Boatwright v. Chester & Media Electric Railway Co.

Opinion by Willard, J., A road known as the Providence Road runs north and south through the borough of Media; it is from thirty-five to forty feet wide. The appellant’s track over which its cars run, is located on the eastern side of the road. Its main route is between Chester and Media. About three hundred feet north of a steam railway track there is a switch or turnout leading from the Providence Road into the South Media road, and north of the point where the track begins to diverge, and one hundred and sixty feet distant is a blacksmith^ shop, fronting on the western side of the Providence Road. This shop extends back to the South Media road. Where the trolley car track crosses the steam railroad there is a bridge. Between eight and nine o’clock on the evening of August 14, 1894, an excursion train of three cars in charge of a motorman and two conductors was moving northward over the Providence Road and turned into the switch connecting with the South Media road. [282] There was an excursion party of two hundred and twenty-five (225) persons in the cars. There was evidence that the cars were running fast and that the motorman was not looking up the Providence Road. There was also evidence that the cars were moving at their usual rate of speed, and that the motorman before and at the time of the accident had his eyes upon the track in front of him. There was also evidence that the passengers on the cars from the time they crossed the bridge to the place of the accident were blowing horns, hooting, screeching, screaming, singing, waving hats and flags. Tins evidence was denied by the motorman and one of the conductors, and by several passengers on the cars at the time. On the evening in question the appellee was, in company with Miss Lizzie Brandt, riding with her at her invitation and was moving along the eastern side of the Providence Road going south in a buggy drawn by a horse perfectly manageable on all ordinary occasions, accustomed to and in no way afraid of trolley cars. The evidence also discloses that Miss Brandt was accustomed to drive this horse and buggy both day and night, and for many months prior to this time had experienced no trouble in so doing. As she came to the blacksmith shop she heard the noise of the approaching excursion and stopped her horse at that point, waiting for the cars to pass. The allegation of the appellee is that the horse took fright at the noise of the approaching cars, became entirely unmanageable and darted in the direction of the approaching, car, running alongside of it until between the rear of the blacksmith shop and a telegraph pole the buggy collided with the car, was upset and the appellee seriously injured thereby. The learned trial judge instructed the jury that there was not sufficient evidence of negligence on the part of the appellant by reason of the speed of the train or the conduct of the motorman in not looking in the right direction to sustain a verdict. On the question of the conduct of the excursionists the jury were instructed as follows, “ I say to you, as a matter of law, that if the company or its employees (for the company is liable for the conduct of its employees), did permit the passengers upon their cars to indulge in riotous conduct, to wave flags, to scream, to sing, to hallo and to blow horns, to such an extent as would frighten an ordinary well broken horse, then the company's liable; and that will be the simple question for you to [283] decide.” There was a verdict for the plaintiff in the sum of 11,000. The only error assigned is the refusal of the court below to give binding instructions to render a verdict for the defendant. The precise question raised by this record has not-been passed upon by our Supreme Court. As to the rights of the respective parties there is no question.. The appellee had a right to drive with her companion upon the road in question and she assumed no greater risk than any other person riding in a buggy drawn by a well-broken and trusty horse accustomed to trolley cars. She-had a perfect right to be upon this road and to drive upon it in an orderly manner. The appellant had an equal right to occupy the road with their cars and other, appliances necessary to carry out the end and purpose of their incorporation. They had the right to reasonably speed their cars in order to make such schedule time as public necessity and convenience demanded, and to make such noise and exhibit such lights as result from the ordinary running of electric motors and cars upon the public streets; and if, as a consequence thereof, horses are frightened and run away there can be no recovery for any damages sustained by reason thereof: Hazel v. Pass. Railway Co., 132 Pa. 96; Yingst v. Lebanon Street Railway Co., 167 Pa. 438. The horse was frightened on account of unusual noises made by the passengers on the trolley cars. The injury was the result of the running away of the horse and the collision of the vehicle drawn by it with one of the cars. The proximate cause was the unusual noise of the passengers that frightened the horse. For this conduct of the passengers the jury was instructed that the appellant company was liable on the ground that the two conductors did not stop the noises of an excursion party of two hundred and twenty-five people, therefore the company was liable for the injury. If the company deliberately loaded its cars with excursionists equipped with horns and flags, knowing they intended to wave flags and blow horns along the route, and thereby frighten horses lawfully upon the highway, for such conduct it might be held liable. Or if it knowingly permitted such demonstrations from time to time as a part of its business upon the road so as to become a nuisance and constant menace to persons driving vehi [284] cles upon the highway, they undoubtedly would be liable for the result of such nuisance and menace. But there are no such circumstances in this case. The excursion party was taken upon the cars and each member of the party was a passenger entitled under his contract of carriage to be conveyed safely to his place of destination. There was no evidence that the company, its conductors or employees anticipated any unusual noise on the part of the passengers. Supplied with a motorman and two conductors the cars were running upon usual schedule time under proper 'employees to manage the cars and attend to the necessities of the passengers in them under all ordinary circumstances. The company was under no obligation to provide a police force in anticipation of riots. The evidence shows that when the cars were at the bridge, the passengers became nois3r and the horse was suddenly frightened by the noise, became unmanageable and ran awa3f. To say that under the facts of this case the failure or inability of the conductors or motorman to stop the noise while the cars were going from the bridge to the turnout was such proximate cause of the injury as to render the appellant liable, is carrying the doctrine of proximate cause beyond its legitimate limit. Under the facts in this case the persons who caused the noise that frightened the horse are alone responsible, and their neglect and misconduct under the circumstances cannot be imputed to the appellant. The appellant is charged as a wrongdoer in causing the appellee bodily injury, and in order to recover, the injur}1- complained of must have been inflicted or caused by the negligence of the appellant, or its act or negligence or the act or negligence of its employees must have been the proximate cause of the injury. In Pittsburg Southern Railway Co. v. Taydor, 104 Pa. 306, it was said by Mr. Justice Paxson “ In determining what is proximate cause the true rule is, that the injury must be the natural and probable consequence of the negligence, such a consequence as under the surrounding circumstances of the case might and ought to have been foreseen by the wrongdoer as likely to flow from his act. The soundness of this rule has not been questioned, and I know of no case to which it can be applied with greater propriety than to accidents resulting from the fright of horses.” Applying this rule, to the facts of this [285] case how can it be said that any act of the appellant or its employees as presented in the testimony, was the proximate cause of the injury to the appellee ? Pittsburg, Fort Wayne and Chicago Railroad Company v. Hinds, 53 Pa. 512, cited by the appellee, was an action against a common carrier of passengers, for an injury to a passenger by one of a mob of drunken men who suddenly invaded a car. While a recovery in that case was not sustained, Woodward, C. J., there said: “ The only ground on which the carrier can be charged is a violation of the contract of carriage made with the injured party.” It was also said in the same case, “there is no such privity between tbe company and the disorderly passenger as to make the company liable on the principle of respondeat superior.” This case considered upon its facts, is not one in which the appellant should be held liable for the acts of those not in its employ. The sudden outburst of passengers in a noisy demonstration was not an occurrence that the appellant was bound to anticipate or provide against. The cases cited by the appellee where railroad companies have been held liable for frightening horses by the unnecessary blowing of steam whistles by their engineers and firemen on bridges or highways are not in point; there the injury was the unnecessary and wanton act of an employee while engaged in his master’s business, while here the act was that of disorderly passengers between whom and the appellant the principle of respondeat superior has no application. While it would be difficult to prescribe a rule applicable to all cases, it would be most unreasonable to hold the appellant liable for the injury in this case. A rule that would hold this appellant liable for the result of the sudden noise on this occasion, which in the exercise of sound judgment and discretion it was not obliged to anticipate or provide against, we are not prepared to establish or sanction. The question of the position and action of the motorman in the management of his car and the speed of the car having been withdrawn from the jury, the first point of the plaintiff should have been affirmed. The specification of error is sustained and the judgment reversed.