. L. 58, which provides, “ that when any person shall sustain personal injury or loss of life, while lawfully engaged or employed on or about the roads, works, depots or premises of a railroad company, or in or about any train or car thereon, of which company such person is not an .employee, the right of action and recovery in all such cases against the company shall be such only as could exist if such person were an employee.” This act was passed shortly after the decision in the Catawissa Railroad Co. v. Armstrong, 13 Wright 186, was published, in which it was held, that when a person in the employ of one railroad company was injured by the cars of another company who had the right to run their trains over the other’s road, the person so injured was not precluded from recovery on the ground that he was in the same general employ with the servants of the company whose cars caused such injury. It is highly probable the Act of 1868 was passed in view of this decision. Be that as it may, it is our duty to give it effect according to its plain meaning. The plaintiff’s case comes precisely within its terms. He was not an employee of the defendants, but he was employed on or about their road. The fact that the defendants were only entitled to track rights to the road is not material. This is not a question of the extent of their title. It was the road of the defendants for the purpose of moving their trains, which is sufficient to bring the case within the Act of 1868. This is decisive of the plaintiff’s case and renders it unnecessary to discuss the remaining assignments of error.

Judgment reversed.