| Lehigh & Wilkes Barre Coal Co. v. Lear

• Decision Date: 25 April 1887
• Citation: 9 A. 267
• Parties: LEHIGH & WILKES BARRE COAL CO. v. LEAR. [1]
• Court: Pennsylvania Supreme Court

9 A. 267

LEHIGH & WILKES BARRE COAL CO. v. LEAR. ^[1]

Supreme Court of Pennsylvania

April 25, 1887

[Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Error to common pleas, Luzerne county.

Case by Levi Lear against the Lehigh & Wilkes Barre Coal Company for damages for personal injuries.

Plaintiff was injured on December 14, 1875, while crossing, on a public road, the tracks of a branch coal road operated by defendant. He testified that after dark on December 14, 1875, he was driving a covered carriage along a public road; that, as he approached the crossing of the railroad track, he stopped looked up and down, saw nothing and heard nothing, and then drove on the track. The horses passed across, but the carriage was struck by a flat car pushed by an engine, and he was thrown off into a ditch and injured. He further testifies that, at the point where he stopped, the view down the track was obstructed by an engine-house and lumber piles. The defendant produced several witnesses who witnessed the accident, and who testified that plaintiff drove on the crossing on a trot; that they shouted a warning to him, and motioned him to stop; that the whistle was blown, and the bell rung; and that he had been drinking. This suit was begun in 1881.

The court charged the jury as follows:

"This is an action on the case by Levi Lear against the Lehigh &amp Wilkes Barre Coal Company, in which the plaintiff seeks to recover damages from the defendants for personal injuries suffered by him in an accident which occurred in the neighborhood of this city some eleven years ago. There are various legal questions raised by the case, upon which it becomes the duty of the court to instruct the jury. It is the province of the jury to ascertain from the evidence what is the truth of this case as to its facts; but it is the duty of the court to explain to the jury, as well as they can, the rules of law applicable to the truth when it shall have been found by them.

"The first question to which your attention will be directed in this case is this: Was the plaintiff injured by this accident, as he alleges? If you find from the evidence that he was not injured by this accident, then he would not be entitled to recover any damages in this suit.

"In the second place, if the plaintiff was injured, the next inquiry would be: Were his injuries the result of negligence on the part of the defendant? Because, we say to you, as matter of law, that, if the defendants were not guilty of any negligence, then, although it be true that the plaintiff suffered injuries from this accident, he would still not be entitled to recover any damages.

"What, then, in the legal sense, is negligence? It has been variously defined by writers on the subject, but the definition now accepted is that negligence is the absence of ordinary care according to the circumstances. This negligence must be shown and established by the evidence in any given case. It may consist in the doing of something by the party charged with it which evinces want of ordinary care, or it may consist in having omitted to do something which an ordinarily careful person would have done under the same circumstances. Negligence, therefore, may consist either in the commission or in the omission of certain acts. Are you satisfied, then, from the evidence in this case, that the defendants were chargeable with negligence, and that this caused or resulted in the accident and injury of which the plaintiff complains?

"This brings us to the consideration of the subject of the duties of railroad companies in regard to the crossings of roads or highways at grade. And it may be said, as a general statement of the rule of law on this subject, that at such crossings railroad companies are bound to use all such means as reason, experience, and ordinary prudence and care dictate to protect the traveling public from accident or injury in the usual and ordinary use and enjoyment of the highway. Out of this view of the duty of railroads comes the special duty of having signals, such as bells, whistles, watchmen, and of running at no greater speed than is reasonably prudent. The means and precautions which a railroad company must adopt under this rule will differ as the circumstances differ. There is no uniform and universal law applicable alike to, all cases. If the crossing, for instance, is in the open country, exposed to public view in all directions for a considerable distance, the same precautions on the part of the railroad company might not be required as would be if the crossing were, from the nature of things and the surroundings, more dangerous. In this connection I will read to you briefly from one or two cases which are recent decisions on the question now under consideration.

"In the case of Lehigh Val. R. (Co. v. Brandtmaier, [113 Pa. 610, 6 A. 238,] which originated in this county, the decision of the supreme court was filed on the fourth of this present month. From it I read an extract as part of my charge in this case: 'It is the duty of a railroad company, in the running of its trains, to exercise care according to the circumstances; and, where the railroad track crosses a much-traveled street or highway, the company, as well as the public, is bound to exercise a degree of care reasonably commensurate with the danger. It is the duty of the company, on the one hand, to give some sufficient notice of the train's approach, and to moderate the speed of the train to such rate as under the circumstances is reasonably consistent with the public safety. On the other hand, it is the imperative duty of the traveler to stop, look, and listen for approaching trains before attempting to pass over. If he neglects this legal duty, or knowingly attempts to cross in front of a rapidly moving train, he takes his life in his own hands, and assumes the risk of personal injury. The law does not designate the mode in which these precautions against injury on the part of the company are to be exercised. There is, it may be conceded, no common-law duty on the part of the company to station flag-men or to maintain gates at public grade crossings, unless, indeed, under the particular circumstances the public safety cannot otherwise be reasonably secured; but the fact that flag-men are not stationed at such a crossing, and that gates are not there maintained, are matters proper to be considered with other facts in a given case in determining the rate of speed which is reasonably consistent with the public safety.'.

"On the same general subject or branch of the case, I may call your attention to the language of the supreme court in the case of Philadelphia & R. R. Co. v. Killups, 8 Weekl Ncas 529. The court say; 'It is not claimed that, irrespective of circumstances, it is a common-law duty of a railroad company to station flag-men or maintain gates at public grade crossings. A road may be so constructed, however, by making either corners or deep cuts at a public thoroughfare, as to make it more than ordinarily dangerous, and it may thus become the duty of the company to employ flag-men, or adopt other adequate means of warning and protection. Where there is extensive travel on a street or other highway crossing a railroad track, the company as well as the public is bound to exercise a degree of care and diligence commensurate with the risk of accident. It is the duty of the company, on the one hand, to give timely and sufficient notice of the approach of trains at such crossings; while, on the other, it is the imperative duty of the traveler to stop, look, and listen for approaching trains before attempting to pass a railroad crossing. While the law does not point out any particular mode or manner in which notice of approaching trains shall be given, it does require that some suitable and adequate means adapted to the circumstances shall be adopted and applied.'.

"Now gentlemen, these are the general rules of the law, briefly stated, applicable to railroad companies as to their duties at crossings. We say to you, in the next place, as matter of law, that if, in your opinion, the defendants, under the evidence, were guilty of negligence, it still becomes your duty to find from the evidence whether the conduct of the plaintiff himself was free from negligence. Did the plaintiff conduct himself in all respects as an ordinarily careful and prudent man? Or did he exhibit a want of prudence and ordinary care which concurred with the negligence of the defendants in causing the accident and the injury of which he complains? Because we say to you that the rule of law is that, where the accident and injury is the result of the concurrent negligence both of the plaintiff and the defendant, the law will not stop to ascertain who has been the more to blame, but refuses to allow a plaintiff to recover. If, therefore, you should find from the evidence in this case that ...