Dougherty v. Philadelphia & Reading Railroad

Opinion by Mr. Justice Wieeiams, The accident from which the plaintiff in this case suffered was, to say the least, an extraordinary one. A car loaded with blasting powder, while being moved over the defendant’s railroad as part of one of its freight trains, was exploded. The plaintiff’s house which stood sixty feet below the track and ata distance of four hundred feet from it was affected by the explosion; his furniture was damaged, and his wife quite seriously hurt. This action was brought to recover for the loss sustained by him. The defense alleged that the accident was unavoidable ; and, if unsuccessful in this position, that the injury complained of was not a natural or probable result of the accident which it was the duty of the company to foresee and provide against. Both questions were upon the evidence in this case questions of fact for the jury, and the sixth assignment of error which asked a binding instruction in favor of the defendant [463] cannot therefore be sustained. Whether the explosion was an unavoidable accident or was due to the defendant’s negligence was not a question of law, and the learned judge was right in submitting it, upon the evidence, to the decision of the jury. Nor do wo think that just complaint can be made of the manner in which the question was presented to them. The serious questions for the appellee are presented by the first and second assignments of error. On the trial the plaintiff undertook to show affirmatively the negligence of the defendant’s employees by showing that in placing the ear containing the powder in the train they disregarded the rules the company had provided for their guidance. It appeared that one set of rules had been in force up to some time in May, 1888. Another set had been adopted by the officers which had been intended to take effect on the 1st day of May, 1888, but which, for some reason had not been promulgated until after the 20th. The accident happened on the evening of the 5th of May, 1888. The plaintiff offered the latter set of rules regulating the making up of trains, the signals to be used, and the precautions to be taken in case of the parting of a train while on its journey, on the supposition that they were in actual use on the 5th of May. It appeared however that they were not distributed or placed in the hands of employees until near the close of the month. For this reason the learned judge rightly rejected them. They were again offered without any accompanying testimony as to the time of their delivery, and were admitted notwithstanding the testimony that had been previously given upon this subject tending to show that the actual delivery of these rules to the employees did not take place till about the 26th of the month. The reason given for this action by the learned judge was that the book of rules bore on its first page a statement that the rules contained in it were to take effect May 1, 1888, and that it was to supersede the book of rules dated January 1, 1876. This he held to be evidence prima facie that the rules offered were in full force on the 1st day of May, 1888. But the testimony which had been given to the court in support of the offer of the same set of rules was in the case. Upon its practically conclusive showing that these rules were not in force at the time of the accident, the learned judge had rejected them and sealed a bill of exceptions to his ruling [464] at the request of the plaintiff. Unless testimony fairly overcoming the effect of that on which his rejection of the book of rules had been based was presented for his consideration, or he had become convinced that his rejection of the book was an error, his admission of it was inconsistent with his former ruling, and it was in the face of the testimony already on the record. It was erroneous and requires us to sustain the first assignment of error. For the same reason the second assignment must be sustained. The defendant company offered the first book of rules, alleging that the rules contained in it were in force on the 5th day of May, 1888, and that this appeared in the testimony of the plaintiff. The defendant also called witness to show that the book of 1888 was not issued to the employees until after the accident, but that the book of 1876 was that which was in force at that time and by which the employees were governed. In the course of the examination of one or more of these witnesses, it appeared that they had on receiving the new book of rules been required to sign a receipt therefor in the office of the company at Tamaqua. The learned judge rejected the offer, holding that because the written receipts would show the exact date on which each employee received his copy of the new rules the cqmpany was bound to produce the receipts, and not having done so could not show the fact that the new rules were not in force on the 5th of May, 1888, in any other manner. He characterized the receipts of the employees as “the best evidence of the time when these rules went into effect,” although the receipts only stated when the copy came into the hands of the employee who signed it. When they should take effect was for the company to determine and to announce by some general order or circular letter, such as one of the witnesses testified accompanied each book of rules. But the fact that the new rules were not in force and had not been put in the hands of the employees until after the accident happened was susceptible of proof by the testimony of any one who knew it. On the part of the plaintiff the only evidence for the jury upon this subject was the recital on the first page of the new book of rules that they were framed to take.effect on the 1st day of May, 1888. To this prima facie showing it was perfectly competent to reply that the book was not in fact put in the hands of the [465] employees for use until a later period, and that on the 5fch day of May, when the accident happened, it was not in the hands of the train men who had charge of the train in which the car load of powder was. The exact date when the new rules went into operation was not important. The question was, were they in operation on the 5th day of May? A violation of the rules in force at the time would be evidence upon the question of negligence on the part of the employees which the court could not withhold from the jury. It might not be conclusive, but upon the subject of its competency the learned trial judge was right. It became important therefore to inquire what rules were in force when the train to which the accident happened was made up ? And were the rules in force at the time substantially followed by the persons in charge of the train. If so, negligence would not ordinarily be imputable to them. The result of the rulings brought to our attention by the first and second assignments of error was that the jury had necessarily to determine this question of the negligence of the train men in the management of their train by the application of a set of rules which were not in force at the time, and the requirements of which they were not bound to know or obey. To what extent this mistake controlled the verdict it is not possible now to determine, but that it may have influenced it, is a sufficient reason for reversing the judgment. The other assignments of error are overruled. The judgment is reversed and a venire facias de novo awarded.