Thomas v. Central Railroad

Opinion by

Mr. Justice Mitchell,

It is admitted"that the defendant’s employee, the flagman at the place of the accident, gave a signal to stop, and this being acted on by the engineer of the coal train produced the break up of the train and the piling up of the cars on the adjacent track. It is argued for appellant that the parting of the coal train is not proved, but only a matter of inference. There was, however, evidence for the jury that the train had parted. The conductor of the coal train testified that the cause of the cars piling up was “ the tail end of the train running into us ... . the train was parted.” But this was not a controlling circumstance. The signal given was to stop, and the jury, under explicit instructions from the judge, guarding most carefully the rights of defendant, have found that it was given to the front of the train, that is, to the engineer. Whether the flagman should have given the signal for a parted train, or had no occasion to” give any signal at all, is not important. The signal he did give was to stop the train; no explanation was made why he gave it, nothing appears in the evidence to justify it; the engineer obeyed it, the jury have found that in so doing he was following his duty in the usual course of the business; and as a consequence the collision occurred.

It is further argued that, even admitting that the signal by the flagman was negligently given, it was not the proximate cause of the accident. This, however, was for the jury. As already said there was evidence that the train had parted, and also that if the front portion of a parted train is suddenly stopped the cars are likely to pile up at the point of collision, where the moving rear end strikes the arrested front. And even without that, the sudden stoppage of a long train of empty cars is manifestly attended with somewhat similar risks. Whether the' train had parted or not, if the sudden stoppage caused the piling up of the cars, the question of the cause was for the jury. The test of proximate cause established by Penna. R. Co. v. Hope, 80 Pa. 373, is whether the facts constitute a continuous succession of events so linked together that they become a natural whole, or whether the chain of events is so broken thg,t they become independent, and the final result cannot be said td be the natural and probable consequence of the primary cause, the neligence of defendants. And in Hoag v. R. R. Co., 85 Pa. 293, the same test was expressed in the briefer form that the injury must be such a natural and probable consequence of the negligence that it might and ought to have been foreseen as likely to follow the act. Whether we take one form or the other, it is clear that the question of proximate or remote was for the jury: Haverly v. R. R. Co., 135 Pa. 50; Potter v. Gas Co., 183 Pa. 575.

It is further argued that the negligence of the Reading Railroad Company in making up this train of empty cars, if not the proximate, was at least a concurrent cause of the accident, and the court erred in excluding evidence of a settlement and release by the plaintiff of the joint tort feasor. But there was no evidence that the Reading Company was negligent. It is true that the testimony shows a long train of fifty-four empty coal cars, of different sizes and patterns, some of a type not now used, and it is a matter perhaps of fair inference that the danger of the train parting was greater than at the present time when all or most of the cars are equipped with automatic couplers of a standard height. But there was no evidence that the train was not made up in the manner usual at that time, and the testimony of the engineer tends to show that parting of long trains was one of the ordinary risks of the business against which he was constantly required to guard. The evidence of release of tbe Reading Company was therefore irrelevant.

Lastly, it is urged by appellant that the negligence relied upon for recovery, i. e., the giving of a wrong signal, is not the negligence declared on, which is averred to be “in causing and permitting” an obstruction to be and remain upon the tracks; in failing to notify the decedent in time; and in not keeping the track in a safe and passable condition. It is conceded that, after the piling up of the coal cars and their fall on the adjoining track, no diligence could have notified the,decedent’s train in time to prevent the accident, and if the case depended on negligence in permitting an obstruction, getting there without fault of defendant, to remain until the collision, the plaintiff’s case would fail. But the declaration is upon negligence in “ causing ” the obstruction to be upon the track, as well as in allowing it to remain there, and whether the negligence proved, in giving a wrong signal, “ caused ” the obstruction was a question of proximate cause for the jury as already discussed. There was no variance which can be held substantial after the verdict.

Judgment affirmed.