Bradwell v. Pittsb. Etc. Pass. Ry. Co.

• Citation: 20 A. 1046,139 Pa. 404
• Decision Date: 05 January 1891
• Docket Number: 154
• Parties: J. BRADWELL v. PITTSB. ETC. PASS. RY. CO
• Court: Pennsylvania Supreme Court

20 A. 1046

139 Pa. 404

J. BRADWELL v. PITTSB. ETC. PASS. RY. CO

No. 154

Supreme Court of Pennsylvania

January 5, 1891

Argued November 10, 1890

APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS NO. 2 OF ALLEGHENY COUNTY.

No. 154 October Term 1890, Sup Ct.; court below, No. 386 April Term 1889, C.P. No. 2.

On March 4, 1889, a summons was served in an action of trespass brought by John Bradwell against the Pittsburgh & West End Passenger Railway Company, to recover for personal injuries caused by negligence. Issue.

The case was called for trial on March 24, 1890, when, as stated in the appellant's paper-book, after the challenges had been exhausted and a jury selected, but before the jury was sworn, the fourth juror asked to be excused from serving saying that he was an employee of a firm a member of which was a director of the defendant company. The court ordered the juror to be sworn. The record, however, showed no bill of exceptions to the order.

The testimony presented tended to show the following facts: On November 3, 1888, between one and two o'clock P.M., the plaintiff, a farmer about twenty-eight years of age, started to drive to his home from Hay's livery stable Pittsburgh, in a light two-wheel cart, his route lying along Wabash Avenue, traversed by the two tracks of the defendant company. When he started, a horse-car of the defendant was in advance of him, going upon the right-hand track in the same direction. The plaintiff took the left-hand track, and drove along it for nearly 300 yards until he was about abreast of the car, when, seeing another car and a team approaching from the opposite direction upon the track he was pursuing, he attempted to pull over to the right-hand track, in front of the car he was passing, but at that instant the left wheel of his cart struck the end of a rail in the left-hand track which had become loose and had sprung out of place, described by the witnesses as bent up like the runner of a sled. The result was, that the plaintiff was pitched out of his cart to the right, falling under the horses attached to the car on the right-hand track, and that car passed over him, breaking his leg in two places and otherwise injuring him. His cart being caught and held by the end of the rail, the harness upon his horse gave way, releasing the horse. There was testimony for the plaintiff to the effect that the gait at which he was driving was "not very fast," while testimony for the defendant tended to show that he was driving at "a pretty smart trot; pretty fast."

The rail causing the accident had been observed during the morning of that day to be sprung out of place, its upturned end being then between two and three feet above the ground. About eleven o'clock an employee of the defendant company came along and spiked it down, but it did not long remain in place. After it again became loose, one or more cars passed over it, the weight of the car pressing it down as the wheels ran along it, and the rail, when released from this pressure springing up farther than it had been before. A car passed along four or five minutes before the accident. The testimony was conflicting however, as to whether the rail was then in place. At the time the plaintiff approached it, its end was at a height of between four and five feet above the ground. The plaintiff testified that he was keeping a lookout ahead along the track, but did not see the upturned rail. Other witnesses testified that it could easily be seen twenty-five or more feet away. The thickness of the rail was about half an inch.

The uncontradicted testimony of the plaintiff was to the effect that he had expended for medical services, nursing and other assistance rendered necessary by his injuries, nearly $500. He testified, also, that his earning power before the accident was at least $350 per year, and the testimony on his behalf tended to show that he was permanently disabled from following his occupation of farming. On cross-examination, he admitted that he had been drinking that day.

At the close of the testimony, the court, WHITE, J., charged the jury in part as follows:

To entitle the plaintiff to recover in an action of this kind, two things are essential. One is, that the defendant company was guilty of negligence; the other is, that the plaintiff is not guilty of any negligence that contributed to the result. It is not sufficient to prove that the defendant company was guilty of negligence. [However gross the negligence of the defendant, in a case of this kind, the plaintiff cannot recover unless he was not guilty of any negligence that contributed to the result.] Negligence is, in a general sense, carelessness. A man driving along a road is bound to look out, bound to keep his eyes and thoughts about him. . . . Counsel for the defendant company asks me to say, as a matter of law, that the plaintiff was guilty of negligence upon the evidence before us. In certain cases, where it is very manifest and very plain, it becomes the duty of the court to take the question from the jury in a case of this kind. I decline to do that in this case.

[The jury must not infer, however, because I decline to take this case from the jury that I believe the plaintiff was not guilty of negligence. I thought it was a case where the jury ought to pass upon that question, and you are to be thoroughly satisfied, gentlemen, that this accident did not occur in consequence of the carelessness of the plaintiff in his driving. You are to be satisfied on that point, because the duty of the plaintiff is, not only to prove negligence on the part of the defendant, but also to prove that he was clear of contributory negligence. That must appear, that he was entirely clear of any carelessness or negligence that contributed to the result. Contributory negligence in this case would be, of course, careless driving, neglecting to look ahead. The witnesses on the part of the plaintiff testified yesterday that this rail was up from four to five feet high; that is, the end of it; witnesses who looked and saw it from the side. The witness, Day, said this morning that he thought it was about three feet and a half high. Now, if the rail was up from four to five feet high, could not the plaintiff have seen it if he had looked ahead of him? That is the question. He was bound to look ahead. If he had done so, could he not have seen the rail projecting? The plaintiff's counsel suggests that it was projecting in such a way that he would be looking at the end of it, but could he not have seen the rail 50 or 100 feet away before he came to it, if he had been looking? Those rails are sometimes covered with mud, but are generally a little brighter that the ground around; and if that rail had been up four or five feet high, there would have been considerable space along the track where there was no rail, and the side of the rail would have been towards him, not the edge of it, as viewed from the side of the pavement. The plaintiff says he did look ahead. The accident occurred suddenly and he was pitched suddenly under the horses, and the car immediately went over him. But was he? That is for you to say. Were the circumstances such that if he had been looking he would have seen the rail? Not whether he did see it; that is not the question; but, if he had been looking as he was bound to, to see what was ahead of him, could he not and would he not have seen the rail projecting? If so, then he is guilty of contributory negligence in not looking, and if that is a fact, he cannot recover at all.] . . . .

The court is requested to charge for the plaintiff:

1. That it was the duty of defendant company to keep the track of its railway in proper repair, so as to do no injury to the public. This is a condition attendant upon the grant of the franchise to construct it for profit, and, if it neglected or refused to do so, by reason whereof the plaintiff sustained injuries, the defendant company is liable in damages therefor.

Affirmed, provided the plaintiff was not guilty of contributing negligence.

2. That if the jury believe that the plaintiff was thrown from his cart by the loose and upturned rail of the defendant company, by reason whereof he was injured, the verdict must be for the plaintiff.

Answer: This point ignores the question of contributory negligence, and is therefore refused.

5. That the measure of damages for the personal injuries done plaintiff, resulting from the negligence of the defendant company, is the direct expense incurred by plaintiff, the privation and inconvenience he has been subjected to, the pain and suffering, bodily and mental, which he has endured, or is likely to experience, and the pecuniary loss he has already sustained, and is likely to sustain during the remainder of his life, as a result of his injuries.

Answer: If the plaintiff is entitled to recover, this point correctly states the measure of damages.

It was stated in the appellant's paper-book that when the jury in charge of a tipstaff were on the way to the jury room, one of the jurors strayed off from the rest of the panel, and wandered around through the corridors of the court house for some time before he was found and placed with the other jurors, and that this fact was brought to the attention of the court below. The record contained, however, no exception relating to the matter.

The jury returned a verdict in favor of the plaintiff for six and one fourth cents.

A rule for a new trial having been argued before the court in banc, the following opinion and order were filed, WHITE, J.:

The evidence showed gross negligence on the part of defendant company in not keeping its track in repair, and the court so said to the jury. The only question was, was the plaintiff guilty of...