Appeal form the District Court of the United States for the Middle District of Pennsylvania; Albert L. Watson, Judge.
Before BUFFINGTON and DAVIS, Circuit Judges, and DICKINSON, District Judge.
DICKINSON, District Judge.
The complaint voiced in the action brought in the Court below, is the loss of the property of the plaintiff below by fire due to the averred negligence of a railroad company in blocking a public highway, thereby preventing a Fire Hose Company from reaching the scene of the fire in time to extinguish the flames before any damage was done.
It is going outside the record but it may be assumed that the owner of the property was insured and that the recovery is for the benefit of the underwriter, so that the questions of law raised may be considered on their legal merits without danger of justice being jostled from its seat by any feelings of sympathy.
The action is one of negligence. There are only two questions raised. The jury resolved both in favor of the plaintiff below. The questions were and are:
1. Was there any evidence of the negligence of the defendant below to support the verdict?
2. Did the negligence, if any, contribute to the damage done?
The Question of Negligence.
The defendant in fact did obstruct the crossing of the highway by its standing train of cars. Grade crossings of highways by railroads are not unlawful under the laws of Pennsylvania, although there is an avowed policy of the law to abolish them when this is practicable. Any movement of a train across a highway does obstruct the crossing for the time being. Such obstructions are unavoidable and hence excusable.
Much time and labor has been devoted to the discussion pro and con of the "reasonableness" of the obstruction here. All this goes to the conclusion to be reached under all the evidence. The cited cases of Kirstein v. Philadelphia & Reading R. Co., 257 Pa. 192, 101 A. 338, 5 A.L.R. 1646, and American Sheet & Tin Plate Co. v. Pittsburgh & Lake Erie R. Co., 3 Cir., 143 F. 789, 12 L.R.A., N.S., 382, 6 Ann.Cas. 626, treat of this question.
The question presented on this appeal is a much narrower question. It is whether there is evidence of negligence to submit to the jury. The Pennsylvania Act of June 9th, 1911, 67 P.S. Pa. § 452, declares it to be unlawful for a railroad company to obstruct a crossing with their locomotives or cars. This Act was passed since the cases cited were decided. There would, because of this, be evidence in any case of blocking which would carry it to the jury. The trial Judge in this case so ruled, and in this we think he was right.
Did the Negligence Contribute to the Damage?
A distinction must be recognized between negligence and what may be termed actionable negligence. To make negligence actionable it must not only exist but it must have contributed in some degree to the damage done. The highway in this case was blocked and the house of the plaintiff below was burned. Assuming that the blocking was a negligent obstruction did the holding back of the fire ...