49 Pa. 186 | Pa. | 1865
The opinion of the court was delivered, by
The principal grounds of complaint in this case are, the answer of the court to the third and fifth points of the defendants below.
The third point was, “that if Armstrong knew, or had the opportunity of knowing, that the train of defendants was at the Muncy Station, he was guilty of negligence in approaching the train in a hand-car, and thus occupying the track. The plaintiff cannot recover.”
A negative of this point, I cannot doubt, might have been
The answer of the court to the defendant’s fifth point is also complained of, and with reason, I think. In the first place the judge charged, “if the jury believe that Armstrong was guilty of negligence, there can be no recovery, even if the defendant’s employees were. If he (the deceased) by his conduct contributed
We have repudiated, oftentimes, attempts to draw the line between contributing acts of negligence in fixing their consequences ; and have always held that in such cases neither party can recover from the other. This is the rule of the common law, as old as the common law itself, and rests on the solid reason that one man has no right to recover from another for consequences attributable in part to his own wrong. In Little Schuylkill Navigation Company v. Norton, 12 Harris 465, the chief justice of this court most forcibly presented the true doctrine, when he said, “ the law has no scales to determine in such cases whose wrongdoing weighed most in the compound that occasioned the mischief.” Attention to this principle, thousands of times repeated, in different forms, would have saved the. error here. But the error did not stop at this point, at which slight and gross negligence were compared, and the former pronounced immaterial; the thought seemed to grow, until it culminated in the promulgation of a conclusion, that “ where the negligence is equal there can be no recovery.” This was a negative pregnant, and we can hardly doubt that it was received by the jury to mean that nothing but equality in blame or negligence would prevent a recovery by the plaintiff. This, I think, must have been the case, as in the preceding sentence it was explicitly said that slight negligence would not prejudice a recovery. While it was literally true that equality of negligence would defeat a recovery, it was equally true that less than that — that any negligence of a contributing character would have the same effect. In regard to these positions it is quite appropriate to
We do not think the plaintiff was precluded from recovery on-the ground that her husband was in the same general employ with the defendant’s servants. We do not think he was. He was not the servant of the Catawissa Company. He had nothing to do with them, or they with him. His employment, at the moment of his death, was in obedience to the Philadelphia and Erie Railroad Company. He was keeping the track in repair for them. That they permitted others to use their road did not make him the servant of the latter. I am not for extending the doctrine further than our cases have extended it. I am for leaving it there. It was before us in the case of O'Donnel v. The Allegheny Valley Railroad Company, at the last term of the Western District, and in that decision we did not extend the doctrine. We think no error occurred in ruling this point.
We also arrive at the same conclusion in regard fo the next and last point. We think, on authority, that the engineer was not a competent witness without a release. The following cases are exactly to this effect: 8 S. & R. 124; 2 Jones 81; 5 W. & S. 28; 1 Harris 160. These are in addition to the elementary citations on the paper-book of the plaintiff in error. It was his duty to do the very thing most strongly insisted upon as negligence on the part of the company, namely, to give the moving signal by sounding the whistle. If permitted to swear in order to disprove this, he would be purging himself of fault, and relieving himself of liability over. The law regards this as sufficient to disqualify, whether on the score of interest or policy, or both, I will not now undertake to discuss. There was no error in this ruling.
Eor the reasons given on the first two points noticed in this opinion the case is reversed, and a venire de novo is awarded.