226 Pa. 198 | Pa. | 1910
Opinion by
This was an action of trespass brought in the court of common pleas of Butler county by Martin L. Gibson against the Bessemer & Lake Erie Railroad Company, to recover damages for the killing of plaintiff’s horse and for injuries to his buggy and harness alleged to have been caused by the negligence of defendant’s servants. Upon appeal to the Superior Court the judgment was affirmed, and from this judgment of the Superior Court the present appeal was taken.
It appears that the plaintiff was the owner of a livery stable in the borough of Butler. On June 25, 1906, he let for hire a horse and buggy to one Lantz, who with a companion named Nicholas, drove through the town. In crossing the tracks of the defendant company where they intersect at grade with Main street, a public street of the borough, the horse and buggy were struck by a tender attached to one of the defendant’s engines which was running backward at the time. The horse was killed and the buggy and harness badly damaged. Both Lantz and Nicholas admitted on. cross-examination that they did not stop before driving upon the railroad track. They both testified that they were struck by the tender of an engine, running backward at a speed of fifteen or twenty miles an hour; that there was no bell rung nor whistle sounded, nor warning of any ldnd given them of the approach of the engine, and that there was no flagman or electric bell at the crossing. Another witness, George Howard, who was on the opposite side of the crossing and saw the locomotive approaching, testified that he did not hear any whistle blown or bell rung, and saw no flagman.
Both the trial court and the Superior Court held that the driver of the buggy was by his own admission guilty of contributory negligence, but that such negligence was not imputable to the plaintiff and did not affect his right to recover for injuries to his property caused by defendant’s negligence.
We must again call the attention of counsel to the proper form of assignments of error in an appeal from the judgment of the Superior Court, as recommended in Mellick v. Penna. R. R. Co., 203 Pa. 457. In the present case, the first, second
As to the main question raised, — the relation between a livery stable keeper and one who hires from him a horse and carriage, we have no doubt but that it is that of bailor and bailee, and that the contract between them for the hire and use of the chattels constitutes a bailment. In 1 Bouvier’s Law Diet. (Rawle’s ed., 1897) 213, bailment is defined as “ a delivery of something of a personal nature by one party to another, to be held according to the purpose or object of the delivery, and to be returned or delivered over when that purpose is accomplished.” In Schouler on Bailments (3d ed., 1897), sec. 130, it is said: “In the bailment for hired use, the bailor, technically styled the ‘letter/ shifts over into the party entitled to recompense, while the hirer, in turn becomes bailee. This bailment .... contemplates the temporary beneficial use of a chattel which the bailee must eventually return. . . . Our reports furnish few cases of consequence under this head, save in the instance of hiring a horse or carriage.” In sec. 137 the author still discussing bailments for hire, further says: “Let us take, for example, a case by far the most familiar under this head to English and American courts, namely, that of a horse hired for use.”
In the text-books treating of the law of bailments, constant reference is made to contracts for the hiring of horses and vehicles, as illustrating the contract of bailment. See, for example, Edwards on Bailments (3ded., 1893), sec. 373, and Van Zile on Bailments (2d ed., 1908), sec. 119.
And in Edwards on Bailments (3d ed., 1893), sec. 392, it is said: “The hirer of wagons, or carriages and horses, receiving them into his custody to be used by him at his pleasure, becomes a bailee, and is in no sense a servant of the owner. He is responsible to the owner for the reasonable care of them, and to third persons for any negligence of his servants in the use of them. He is liable to third persons to the same extent as if he were the actual owner of the vehicles and teams used by him.” And again, in 1 Thompson on Negligence (1901), sec. 512, it is said: “Unless the principles upon which the courts have at last settled have been grossly misconceived, the negligence of a bailee or his servants is not imputable to his bailor.” As far back as the case of Bard v. Yohn, 26 Pa. 482, Justice Knox stated the law as follows (p. 489): “If one lets or hires to another a horse to be used exclusively for the purposes of the latter, the owner of the horse is in nowise responsible for the negligent manner in which the horse may be used.”
There is a difference where the owner sends a driver to manage and control the team and vehicle, for in so doing the owner retains the control, and may well be held accountable for the action of the driver, his servant and agent. But in the present case no driver was furnished and the hirer assumed the care
Counsel for appellant further contend that the plaintiff did not present sufficient evidence of negligence to justify the submission of the case to the jury. The record shows that plaintiff relied upon three witnesses to establish negligence. One testified in substance, that the horse was struck by the tender of an engine backing up towards the yard. The engineer gave no signal, did not ring the bell and did not blow a whistle. There was no watchman at the crossing nor any electric bell. There is considerable travel at the crossing. It is one of the busiest streets in town. The engine was traveling, in witness’s judgment, fifteen or twenty miles an hour. It was going so fast that it ran 300 or 400 feet after they hit the rig before they could get it stopped.
Another witness said that he was in the buggy with Lantz; that there was no warning given of the approach of the engine to the crossing, either by blowing the whistle or ringing the bell, and that there was no flagman nor electric bell at the crossing. The crossing was on the extension of Main street in the borough of Butler at a point where there is a great deal of travel. The engine was traveling fast and it went on after it struck the horse, 300 or 400 feet before it came to a stop. Another witness testified that he was on the opposite side of the crossing watching the locomotive as it approached, and heard no whistle or bell. It thus appears that the evidence for the plaintiff was not merely negative. It was positive, and was given by witnesses who alleged that they were in
The assignments of error are all dismissed, and the judgment of the Superior Court is affirmed.