Simon v. Baltimore & Ohio Railroad , 173 Pa. 517 ( 1896 )

Opinion by

Mr. Justice Williams,

The decision of this case depends on the proper construction of the second section of the act of April 12, 1851, providing for the punishment of railroad companies for obstructing the passage over any private road or crossing place by placing burden cars, engines or other obstructions on the track at the place of crossing. The act requires the company to remove any such obstruction promptly, and imposes a penalty of $30.00 for failure to' do so, “ after any agent or other person in the employment of the company shall have received at least fifteen minutes notice” of the desire of the parties interested to use the crossing.

The plaintiff alleges that he is a farmer in possession, as tenant, of a farm crossed by the defendant’s railroad; that the fields are reached by a private crossing over defendant’s tracks, and that he was prevented from crossing on the 6th day of October, 1894, because the place of crossing was obstructed by defendant’s cars, and the said cars were not removed within fifteen minutes after notice to one of the employees of the railroad company of his desire to use the crossing. Two questions naturally suggest themselves, First, on whom should the notice to remove the obstruction be served? Second, how soon after the notice is given must the obstruction be removed in order to escape the penalty imposed by the act? The words of the statute authorize a service upon “ any agent or other person in the employment of the company.” These words must receive a reasonable construction and be read in the light of the mischief aimed at, and the remedy provided. The object of the notice is to secure the removal of the obstruction complained of. It should be given therefore to an agent in the locality or to some other person in the employment of the company whose work has some connection with the operation of the railroad. A carpenter at work by the day upon a depot building or other structure, a stone mason at work upon a culvert, a plumber repairing the pipes about a water tank, or a bridge builder engaged 'in the construction of a bridge, might all be properly described as persons in the employment of the railroad company, but the nature of their employment shows that they have no connection with the movement of cars or with the condition of the track. The notice in this case was given to a person in the employment of the defendant company, engaged in cutting weeds and grass within the right of way as fenced. He made no objection to the service of the notice, but proposed that he and the plaintiff who gave it should set at work and move the cars, saying that they could do it sooner than he could go to the station and have an engine sent out for that purpose.

The plaintiff seems to have assented, and to have assisted in the removal of the cars from the crossing. What he now complains of is, not that the obstruction was not removed, nor that the work was not done as quickly as was practicable, but that it was not done within fifteen minutes after the service of the notice. This brings us to our second question. The words of the statute are that the obstruction must be removed “ After any agent or other person in the employment of the company shall have received at least fifteen minutes notice.” This is the minimum of notice. The company is entitled in any case to “ at least fifteen minutes ” after notice in which to remove the obstruction. The maximum is not fixed. It is left, as it should be, to be determined by reference to the circumstances in each particular case. The obstruction might be due to the derailment of an engine, or of a train, and it might require several hours of vigorous effort with as large a force as could be used to advantage to replace the cars upon the track or to remove the wreckage so as to make the use of the crossing possible. The statute was intended to quicken the deligence of the railroad company and protect the rights of landowners along its line by requiring prompt and energetic action on the part of the company to keep crossings free from obstruction. But it was not intended to require impossible or unreasonable things, nor to subject a company to a penalty because the removal of an obstruction within fifteen minutes after notice was physically impossible. Liability to the penalty depends on the activity and good faith of the company and its employees after the fact of the obstruction comes to their notice. They are entitled to “ at least fifteen minutes ” and as much more as the circumstances of the particular case may require, with the exercise on their part of proper energy, and the use of suitable means. To inflict a fine for not doing within fifteen minutes what it was impossible to do in a much longer time would be unjust to the railroad company. To require less than prompt and diligent and continued effort on its part to remove the obstruction and open the crossing would be unjust to the landowner. It was an error therefore in the learned judge of the court below to instruct the jury as he did in this case, that “ the only question in this case for your determination is how long the obstruction of the passage existed. If it was more than fifteen minutes, if notice had been given, then your verdict must be for the plaintiff.” This is not a correct exposition of the statute. It makes the minimum of notice required by it do duty as the maximum. It leaves wholly out -of view the nature and the magnitude of the obstruction, the diligence of the company in the effort to remove it, the length of time necessarily occupied hi that effort with all the force and all the skill that can be employed upon it, and fixes the attention of the jury solely on the position of the minute hand on the face of the clock. The fourth assignment of error is sustained and the judgment appealed from is reversed.