Fisher v. Pennsylvania R.

Supreme Court of Pennsylvania May 6, 1889

Fisher v. Pennsylvania R., 126 Pa. 293 (Pa. 1889)

17 A. 607; 1889 Pa. LEXIS 872

Collum, Greek, Olaric, Paxsox, Pek, Williams

Opinion of the Court

Pek Curiam:

We need not waste time by the discussion of a point so unimportant and technical as the refusal of the court below to strike off the appeal, for the non-payment of the costs. As was said by the learned judge below, “ It is sufficient to say that the record showed the actual payment of all the costs; that á subsequent alteration of the record without notice' to appellant cannot affect his rights. The appeal is good under the authority of Rice v. Constein, 89 Pa. 479.”

The remaining assignments raise a more serious question. *297The defendant company was sued to recover damages for the loss of plaintiff’s mule. The mule was killed upon the track by one of defendant’s locomotives, it was loose, and for the purposes of this case, must be regarded as straying upon the track. The alleged negligence of the company consisted in not ringing the bell or sounding the whistle as the engine approached the crossing near which the mule was killed. If it was the duty of the engineer to blow the whistle as notice to the mule, 1 do not see why the mule should not be held to the rule, to “ stop, look and listen.” To apply rules to dumb animals which were intended only for reasonable beings brings us dangerously near to the realm of absurdity.

Judgment affirmed.

Reference

Full Case Name: CHARLES FISHER v. PENNSYLVANIA R. CO.
Cited By: 2 cases
Status: Published
Syllabus: 1. When the record shows the actual payment of all the costs, on an appeal from an award of arbitrators, the appeal is well taken, and the subsequent alteration of the record entry as to such costs, without notice, will not affect the appellant’s rights. 2. Where the plaintiff’s mule escaped from him, and straying upon a railroad company’s track at a public crossing, was struck by a locomotive and killed, the failure of the engineer to ring the bell and sound the whistle, as the engine approached the crossing, was not negligence on the part of the company, and the mule being a trespasser, the plaintiff could not recover.