182 Pa. 115 | Pa. | 1897
Opinion by
The plaintiff, Alexander Hanlon, was sitting on top of a load of hay, which he was bringing into Philadelphia. His son was on a seat attached to the front of the wagon, driving the two horses. They had turned in from Cooperstown road to the Philadelphia and West Chester turnpike road. Upon this road there was a passenger railway operated by means of steam dummies, consisting of a cpmbined steam engine and passenger car, the engine being at one end and the car with the usual projecting platform at the other. The track was laid on the south side, leaving a space of at least twenty feet, which was the driving part of the road. Plaintiff had driven twenty-five or thirty
It necessarily must be a rare case where negligence can be imputed to a steam railroad company because horses on a highway have taken fright at the escaping steam, ringing of the bell or sounding of the whistle of the locomotive. Such noises are the inevitable consequences of steam propulsion, and one of the inconveniences to which the traveler by horseback or vehicle must submit. The public demand steam railroads ; they cannot accomplish their purpose without, at times, affrighting animals on the highway. To say that under ordinary circumstances, if an engineer sees a team of horses on the highway giving evidence of fright, he must stop until the driver has quieted them, would be so palpably unreasonable that it would be a waste of words to discuss the question. Nor does appellee so contend: appellant only assumes that this is the argument. The circumstances here are not the usual, or ordinary ones, from which spring accidents and injury from affrighted horses. The Phila
Taking the charge and answers to points as a whole we are unable to discover any error which calls for a reversal.
It is urged that the defendant had, before the accident, leased its railroad to the West Chester Traction Company, which last named company was then operating it; therefore, the lessee alone was answerable and not the defendant. Assuming it had authority to lease its franchise and property, of which there is no evidence, it did so for a compensation, a rental of $12,000 per year; it still maintained its corporate organization, and onfy bargained with another company to run its railroad. No law is pointed out whereby the lessor, by the mere contract of letting, can exempt itself from corporate liability to the public. Undoubtedly there may be a statutory exemption from such liability ; but the lessor cannot create such exemption, as against the public, by a mere contract with a third party to operate the road. The contract itself does not undertake to stipulate for such exemption and imposition of liability on the lessee; but even if it did, such right to contract is not evidenced by any. grant from the commonwealth, the creator of the defendant corporation. See Van Steuben v. Railroad Co., 178 Pa. 374; Nelson v. R. R. Co., 26 Vt. 721; R. R. Co. v. Brown, 17 Wallace, 450. We think the court below committed no error in refusing to affirm appellant’s second point, wherein the court was asked to instruct the jury that, as at the date of the accident its lessee was operating the railroad, there could be no recovery against defendant. So the sixth assignment of error is overruled, and the judgment is affirmed.