Patterson v. Philadelphia, Wilmington & Baltimore Railroad

*109 The Court,

charged the jury, that justice was to be administered in the ease without respect to the character or pecuniary abilities of the parties. They had heard the evidence in regard to the railroad siding on which the injury to the plaintiff had occured, by whom it was built and at whose expense, and the purpose for which that portion of it on which the accident had occurred was constructed, and that it had been used by the firm of Jackson & Sharp and the men employed in their car works in repairing or finishing cars whilst standing upon it; but whether that had been done with the knowledge and consent,or acquiescence of the defendant, the railroad company, was a question of fact to be decided by the jury upon the evidence before them in regard to the matter.

The first legal proposition applicable to the case, and to all other cases of like character is, that the plaintiff in order to entitle himself to a verdict, must show by competent evidence to the satisfaction of the jury that the injury complained of was caused by the negligence of the defendants or their authorized agents, or servants, as they are frequently termed in the law, in their employ. They act by and through their agents or servants, and are responsible for their acts, as such agents, done or performed in the course of their usual and proper employment. It is well settled in the law that railroad companies have the exclusive right to occupy, use and enjoy their railway tracks and siding, and such exclusive right is absolutely necessary to enable them properly to perform the duties of their employment as common carriers for hire incorporated by public statutes for that purpose; and any person going upon, using, or occupying a track or siding, or any part of the same, of a railroad company without the consent of the company, is held in law to be there wrongfully, and therefore, to be a trespasser, and in case of injury happening to his person or property whilst so a trespasser upon it from the movement of the engines or cars of the company over it, he is without remedy and cannot recover damages for the injury, unless it is at the same time' proved by affirm*110ative evidence that the agents or servants of the company having the direction and management of such engines or cars, could by the exercise of ordinary care and diligence on their part, have prevented or avoided it under the circumstances, or that they willfully or wantonly did it. Such a company may, however, waive such exclusive right by consent and by conceding to others the privilege of using and occupying a portion- of their track or siding for standing or repairing their cars upon it, or for any other purpose the company may see fit; and any person thus using or occupying the same with the consent of the railroad company, would be there rightfully, and, of course, not as a trespasser. And such consent may either be express or implied. Express consent is when the consent is actually proved to have been expressly granted by the party giving it; implied consent is when it is not so proved, but is to be reasonably inferred or presumed from all the attending circumstances that the party, at least, tacitly assente'd to it. If.it had been actually proved in this case that the defendants, the railroad company, had expressly consented to the use of the siding in question, or any portion of it, by Jackson & Sharp for repairing their cars upon it, or for taking to pieces the particular car on which the plaintiff was at work when he received the injury in question, there could be no room for doubt or dispute that he was there rightfully, and not wrongfully; but as there had not been such proof produced or offered in the case, it would be for the jury to determine from all the facts and circumstances disclosed in the evidence which they had heard in the case, whether or not it is reasonable to infer and presume that the defendants, at least, permitted, assented to, or acquiesced in such use by Jackson & Sharp of that part of the siding on which the car was standing upon which the plaintiff was at work at the time when he was injured. And if after carefully considering and weighing all the facts and circumstances proved, they should conclude that there was such an implied consent on the part of the defendants to such use of it, then the *111plaintiff was there rightfully, and not wrongfully, when he received the injury complained oí.

But he would further say that if they were satisfied from the evidence that the portion of the siding in front of Jackson & Sharp’s shops on which the dismantled car was standing, was the joint property of the railroad company and that firm, or was occupied and used by them jointly for their mutual convenience in their respective occupations and uses of it, and that it was the practice that firm to have work, such as repairing and finishing, done upon their cars while standing on the siding in front of their shops, then and in that case also the plaintiff was rightfully, and not wrongfully, on the siding when he was injured. And the same, of course, would be the case, they should be satisfied from the evidence that instead of being joint owners with the railroad company, Jackson & Sharp were .the exclusive owners and proprietors of that part of the siding at the time. And that in any or either of the cases supposed and stated by him, the defendants were bound through their agents or servants who on that occasion had the management and direction of their shifting engine and the removal of the new cars belonging to Jackson & Sharp from that part of the siding, to use ordinary care, diligence and prudence in backing the engine to make the coupling or connection with those cars, to prevent and avoid the contact and collision between them and the dismantled car on which the plaintiff was then at work, standing on the siding between it and the new cars before mentioned, and the injury which resulted from such contact or collision to him. The terms ordinary care and diligence when applied to the management of railroad engines and cars in motion must be understood, however, to import all the care and circumspection, prudence and discretion which the peculiar circumstances of the place or occasion reasonably require of such servants, and this will be increased or diminished according as the ordinary liability to danger and accident and to do injury to others is increased or diminished in the movement and operation of *112them. For instance to illustrate the meaning of it-in the the present case. This accident occurred in shifting cars from a siding. If on that occasion the engineer on the shifting engine knew the position in which the plaintiff then was upon the siding, reason would have dictated and required the exercise of much greater care and caution and the application of less motive force and power in backing his engine to make the coupling with the new car next to him, than it would have required if the plaintiff had not been in such a dangerous position on the siding, or if the engineer did not know that he was there at that time.

But on the other hand it is equally well settled as a principle of law, that the plaintiff was also bound at the same time to use ordinary prudence, care and diligence to avoid the accident and injury which occurred to him on that occasion. Because it is not only an instinct .of our nature and a dictate of reason, but a duty which the law imposes with respect to the legal responsibilities of others, upon every person, no matter how he may be engaged, or what may be his position, to use ordinary care for his own protection and security against such accidents. And the care and diligence which he is bound to exercise, must be in proportion to the danger to be avoided ; that is to say, he is bound to use such care, prudence and diligence as a reasonably prudent man under the peculiar circumstances of the case, would exercise to preserve himself from being injured. You will, therefore, perceive that although the plaintiff may have been there rightfully, it was the duty of both parties to use ordinary care, prudence and vigilance to avoid the accident. The obligation was mutual in that respect, and if both failed to use proper care and diligence to avoid it, they were each in the eye of the law, and of reason likewise, guilty of negligence in reference to it. And if the jury should be satisfied from the evidence that the plaintiff did not use ordinary 'and proper care and prudence on the occasion under all the facts and circumstances proved to avoid the accident and injury sus*113tained by him, then his consequent negligence in contemplation of law contributed to it, and at the same time the law would hold that if his negligence contributed in any degree to the happening of the injury to him, he is not entitled to maintain the action, or to recover any damages for it. Because if he thereby contributed to it, the jury could not ascertain and determine in what degree or proportion his negligence alone contributed to it, in measuring the damages to be allowed him for it, and, therefore, it is an established rule of law in such cases, that where both parties are in fault and have failed to exercise the diligence due from each of them on the occasion, and the ■ plaintiff has by his own negligence contributed to the result complained of, he shall not be entitled to recover any damages whatever for it.

If, however, the jury should be satisfied from all the evidence in the case that the servants of the defendants did not use ordinary care and diligence on the occasion, and that in consequence of their negligence alone the accident and injury complained of happened to the plaintiff', he would be entitled to recover in the action, and their verdict should be in his favor for such an amount of damages as it had been proved he had sustained by the injury, and which should be precisely equal to and commensurate with it.

The plaintiff had a verdict for $5000.