hogsett’s appeal, NO. 104.
Opinion,
Me. Justice Clare::
The defendant, Robert Hogsett, is the owner of the Lemont furnace, on the line of the Southwest Pennsylvania railroad, and the plaintiff, who, on the thirteenth of October, 1883, was a passenger upon one of the railroad trains, brings this suit to recover damages for a personal injury, received through the alleged negligence of the defendant’s employees. It appears that a railroad track was used in connection with the furnace, and that what is called a dinkey engine was operated thereon, in furnishing supplies of stock, ore, and coke to the furnace. The furnace track, in running out from the furnace to the coke ovens, forms, as it were, the arc of a circle, and the railroad track, crossing the furnace track twice, subtends the arc as a chord.
The collision which occurred at the first crossing, was caused by the culpable negligence of the defendant’s engineer; this fact is conclusively established by the verdict of the jury, and in the determination of the questions of law raised upon the assignments of error, this fact must necessarily be assumed. It is unnecessary, therefore, to refer to the evidence bearing upon that question. The appellant’s contention is, however, that, as the plaintiff’s injuries were not received in that collision, but in the collision which subsequently occurred at the other extremity of the chord, the negligence of the engineer, under the circumstances, cannot be regarded as the proximate, but as the remobe cause of the injury. Ordinarily, the question* of proximate cause is for the jury; but, where the facts are not in dispute, the determination of that question is for the court: West Mahanoy Tp. v. Watson, 112 Pa. 574; s. c. 116 Pa. 344. -Some reference to the undisputed facts, therefore, is necessa.ry to a complete understanding of the question thus raised.
[374]*374It is conceded that in the first collision, although no one was injured, the rear truck of the rear coach of the passenger train was derailed. The brakeman pulled the automatic cord which operates the air brakes. The engineer put on the air from the engine, and, the truck having regained the track, the train, which consisted of three cars, came to a full stop, with the middle car standing upon the second crossing. The engineer of the dinkey says that, about the time of, or immediately before the collision, he reversed his engine, shut off the steam, and fearing that they would be crushed, both the engineer and the fireman jumped from it to the ground. By some means, however, presumably by the jar of the collision, the throttle was re-opened, and the dinkey at once started with some speed around the arc to the second crossing, where it came in collision with. the middle coach, in which the plaintiff was riding. The injuries complained of were received in this second collision. The appellant’s contention is that the throttle having been closed before Leehan, the engineer, left the dinkejq the second collision, under all the circumstances, could not have been foreseen by him, as the natural and probable consequence of his conduct, and that, being in fear of his life, he had a right to quit the engine for a place of safety. It may be, perhaps, that the engineer and fireman, being under actual apprehension of great bodily harm, were, in any criminal aspect of the case., justified in leaping from the engine to save themselves, even if in so doing they should put in jeopardy the lives of others. But, assuming this to be so, it must be remembered that it was their own negligence which put them in fear of their lives, and constrained them to leap from the engine and submit it, without control, to the consequences of the collision. They will be justified, perhaps, as we have said, in saving themselves, but it does not follow that either they, or their employer, would not be held for the negligent act which not only put them in peril but resulted in personal injury to the plaintiff.
It is true, as the appellant contends, that the injury must be the natural and proximate consequence of the negligence, — a consequence likely to flow from the negligent ,act. The engineer would be held to have foreseen whatever consequences might ensue from his negligence without the intervention of some other independent agency, and both his employer and [375]*375himself would be beld for what might, in the nature of things, occur in consequence of that negligence, although, in advance, the actual result might have seemed improbable : Oil City Gas Co. v. Robinson, 99 Pa. 6. We do not know that the throttle was opened by the jar of the collision, only from the fact that it was liable to be so, and the engineer will be presumed to have foreseen what was liable to occur. The inquiry must always' be whether there was any intermediate cause, disconnected from the primary fault and self-operating, which produced the injury: Milwaukee etc. Ry. Co, v. Kellogg, 94 U. S. 469. But no intermediate cause, disconnected with the primary fault and self-operating, existed in this case, to affect the question of the defendant’s liability; it was the engineer’s negligence that* caused the first collision, and what occurred in consequence of this collision was not broken by the intervention of any independent agent, whatever; the first collision derailed the truck, and at the same instant opened the throttle and turned loose the destructive agency which inflicted the injuries complained of. The negligence of the defendant’s engineer was the natural, primary, and proximate cause of the entire occurrmiee.
The appellant’s further contention, however, is that, as plaintiff was a passenger on the Southwest Pennsylvania Railroad C»., it was a proper and legal defence for him to show that the negligence of the railroad company contributed to the injury; that, in such case, the negligence of the company, which was a common carrier, must be imputed to the plaintiff as a passenger in the carrier vehicle. Lockhart v. Lichtenthaler, 46 Pa. 151, and Phila. etc. R. Co. v. Boyer, 97 Pa. 91, are cited in- support of this doctrine. In Lockhart v. Lichtenthaler, it was held that, where a passenger in a carrier vehicle is injured by a collision, resulting from the negligence of those in charge of it and those in charge of another vehicle, the carrier only is answerable for the injury; and this case was followed by Phila. etc. R. Co. v. Boyer, where the same rule was applied. The decision in Lockhart v. Lichtenthaler, as we said in Dean v. Railroad Co., 129 Pa. 520, was made by adopting the conclusion of the English courts in Bridge v. Railway Co., 3 M. & W. 247 (1838), in the Exchequer; Thorogood v. Bryan, 8 C. B. 115 (65 E. C. L. 114), and Cattlin v. Hills, 8 C. B. 123, (1849), in the Common Bench. These cases were followed in [376]*376tbe Exchequer in Armstrong v. Railway Co., 44 L. J. Exch. 89 (1875), L. R. 10 Exch. 47.
But Thorogood v. Bryan, supra, which is the leading case, has recently been overruled in the English Court of Appeals: Tbe Bernina, Mills v. Armstrong, 12 Prob. & D. 58; and the doctrine, although formerly accepted in many of the states, is now generally disapproved. The authorities in England, and the great current of authority in this country, are against it. The cases are collected in Dean v. Railroad Co., supra. They are numerous, and it is unnecessary to refer to them here.
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hogsett’s appeal, NO. 104.
Opinion,
Me. Justice Clare::
The defendant, Robert Hogsett, is the owner of the Lemont furnace, on the line of the Southwest Pennsylvania railroad, and the plaintiff, who, on the thirteenth of October, 1883, was a passenger upon one of the railroad trains, brings this suit to recover damages for a personal injury, received through the alleged negligence of the defendant’s employees. It appears that a railroad track was used in connection with the furnace, and that what is called a dinkey engine was operated thereon, in furnishing supplies of stock, ore, and coke to the furnace. The furnace track, in running out from the furnace to the coke ovens, forms, as it were, the arc of a circle, and the railroad track, crossing the furnace track twice, subtends the arc as a chord.
The collision which occurred at the first crossing, was caused by the culpable negligence of the defendant’s engineer; this fact is conclusively established by the verdict of the jury, and in the determination of the questions of law raised upon the assignments of error, this fact must necessarily be assumed. It is unnecessary, therefore, to refer to the evidence bearing upon that question. The appellant’s contention is, however, that, as the plaintiff’s injuries were not received in that collision, but in the collision which subsequently occurred at the other extremity of the chord, the negligence of the engineer, under the circumstances, cannot be regarded as the proximate, but as the remobe cause of the injury. Ordinarily, the question* of proximate cause is for the jury; but, where the facts are not in dispute, the determination of that question is for the court: West Mahanoy Tp. v. Watson, 112 Pa. 574; s. c. 116 Pa. 344. -Some reference to the undisputed facts, therefore, is necessa.ry to a complete understanding of the question thus raised.
[374]*374It is conceded that in the first collision, although no one was injured, the rear truck of the rear coach of the passenger train was derailed. The brakeman pulled the automatic cord which operates the air brakes. The engineer put on the air from the engine, and, the truck having regained the track, the train, which consisted of three cars, came to a full stop, with the middle car standing upon the second crossing. The engineer of the dinkey says that, about the time of, or immediately before the collision, he reversed his engine, shut off the steam, and fearing that they would be crushed, both the engineer and the fireman jumped from it to the ground. By some means, however, presumably by the jar of the collision, the throttle was re-opened, and the dinkey at once started with some speed around the arc to the second crossing, where it came in collision with. the middle coach, in which the plaintiff was riding. The injuries complained of were received in this second collision. The appellant’s contention is that the throttle having been closed before Leehan, the engineer, left the dinkejq the second collision, under all the circumstances, could not have been foreseen by him, as the natural and probable consequence of his conduct, and that, being in fear of his life, he had a right to quit the engine for a place of safety. It may be, perhaps, that the engineer and fireman, being under actual apprehension of great bodily harm, were, in any criminal aspect of the case., justified in leaping from the engine to save themselves, even if in so doing they should put in jeopardy the lives of others. But, assuming this to be so, it must be remembered that it was their own negligence which put them in fear of their lives, and constrained them to leap from the engine and submit it, without control, to the consequences of the collision. They will be justified, perhaps, as we have said, in saving themselves, but it does not follow that either they, or their employer, would not be held for the negligent act which not only put them in peril but resulted in personal injury to the plaintiff.
It is true, as the appellant contends, that the injury must be the natural and proximate consequence of the negligence, — a consequence likely to flow from the negligent ,act. The engineer would be held to have foreseen whatever consequences might ensue from his negligence without the intervention of some other independent agency, and both his employer and [375]*375himself would be beld for what might, in the nature of things, occur in consequence of that negligence, although, in advance, the actual result might have seemed improbable : Oil City Gas Co. v. Robinson, 99 Pa. 6. We do not know that the throttle was opened by the jar of the collision, only from the fact that it was liable to be so, and the engineer will be presumed to have foreseen what was liable to occur. The inquiry must always' be whether there was any intermediate cause, disconnected from the primary fault and self-operating, which produced the injury: Milwaukee etc. Ry. Co, v. Kellogg, 94 U. S. 469. But no intermediate cause, disconnected with the primary fault and self-operating, existed in this case, to affect the question of the defendant’s liability; it was the engineer’s negligence that* caused the first collision, and what occurred in consequence of this collision was not broken by the intervention of any independent agent, whatever; the first collision derailed the truck, and at the same instant opened the throttle and turned loose the destructive agency which inflicted the injuries complained of. The negligence of the defendant’s engineer was the natural, primary, and proximate cause of the entire occurrmiee.
The appellant’s further contention, however, is that, as plaintiff was a passenger on the Southwest Pennsylvania Railroad C»., it was a proper and legal defence for him to show that the negligence of the railroad company contributed to the injury; that, in such case, the negligence of the company, which was a common carrier, must be imputed to the plaintiff as a passenger in the carrier vehicle. Lockhart v. Lichtenthaler, 46 Pa. 151, and Phila. etc. R. Co. v. Boyer, 97 Pa. 91, are cited in- support of this doctrine. In Lockhart v. Lichtenthaler, it was held that, where a passenger in a carrier vehicle is injured by a collision, resulting from the negligence of those in charge of it and those in charge of another vehicle, the carrier only is answerable for the injury; and this case was followed by Phila. etc. R. Co. v. Boyer, where the same rule was applied. The decision in Lockhart v. Lichtenthaler, as we said in Dean v. Railroad Co., 129 Pa. 520, was made by adopting the conclusion of the English courts in Bridge v. Railway Co., 3 M. & W. 247 (1838), in the Exchequer; Thorogood v. Bryan, 8 C. B. 115 (65 E. C. L. 114), and Cattlin v. Hills, 8 C. B. 123, (1849), in the Common Bench. These cases were followed in [376]*376tbe Exchequer in Armstrong v. Railway Co., 44 L. J. Exch. 89 (1875), L. R. 10 Exch. 47.
But Thorogood v. Bryan, supra, which is the leading case, has recently been overruled in the English Court of Appeals: Tbe Bernina, Mills v. Armstrong, 12 Prob. & D. 58; and the doctrine, although formerly accepted in many of the states, is now generally disapproved. The authorities in England, and the great current of authority in this country, are against it. The cases are collected in Dean v. Railroad Co., supra. They are numerous, and it is unnecessary to refer to them here. What was there said was given as an individual opinion, merely, and was, to some extent, perhaps, obiter dictum, but we are now unanimously of opinion that the views, there expressed somewhat in advance, contain a proper exposition of the law. The identification of the passenger with the negligent driver, or the owner, or with the carrier, as the case may be, without his co-operation or encouragement, is a gratuitous assumption. As Mr. Justice Field said, in Little v. Hackett, 116 U. S. 366, “ There is no such identity. The parties are not in the same position. The owner of a public conveyance is a carrier, and the driver, or the person managing it, is Ms servant; neither of them is the servant of the passenger, and his asserted identity with them is contradicted by the daily experience of the world.” The rationale of the rule of Thorogood v. Bryan is expressly disavowed in our own case of Lockhart v. Lich-tenthaler, and it is now rejected as untenable, and wholly indefensible.
Nor is there any rule or principle of public policy which will support such a doctrine. If a person is injured by the concurrent and contributory negligence of two persons, one of them being at the time the common carrier of his person, there is no reason, founded in public policy or otherwise, which should release one of them and hold the other. It is true, the carrier may be subjected to a higher degree of care than his co-tortfeasor, but this affords no reason why either or both of them should not be held to that degree of care, respectively, which the law imposes upon them, and to be answerable in damages accordingly. The general rule undoubtedly is, if a person suffers injury from the joint negligence of two parties, and both are negligent in a manner which contributes to the [377]*377injury, they are liable jointly and severally, and it would seem in principle to be a matter of no consequence that one of them is a common carrier. Neither the comparative degrees of care required, nor the comparative degrees of culpability established, can affect the liability of either.
The whole subject is fully discussed in Dean v. Railroad Co., and we do not desire to repeat what was there said. We think the law was correctly stated in the charge, and in the answers to the points submitted by the defendant’s counsel; and the
Judgment is affirmed.
hogsett’s APPEAL, NO. 105.
Mr. Justice Clark:
For reasons given in our opinion filed in. the case of Henry C. Bunting v. Robert Hogsett, No. 104 October Term 1890, the
h. c. bunting’s appeal.
There was evidence in this case that the plaintiff, Henry C. Bunting, at the time of the trial was suffering from what is known as Bright’s disease of the kidneys. Upon a chemical analysis, albumen was found in his urine; he suffered from dizziness, failure of sight, and double vision; he was feeble, had shortness of breath, and a staggering gait, and exhibited other symptoms of this malady. The testimony of some of the medical experts was that they believed him to be suffering from Bright’s disease, and there was little, if any, evidence to the contrary. The court very properly, therefore,' instructed the jury that there was proof of this fact in the case; that it was a dangerous disease; and that they should take this into consideration in determining Mr. Bunting’s expectancy of life and the loss of his earning power. Nor was there any evidence to justify the jury in finding that this disease was caused by the personal injuries received in the collision. The judgment is therefore
Affirmed.
[378]*378P. J. BUNTING-’S APPEAL.
Me. Justice Clabk :
As we find no assignments of error filed in this case, tbe appellant stating that none will be filed, the prothonotary is directed to enter a non-pros.
Non-pros, entered.