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Vol. II.]

GILMAR v. LACONIA.

(No. 8.

to the point, that an action may be maintained against a town in such a case.”

And further on he says: “So if a town or city maintain an erection or structure which is a private nuisance, and causes a special damage, or in the performance of an authorized act, invade any right of property, the corporation has been held liable to a civil action. Thayer v. Boston, 19 Pick. 511; Akron v. McComb, 18 Ohio, 229; Rhodes v. Cleveland, 10 Ohio, 159. If the defendants in the present case had laid and maintained the foundations of their town-house across a stream, and caused the water to flow back on the plaintiff's land, according to these authorities they would have been liable to an action for the damage.”

I do not understand that the learned chief justice intimates any disapprobation of this doctrine.

In the case of Groton v. Haines, 36 N. H. 388, the same court, the same learned judge delivering the opinion, held that a town has no right, in the execution of its duty in building and maintaining a highway, unnecessarily to obstruct a watercourse, to the damage of riparian owners. He says in the course of his opinion: “ The defendant, then, had a right to a suitable culvert to convey the water in this watercourse across the road, and it was the duty of the town, or the officers of the town, to provide and maintain it for him; and when the culvert was filled up and stopped by neglect of that duty, it was a nuisance, which caused the plaintiff a private and individual damage, and, on general principles, he had a right to remove it himself, in a proper manner, doing no unnecessary damage. No complaint is made that he proceeded without due notice. He called on the surveyor to do his duty, which he neglected."

The cause of action, therefore, which is the subject of complaint in the plaintiff's writ, is, according to this authority, a nuisance, which the plaintiff might lawfully abate, and for which, according to the authorities cited by Perley, C. J., in Eastman v. Meredith, and apparently with approbation, an action at common law may be maintained.

The action, however, would technically be case for erecting and maintaining a nuisance, and not an action for negligence in suffering a highway to be defective.

Considered in this point of view, the judgment in Ball v. Winchester, was perhaps technically correct, the action not being case for maintaining a nuisance, but case for negligently permitting the highway to be defective and out of repair, although the broad doctrine laid down in that case seems hardly consistent with the case of Groton v. Haines. I am therefore of opinion, that, both on sound principle and the doctrine of Eastman v. Meredith, and Groton v. Haines, and cases cited, this action may be maintained, although it may be technically necessary for the plaintiff to amend his declaration. SMITH, J. concurred.

Demurrer overruled.

VOL. II.)

PennsyLVANIA RAILROAD Co. v. WEBER.

(No. 8.

SUPREME COURT OF PENNSYLVANIA.

(To appear in 26 P. F. Smith.)

RAILROAD. — NEGLIGENCE. — DUTY OF PERSON IN APPROACHING CROSS

ING. — PRESUMPTIONS IN RESPECT OF PROPER CARE.

PENNSYLVANIA RAILROAD CO. v. WEBER.

1. Weber, driving a horse and light wagon over a railroad on the crossing of a country

road, was killed by a locomotive moving on the railroad. There was no express testimony as to whether he stopped and looked and listened before going on the railroad.

Held, that the question of his negligence was for the jury. 2. It is the duty of a traveller to stop and look and listen before crossing a railroad ; not

so doing is negligence in itself. 3. The presumption, in the absence of other evidence, is, that the traveller stops and

looks and listens before crossing a railroad. 4. In an action against a railroad company for injuring such traveller, the burden is on

the defendants to disprove care, unless the plaintiff's own evidence shows contribu

tory negligence. 5. Although from the uncontradicted evidence in this case it might have been inferred

that, if the traveller had stopped and looked and listened, he would have seen the approaching train, it was for the jury to determine the fact.

This was an action on the case, brought to January term, 1870, of the court below, by Sarah Ann Weber, widow, and Margaret Weber and others, children of George H. Weber, deceased, against the Pennsylvania Railroad Company. The cause of action, as set out in the declaration, was that the defendants, by carelessness and negligence in running their cars on their road, caused the death of Weber, on the 28th of August, 1869, at a public crossing by a county road.

The cause had been tried before, and a verdict for $2,500 rendered for the plaintiffs. On a writ of error, the judgment on this verdict was reversed by the supreme court (22 P. F. Smith, 27).

The deceased was a baker, living at Duncannon, in Perry County, and carried bread, cakes, &c., for sale, in a one-horse wagon, to Marysville, about six miles east of Duncannon. He went three times a week, and had been doing so for about eighteen months. He travelled on the county road; which is alongside the railroad, and crosses it several times between the two towns. On the 28th of August, 1868, he was crossing the railroad from the south on the public road, in a " spring wagon ”with one horse, the curtains being rolled up, when his wagon was struck by the locomotive of the “ Harrisburg Accommodation ” train, belonging to the plaintiffs, going east; his horse was killed immediately, and himself so badly hurt that he died in a very short time.

The crossing is the third east from Cove station, about a mile and a half from that station, and is about 110 feet from the end of a stone wall built on the south side of the railroad ; the wall is 1,117 feet in length, extending westwardly. Until within 400 feet of the crossing, the county road is below the grade of the railroad; it then ascends a hill, and afterwards descends, at a grade of six degrees, to a level twenty-five feet from the railroad track, and passes on this level over to the northern side of the

I track, grade of sixailroad ; iteet of the

Vol. II.]
PENNSYLVANIA RAILROAD Co. v. WEBER.

(No. 8. railroad. The whistling-post on the railroad was 1,230 feet west from the crossing where Weber's wagon was struck. The stone wall on the railroad, and the increased noise from the rolling of cars passing between the walls have the effect of drowning the sound of the whistle.

The principal question in the case was as to the contributory negligenee of the deceased. . The case was tried the second time, May 6, 1873, before Junkin, P. J.

M. H. Foos, for the plaintiffs, testified that he was a passenger on the train : his attention was arrested, after leaving Cove Station, by a sharp whistle and a sudden stoppage of the train, about 200 yards east of the crossing; he looked out and saw part of the wagon hanging on the engine ; he got out and saw the horse lying on the north side of the road, and Weber on the pilot under the head-light; he was not then dead, but was dead when the train reached Marysville, about a mile and a half from the crossing. Witness remembered no other whistling just before the accident occurred.

A. Kauffman, who was a laborer for the company, testified that he was working on the road about a quarter of a mile east of the crossing, around a curve, so that he could not see the crossing ; he heard one blast of the whistle about the time of the accident; but had not heard any more. He went up to the crossing and found Weber lying on the pilot, dying.

A. Ensminger, also a laborer of defendants, testified that he was working 300 or 400 yards east from the crossing ; he saw Weber passing westwardly with his horse and wagon ; " after a young man, Alfred Priesler (who was working with witness), had bought cakes from Weber, we started right away to work again. I was working with my face eastward, stooping down tamping a tie, and I heard a sharp whistle; I turned around and looked up the road, and I saw the engine strike the wagon and horse.” Witness did not hear any other whistling about that time; he was busy at work and paid no attention.

P. Deitz, who was working with Ensminger, testified that he saw Weber passing with his wagon westwardly ; witness and Priesler bought cakes from him, and they then went back to work ; Weber started on; " I heard a whistle; I looked up; says I, • There goes the baker;' this whistle was at the time the baker was going on; the train and Weber were approaching each other at the time.” Witness did not take notice of the train till he looked up; and did not hear any other whistle or warning than the one he had mentioned. “I was frightened lest the Dutch baker should get injured.”

D. Rife testified that he had assisted in making measurements at and near the crossing; a person standing on foot in the county road before coming to the crossing, and 21 feet from the south rail of the south track, could see an engine coming 601 feet from the middle of the crossing; at 27 feet the smoke-stack of the engine could be seen 214 feet.

Eli Branyan testified that he was in company with Rife when these measurements were made ; that, standing 21 feet from the track, the engine was just one minute coming to the crossing from where the smokestack was first seen ; and one half minute when standing at 27 feet from the track; the trains he saw were long freight trains.

J. B. Hackett, a surveyor, testified that, from Marysville for the distance of 2 miles, 246 rods westwardly, the county road crosses the railroad

PENNSYLVANIA RAILROAD Co. v. WEBER.

Vol. II.)

(No. 8.

five times ; from the second crossing, where Weber was killed, to the next above, is 184 rods.

The plaintiffs gave much other evidence for the purpose of showing that the whistle was not sounded or other warning given before the train approached the crossing ; also that the view of the railroad for a considerable distance was hidden by underbrush and trees growing on the banks of the railroad.

For the defendants, E. B. Taylor, who was a civil engineer in the employ of the defendants, testified that, standing in the middle of the county road, at a distance of 20 feet from the south rail of the south track, that track could be seen at a distance of 210 feet west from the crossing; the targets on the cross-switches could be seen 1,087 feet from the crossing ; at the whistling-post, 1,245 feet from the crossing, the head-light of an engine could be seen; the head-light would be about 10 feet above the rail; in a wagon, with the horse's head 2 feet from the south rail, an engine could be seen 3,911 feet from the crossing ; standing in a wagon on the summit of the county road, 117 feet back from the track at the crossing, the engine could be seen at the whistling-post, and the whistle could be distinctly heard there. The first crossing from Marysville to the crossing where Weber was killed, measuring on the railroad, is 1,286 feet; from the first crossing from Marysville westwardly the road is straight for about 4,000 feet. A whistle at Cove Station could be heard at the crossing where the accident occurred; the ringing of a good bell at Cove Station could be heard there.

S. H. Free, the engineer of the locomotive by which Weber was killed, testified that the train left Altoona on time in the morning of the day of the accident; ran its usual and schedule speed (23 7-10ths miles per hour) ; was on time at all the stations. The day was clear; the machinery was all in good order ; the track good, and everything right; the fireman rang the bell at the two upper crossings after leaving Cove Station; the bell was good ; at the whistling-post above the crossing where Weber was killed, witness blew four blasts of the whistle for that crossing ; " about half way from that to the crossing below I saw the horse coming out on the road towards the track; I blew the whistle again some four or five blasts, sharp and quick, and a very short time after that the horse and wagon stopped on the track; as soon as it stopped I pulled on the patent brake and reversed the engine; the engine was in that position until it struck the wagon.” When he first saw the horse's head it was within a few feet of the track. When the engine struck Weber, the horse stood with his hind feet just across the north rail of the south track ; Weber was sitting in the wagon nearer the front than the middle; he had hold of the lines pulling back, as if he was trying to back his horse; the front wheels of the wagon stood near the north rail of the south track; the shafts stood up alongside of the horse's neck.

H. Robinson, the fireman, testified much as the engineer; also that he rang the bell at the two upper crossings. He was sweeping the foot-board when the engineer sounded the alarm-whistle; he then looked on his side of the engine and saw the horse; “I then saw a man seated in the wagon, near the middle as near as I could tell by the appearance; the horse was stopped ; it appeared to me he was trying to back the horse off the road, Vol. II.]

PENNSYLVANIA RAILROAD Co. v. WEBER.

(No. 8.

as the shafts were up alongside the horse's neck, and the wagon had run on him ; he remained in that position until we struck him." The engine had been reversed, the brake applied, and the speed of the engine had

ponad been reverbetore he was alterice photographs &c. They can brush, and

The defendants gave in evidence photographs of the road, of the ground where the accident occurred, the vicinity, &c., &c. They gave evidence also that the sight of the road was not obstructed by underbrush, and much testimony in answer to the plaintiffs' case generally.

The plaintiffs' second point and the answer were :

Point: “ As the uncontradicted evidence in this case shows that George H. Weber did not stop before arriving on the track, the verdict must be for the defendants.”

Answer: “We cannot affirm this point, but say again that the first presumption of law is that he did stop, look, and listen. But this presumption will give way to the actual truth, that he did not do so. And we again say, that if the evidence satisfies you that had Weber stopped, looked, and listened, he would not have been injured, then he was guilty of negligence, &c.; you should find for the defendants, even should you find that the engineer gave no warning of the approach of this train.'

The court charged:

• First, then, was the death of Weber occasioned by the negligence, carelessness, and impropriety of the Pennsylvania Railroad Company? That he was killed in the manner here mentioned there can be no denial or doubt, but whether through the company's negligence or his own is the question. The company, on the day herein designated, were running their engine and cars on their own road, on the proper track of the said road, and at or about the usual time of day. They had the right, beyond all question, to use their road, with their engine and cars, their engineers, conductors and servants, to carry passengers or freight, as they should deem right, subject only to the legal principles which govern and control the exercise of such rikts. the legal principles

.“ Weber, with his horse and wagon, on the same day and time, was travelling on a common highway, used and occupied indiscriminately by every person whose business or pleasure called him along it. He too bad an unquestioned right to use this highway for his own purposes, and at such times as suited his pleasure or convenience, subject, at the same time, to the understood rights of others. The company, with their engines and cars, and the baker, with his horse and wagon, had their respective rights at this crossing, of such character that they should not molest or interfere the one with the other.

“ These reciprocal rights created corresponding duties. The railroad company, notwithstanding their right to travel along and over their own road, were bound to exercise due care and diligence in the use thereof; and Weber, although on a road whereon he had a right to travel, was also under the obligation of duty so to exercise his right as not to interfere with the rights of others. With these rights and duties respectively they met at the crossing, and the fatal accident occurred. Weber was on the track of the railroad, and the engine and train passed along, breaking up the wagon and horse and killing him. Where was the negligence which occasioned this fatal collision ? Was there any on either side? Was it

an times as suite rights of otherse and

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