No. 435 | Pa. | May 9, 1887
As we now have this case presented to us we find the evidence much more full and complete than when it was here before. On this last trial the course of the horses was traced with accuracy from the point where the upset occurred, at the ash heap in the township road, to the place on the railroad where they were struck and killed by the moving locomotive. We have also that which we had not in the former ease, a full and particular detail of the manner and immediate cause of their death. On this point we give a summary of the testimony of Jeremiah Ryan, the fireman of locomotive No. 69, and of Jonathan Bretz, engineer of No. 389, both witnesses for the plaintiff. Ryan says : The horses were first seen by him in full flight eastward, on the track of the railroad about twenty-five yards ahead of the engine, which was running at the rate of from fifteen to eighteen miles an hour; that the team was overtaken, and either the sleigh or the horses were struck by the locomotive which drove them from the track, and changed the course of their flight from an eastern to a western direction. He then left his engine and followed in the track of the horses, as he says, about one mile and a half, when he found they had been struck and thrown over an embankment; the one dead and the other mortally wounded. Bretz says, that at about 8:40 p. M., when coming down the mountain with his train, he discovered the horses on the track; signalled “ down breaks twice,” but before he could stop they were struck and thrown from the track over the embankment. Now, omitting entirely the effect that the pursuing train, giving out its warning signals, would have upon the flight of the horses, we have here two facts distinctly proved: first, that the course of the team was entirely changed by the stroke received from engine No. 69 ; second, the actual and. immediate cause of the destruction of the plaintiff’s property was its collision with engine No. 389. These facts narrow the case down to the single question: was the upset at the ash heap, on the township road, the immediate or direct cause of the loss of the horses ? As we have seen, the facts themselves answer this interrogatory in the negative, and necessarily determine the. case in favor of the plaintiff in error. In the case of Hoag v. The Michigan & Lake Shore Railroad Co., 85 Penn. St. 293,
The counsel for the plaintiff have cited us to several cases which they regard as supporting their contention, but an examination of them will, we think, demonstrate that they are not at all in point. Scott v. Hunter, 46 Penn. St. 192, held: where one negligently causes property to be exposed to dangers which he knew, or in the exercise of ordinary prudence might have anticipated, he is responsible for the damage resulting therefrom, though his act may not have been the proximate cause. This is the rule of The Railroad v. Kerr, and, were the facts similar, would apply to the case in hand; but as the facts are not similar, as the supervisors could not reasonably foresee that a comparatively trifling accident at the ash heap, would result in a more serious and fatal one on the railroad, the rule stated does not apply. Of Hey v. Philadelphia,
It is also urged that the question of remote or proximate cause was for the jury and was properly submitted. This would be so were there any dispute about the facts, but where, as in this case, they are not disputed, the court should determine the question as a matter of law. “ It is undoubtedly true, as a general proposition, that the question of proximate cause is for the jury, yet it has been repeatedly held that where there are no disputed facts the court must determine it: ” West Mahanoy Township v. Watson, 112 Penn. St. 574; per Mr. Justice Paxson. It follows from what has been said, that the plaintiff’s recovery in this case should have been confined to the damage done to the sleigh and harness.
The judgment is now reversed and a new venire ordered.