RAILROAD REPORTS

ST. LOUIS, M. & S. E. Ry. Co. v. BUSICK.

(Supreme Court of Arkansas, April 1, 1905.)

[86 S. W. Rep. 674.]

Cattle Guards-Defects-Right of Action-Common Law.-Injuries arising from defective stock guards, or their absence, or through unsafe places upon the right of way of a railroad, where there is no duty owing to the public, are actionable only by virtue of Kirby's Dig. §§ 6644, 6645, requiring railroads to construct stock guards, and there is no common-law remedy for such injuries.

Same Same-Remedies.-Under Kirby's Dig. §§ 6644, 6645, requiring railroads to construct stock guards, and providing that a failure to comply with the statute shall render the railroad company liable to the person aggrieved for a penalty of not less than $25 nor more than $200, the penalty is the only remedy for violation of the statute, and one whose stock is injured by the insufficiency of cattle guards cannot recover the value of the stock.

Same Same-Penalty-Evidence.-Evidence of the value of the stock is, however, admissible to aid the jury in determining the amount of the penalty to be imposed.

Same-Sufficiency-Evidence.*-Under Kirby's Dig. § 6644, requiring railroads to construct suitable and safe stock guards, the fact that a stock guard does not prevent stock from passing over it does not conclusively show that it is unsuitable and unsafe.

Appeal from Circuit Court, Randolph County; John W. Meeks, Judge.

Action by Charles S. Busick against the St. Louis, Memphis & Southeastern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

L. T. Parker and Orr & Luster, for appellant.

Chas. S. Busick, pro se.

HILL, C. J. Busick sued the railroad company, alleging that it constructed a cattle guard in such a negligent and defective manner that it would not prevent the passage of stock over it, and left it in an unsafe condition, and that by reason thereof his mare was injured in it, and died from such injuries, and prayed judgment for her value. A demurrer to the complaint was overruled, issue taken on the answer, a trial by jury, and verdict for Busick, and from judgment thereon the railroad has appealed. Among other instructions, the court gave this: "If the jury

*For the authorities in this series on the subject of the duties and liabilities of railroad companies with respect to cattle guards, in actions for injuries to live stock, see foot-note appended to Campbell v. Iowa Cent. Ry. Co. (Iowa), 12 R. R. R. 601, 35 Am. & Eng. R. Cas., N. S., 601.

St. Louis, etc., Ry. Co. v. Busick

find from a preponderance of the evidence that the cattle guard in which it was alleged plaintiff's horse was injured was defectively constructed, so as not to effectively prevent stock from passing over the same, and that plaintiff's horse was injured while attempting to pass over the same, then you will find for the plaintiff in such sum as the evidence may show was the value thereof at the date of the injury." Prior to the passage of the act of April 10, 1893, which is contained in sections 6644, 6645, Kirby's Dig., there was no duty resting upon railroad companies to construct stock guards. Defective stock guards, or their absence, or other unsafe places, upon the right of way, where there was no duty owing to the public, gave rise to no cause of action for injuries received from them. Railway v. Walbrink, 47 Ark. 330, 1 S. W. 545; Railway v. Fairbairn, 48 Ark. 493, 4 S. W. 50; Railway v. Ferguson, 57 Ark. 16, 20 S. W. 545, 18 L. R. A. 110, 38 Am. St. Rep. 217; Railway v. Vosburg, 71 Ark. 232, 72 S. W. 574. Therefore the whole remedy for injuries from stock guards must be looked for in this statute, and not elsewhere, as there is no common-law remedy for such injuries. Railway v. Ferguson, 57 Ark. 16, 20 S. W. 545, 18 L. R. A. 110, 38 Am. St. Rep. 217; Railway v. Vosburg, 71 Ark. 232, 72 S. W. 574.

The first section (section 6644, Kirby's Dig.) provides when and where stock guards may be required, and that they shall be "suitable and safe stock guards" and that they must be kept in repair. The next section (section 6645, Kirby's Dig.) provides that a failure to comply with the requirements preceding shall render the railroad company liable to the person aggrieved thereby for a penalty of not less than $25 nor more than $200 for each and every offense, to be collected by civil action. In Railway 7. Vosburg, 71 Ark. 292, 72 S. W. 574, the court said of this penalty: "The inference is that the penalty, being recoverable by the party aggrieved, was intended as a full compensation to him for the injury received, and therefore he is limited to the remedy given by the statute." It follows that the complaint praying damage for the value of the mare, and the instruction in question, and others given embracing the same theory, had no place in this suit, which should be for a penalty alone, and not for damages. The admission of evidence of the value of the mare, as indicating a basis for the amount of penalty which the jury, in its discretion, might award, would not be error. The more serious error of the instruction is that it instructs the jury that if the cattle guard was defectively constructed, "so as not to effectively prevent stock from passing over the same, and that plaintiff's horse was injured while attempting to pass over the same," then the railroad company would be liable. In Railway v. Goset, 70 Ark. 427, 68 S. WV. 879, the court laid down a different rule: "The law does not impose an impossible or impracticable duty upon the company, and, when its stock guard is as perfect and as well adapted for the purpose of turning stock as it is practicable to make it, in connection with

McKee v. Harrisburg Traction Co

the safe and prudent operation of the road, that is all the law requires, and the company has discharged its duty under the But the question is usually one of fact for the jury, and it would not be proper for the court to instruct them that the company has discharged its duty if the guard is similar to those used by other first-class railroads, nor, in a case like this, to instruct that the fact that stock occasionally pass the stock guards is not sufficient to show that the guard was unsafe.” The instruction in question ignores this rule, and substitutes a rule that the stock guard must effectively prevent stock from passing; making, in fact, the railroad an insurer that no cattle. can pass the stock guard. The complaint is defective, the instructions based on a wrong theory, and the judgment must be reversed and remanded; but leave will be granted the plaintiff to amend, if so advised, so as to make this a suit for a penalty, and show himself a party aggrieved, within the statute, by reason of the defective guard, and the defects in it must be tested before the jury under instructions embodying the rule above laid down. Reversed and remanded.

MCKEE v. HARRISBURG TRACTION Co.

(Supreme Court of Pennsylvania, March 6, 1905.)

[60 Atl. Rep. 498.]

Street Railroads-Collision with Bicyclist.*-In an action to recover for injuries received by collision between plaintiff's bicycle and an electric car, evidence held insufficient to show negligence on the part of defendant, requiring submission to jury.

Appeal from Court of Common Pleas, Dauphin County. Action by James T. McKee against the Harrisburg Traction Company. Judgment for plaintiff. Defendant appeals. Re

versed.

Argued before MITCHELL, C. J., and DEAN, FELL, BROWN, MESTREZAT, POTTER, and ELKIN, JJ.

Charles L. Bailey, Jr., and Le Roy J. Wolfe, for appellant. W. M. Hargest, for appellee.

FELL. J. On a Sunday afternon in July the plaintiff was riding on a bicycle on a street in Harrisburg on which the defendant's electric cars ran. Behind him a man was riding a horse, at a slow trot, and leading another horse, for the purpose

*As to care required of those in charge of street cars to avoid collisions with other users of streets, see foot-note appended to Searles 7. Elizabeth, etc., Ry. Co. (N. J.), 13 R. R. R. 781, 36 Am. & Eng. R. Cas., N. S., 781; foot-notes appended to Holden v. Missouri R. Co. (Mo.), 13 R. R. R. 440, 36 Am. & Eng. R. Cas., N. S., 440; Anniston Elec. & Gas. Co. v. Hewitt (Ala.), 12 R. R. R. 312, 35 Am. & Eng. R. Cas., N. S., 312.

McKee v. Harrisburg Traction Co

of accustoming them to the electric cars. Fearing injury by the horses, the plaintiff turned aside and allowed them to pass by him, and then followed 20 or 25 feet behind them. When about the middle of the block the led horse showed some evidence of fright at an electric car which approached from the opposite direction, and, as the car was about to pass or in the act of passing, it turned towards the curb and blocked the passage between the curb and the car tracks. The plaintiff, to avoid running into the horse, rode towards the track. When close to it, he saw an open summer car approaching and within 20 feet of him. He then attempted to turn and ride between the car and the horses. He did not get far enough away from the track, and the front wheel of his bicycle was struck by the running board of the car. The plaintiff did not see the car until he was within six inches or a foot of the track and approaching it. Until this time the motorman had no opportunity to see him, because he was behind the horses. When the horse shied, the motorman turned off the power, and, as he passed the horses, he had his hand on the brake, and was watching them to see whether they were under control. The only matter of dispute at the trial was as to the rate of speed of the car. In regard to this there was the usual difference of opinion, but there was testimony tending to show that the car was running 15 or 20 miles an hour.

Three grounds of negligence were alleged: That the car was not equipped with suitable appliances for stopping it; that it was in charge of a motorman known to the defendant's officers to be habitually careless; that the excessive speed of the car frightened the horses, and prevented the plaintiff from escaping from his perilous position behind them. Of the first two there was no proof, and we find nothing in the testimony in relation to the third that would warrant a finding by the jury that the accident was caused by the motorman's negligence. The car was running rapidly. It is intended that electric street cars should run rapidly. The use of electricity as a motive power by street railway companies has increased the danger to all persons using city streets, and of this danger they must take notice. "Rapidity of transit is no longer a mere convenience to the traveler; it has become a matter of vital interest to the general business of the community." Thane v. Traction Co., 191 Pa. 249, 43 Atl. 136, 71 Am. St. Rep. 767. The car was at the middle of the block, with a clear track, and it was not shown that its speed was improper. Aside from the merest conjecture. of two or three witnesses, there was nothing in the case from which it could be inferred that the speed caused the horses' fright. But if we assume that a rapidly moving car is more likely to frighten a horse than a slowly moving one, there was nothing to indicate to the motorman that the high speed might be a danger to any one. The horses had been brought to the street frequently before to train them, and on these occasions he had not been signaled to slow up as he passed them. Neither

McKee v. Harrisburg Traction Co

he nor the man in charge of the horses apprehended any trouble from them; but to guard against the possibility of it, he watched the horses' actions and turned off the power, keeping his hand on the brake so as to be able readily to control the car. The accident cannot be attributed to the speed of the car, unless we assume that the speed caused the horses' fright and prevented the plaintiff's escape after he had committed the mistake of getting too near the track. If we accept both of these assumptions, the defendant cannot be held liable unless we further assume that the motorman should have anticipated what had not before occurred, the fright of the horse and the blocking of the passageway, and that some one riding close behind the horse would turn towards the track instead of stopping or turning toward the curb. This would be the building up of a case by assumption and inference, instead of by the affirmative proof of negligence which the law requires. True, when an act is clearly negligent, one may be held liable for its unforeseen consequences, however remote, which follow in the natural sequence of events. But an act cannot be held to be negligent when, as in this case, there was no reasonable ground for supposing that it would cause injury to any one.

There was no negligence on the part of the motorman in not sooner stopping the car. He had no chance to stop it. If the speed was that testified to by the plaintiff's witnesses, the collision occurred in less than a second after he could have seen the plaintiff. Negligence cannot be imputed because of the failure to perform a duty so suddenly and unexpectedly arising that there is no opportunity to comprehend the situation and act according to the exigency. Hestonville, etc., Pass. Railroad. Co. v. Kelley, 102 Pa. 115; Phillips v. Railway Co., 190 Pa. 222, 42 Atl. 686. In Funk v. Traction Co., 175 Pa. 559, 34 Atl. 861, a boy ran diagonally across the street and suddenly came in contact with a rapidly moving car. It was said in the opinion: "It was not the speed of the car that caused the injury, but the sudden and unexpected act of the plaintiff in running against the car, if such were the fact, that occasioned the accident. There was not opportunity to guard against it, and hence no breach of duty." Kline v. Traction Co., 181 Pa. 276, 37 Atl. 522; Pletcher v. Traction Co., 185 Pa. 147, 39 Atl. 837; Miller v. Traction Co., 198 Pa. 639, 48 Atl. 864, and many other cases, in which children suddenly ran in front of or against rapidly moving cars, were decided on the same ground.

The eighth assignment of error is sustained, and the judgment is reversed, and judgment is now entered for the defendant.