Gilton v. Hestonville, Mantua & Fairmount Passenger Railway

166 Pa. 460 | Pa. | 1895

Opinion by Mb. Justice Fell,

The plaintiff was injured by being thrown from his wagon while driving on the tracks of the Hestonville, Mantua & Fairmont Passenger Railway Company, the corporation defenddant. The accident was caused by the rim of the wheel of his wagon being caught by the end of a rail which had become worn and split. A nonsuit was entered upon the ground that it did not appear that the defendant had notice, actual or constructive, of the defective condition of the rail. It was shown by the testimony that the car tracks for two squares from the place of the accident were in a condition dangerous to persons driving on the street because the rails were worn and many of them insecurely fastened or entirely loose; that the rail which caused the injury was so worn that it would not hold the spikes by which it had been fastened down, and that at one end it was split and the parts separated about an inch. The rail appeared to have been in this condition for some time, and the defects were apparent and would have been observed by any one supervising the track.

After the accident this rail was found bent so that its end was two feet above the surface of the street. It did not clearly appear whether the rail had been bent by the wheel of the plaintiff’s wagon catching in the spilt end, or by a like preceding cause. Either conclusion might have been drawn by the jury, and it was unimportant which was reached. If the rail had become so worn that it was loose from the timbers to which it had been spiked, and its end so split that a wagon wheel would probably become wedged in it, the danger was as real, though not as manifest and imminent, as if its end was bent up. The proof was distinct that the rim of the wheel was caught in the end of the rail, and whether it was caught before or after the rail was bent went only to the degree of nonrepair of which the defendant should be held to have had notice. If the rail was worn and loose and split it was an object of danger whether bent or not, and its becoming bent would naturally follow as the result of its condition. The defect in the rail did not occur suddenly or from an unusual or an accidental cause; it was the result of ordinary and long-continued use, it was apparent and the danger from it probable.

'Without holding the defendant to a higher duty than to make repairs after notice, either actual or constructive, of defects, there seems to be enough in the evidence to have carried the case to the jury. The duty of the defendent to keep the tracks in repair was clear and imperative. It was bound to know that use and that climatic influences would produce defects in the rails, and it was bound to make such a continued inspection as would detect those jathich were apparent. The defects in the rail in question did not arise in a day, nor probably in a week or a month. The certainty that they would arise in time imposed the duty of continued vigilance.

The judgment is reversed and a procedendo awarded.