# Pennsylvania R. v. Jones

> Court of Appeals for the Third Circuit · July 7, 1903 · 123 F. 753

URL: https://www.frixlaw.com/law-library/cases/8751366

## Case

- **Full name:** PENNSYLVANIA R. CO. v. JONES
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** July 7, 1903
- **Citations:** 123 F. 753; 59 C.C.A. 87; 1903 U.S. App. LEXIS 4033
- **Precedential status:** Published
- **Opinion:** Dissent by Archbald
- **Judges:** Archbald, Gray
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8751366

## Opinion text

ARCHBALD, District Judge
(dissenting). It was expressly decided in Railroad v. Driscoll, 176 Ill. 330 , 52 N. E. 921 , that a railroad company could not be convicted' of negligence for failure to have a butt post or obstruction at the end of a stub switch by which cars would be prevented from going off, and that it was error to submit to the. jury the question of the safety of the switch without it, or to admit evidence of the use of such posts by other roads. This case is squarely in point, and is based upon the doctrine announced in Tuttle v. Railroad, 122 U. S. 189 , 7 Sup. Ct. 1166, 30 L. Ed. 1114 , that a railroad company cannot be compelled, according to the varying and uncertain opinions of juries, to adopt any particular contrivance or device in the construction of its road in order to be found in the exercise of ordinary care. See, also, Twitchell v. Grand Trunk Railroad (D. C.) 39 Fed. 419 . But, without resting the case upon this, there are other considerations by which the same result is reached. The switch or siding where the accident occurred was not the property' of the defendant company, although they frequently used it, but belonged to one Althouse, the owner of the coal yard into which it ran; and express permission for its use was obtained the day before by the request to have the gate left open. The company was not responsible, therefore, for the general character of the switch, but only for its use at the time in the condition in which it stood if it was not reasonably safe. But the fact is that it was not unsafe for any ordinary and reasonable use, and the accident would not have occurred if proper care had been employed. It was the result, not of running onto the switch, but of running off of it, and for this the company was not responsible. It was directly due to the negligence of the crew in charge of the train, as is plainly shown by the evidence, and the court, in my opinion, should have so declared it. A place or appliance provided by an employer for his employés is safe within the requirement of the law, when, not being inherently dangerous, it is safe if used with due and ordinary care, and for any extra hazard arising out of heedlessness in its use he is not to be held answerable. This is the doctrine that, as it seems to me, is applicable here. There was no negligence on the part of the company in directing the switch to be used, simply because the low trestle at its extremity had an unguarded end. That it had was obvious, if any precaution had been taken to see, and the company were *760 not called upon to advise the trainmen of anything so manifest. 20 Am. & Eng. Enc. Law (2d Ed.) p. 94. They had a right to assume that they would use their own eyes and judgment. On the other hand, those in the immediate control of the train had no right to back into the obscurity and darkness of the coal yard without taking the precaution to know what there was at the end, nor to rely, as they apparently did, upon being brought up standing by some obstruction sufficiently massive to resist the force of the cars and moving engine. Every stub switch necessarily has an end, which in some cases is guarded and in others is not, as the evidence as well as common observation shows. Some extend into depots, freight houses, or other structures; some into yards; some end on trestles, as here; many stop simply where they happen to. In view of these uncertainties, and as a matter of ordinary prudence, it was the duty of the trainmen in this instance to know where they were going, and what was the condition of the switch at the end. The brakeman—plaintiff’s husband—who was killed had a light, and was on the car that went over the trestle. Had the conductor, instead of turning his back and going into the office, or the other brakeman, whose whereabouts does not appear, been stationed so as to receive a signal from decedent when the end was reached, and repeated it to the engineer, the accident would not have occurred; and the failure to observe some such'precaution must be. regarded as- its direct and proximate cause. It is not traceable, except in the remotest degree, to the order of the company to use the switch, for which they were alone responsible, and in which there was no negligence, but to the way in which that order was executed, and the attendant negligence of the decedent or his co-employés, for which the company cannot be justly held.
Entertaining these views, I think the judgment should be reversed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8751366. Public record. Not legal advice.