North Pennsylvania Railroad v. Mahoney

The opinion of the court was delivered, by Sharswood, J. This judgment is affirmed on the grounds stated in the opinion of the District Court on the motion for a new trial. But as some views have been urged here which were not presented below, it is proper that they should not be passed without notice. It has been strenuously contended that Mrs. Farr, whose negligence, resulting no doubt from want of presence of mind, contributed to the injury, was not a trespasser or tort-feasor. The evidence showed that the child was not under her care, but that with the best intentions, and with the design to remove it out of the reach of danger, she attempted to cross the track of the railroad a few yards in front of the moving car, with the child in her arms, tripped and fell, which threw it under the wheel and caused the loss of its arm, and the death of the unfortunate woman herself. It is supposed that as her intention was not to injure but to benefit the child, no action would lie against her. The law is clearly not so. An action can be maintained, without regard to the motive, though no jury in such a case would give more than nominal damages. Nothing but necessity, or inevitable accident, excuses a trespass. In a case where the defendant was uncocking a gun, and the plaintiff standing by to see it, it went off and wounded him, it was held that he might maintain trespass: Underwood v. Hewson, 1 Stra. 596. No man shall be excused of a trespass except it may be judged utterly without his fault; as if a man by force take my hand and strike another, or if the defendant should plead that the plaintiff ran across [192] his piece when it was in the act of discharging, or set forth the case with the circumstances so as to make it appear that it had been inevitable, and that he had been guilty of no negligence to give occasion to the hurt: Weaver v. Ward, Hob. 134. If one of two persons fighting, unintentionally strikes a third, the absence of intention can only be urged in mitigation: James v. Campbell, 5 C. & P. 372. If one does an injury by unavoidable accident, an action does not lie; it is otherwise if any blame is imputable to him, though he be innocent of an intention to injure: Wake-man v. Robinson, 1 Bing. 213. The very foundation of the defence relied on by the plaintiff's in error was, that there was blame imputable to Mrs. Earr; that she was guilty of negligence which had contributed to produce the injury. It has been urged, however, that if Mrs. Earr was a tort-feasor, then the only remedy of the defendant in error was against her, on.the principle of Lockhart v. Lichtenthaler, 10 Wright 151. It was decided in that case, that where a passenger is injured by a collision resulting from the concurrent negligence of those in charge of the train, in which he was, and of another party, the carrier alone is liable. If the defendant in error had been in custody of a nurse or other person, to whose care she had been intrusted by her parents or guardian, there would be great force in this position. But there was no evidence of this. The mere relationship was not enough; nor did it appear that the parents had been accustomed to intrust the child to the care of the aunt. This, then, is like the case of a person who has been placed against his own will in a railroad car, and receives an injury by the concurrent negligence of the carrier and of another party. The doctrine of Lockhart v. Lichtenthaler does not apply, as the reasoning of the present Chief Justice in the opinion, and the authorities cited by him, clearly show. It was suggested also on the argument here, with great ingenuity and commendable zeal, that though there may have been negligence in the plaintiffs in a general sense, it did not directly contribute to the injury, the proximate cause of which was the ' heedless conduct of the aunt. But if this was a case to which the maxim causa próxima non remota spectatur applied, it is very evident that the proximate cause was the motion of the train, and the negligence of the aunt the remote cause. But in truth the negligence of the plaintiffs was not mere negligence in a general sense, but contributed directly to produce the injury. That there was evidence of such negligence, not a mere scintilla, but sufficient to go to the jury, cannot reasonably be questioned. The train was backing in a public street of a closely built part of the city, at all times a dangerous operation, and requiring the exercise of great caution; the servants of the plaintiff were not on the lookout, but were in such a position .that they could not see any con [193] siderable distance in the direction of the motion; and there was contradictory evidence as to the rate of speed. The court below was right in submitting the cause to the jury, and the other errors assigned not having been sustained, the judgment must be affirmed. Judgment affirmed.