Central Railroad Co. of New Jersey v. Feller

• Decision Date: 07 May 1877
• Citation: 84 Pa. 226
• Parties: The Central Railroad Co. of New Jersey <I>versus</I> Feller <I>et al.</I>
• Court: Pennsylvania Supreme Court

Page 226

84 Pa. 226

The Central Railroad Co. of New Jersey versus Feller et al.

Supreme Court of Pennsylvania.

March 29, 1877.

May 7, 1877.

March 29th 1877.

Before AGNEW, C. J., MERCUR, GORDON, PAXSON, WOODWARD and STERRETT, JJ. SHARSWOOD, J., absent

Error to the Court of Common Pleas of Carbon county: Of January Term 1877, No. 256.

Albright & Freyman, for plaintiff in error.—The death of Feller was caused by his own negligence, and this court should have taken the case from the jury.

The duty of stopping is more manifest when an approaching train cannot be seen or heard than when it can. If the traveller cannot see the track from any cause he should get out and if necessary lead his horse: Pennsylvania Railroad Co. v. Beale, 23 P. F. Smith 504.

Persons about to cross a railroad are bound to recognise the danger and to make use of the sense of sight as well as hearing, and if one sense cannot be used the obligation is the greater to use the other, and to ascertain before attempting to cross if a train is in dangerous proximity, and if they do not they cross at their own risk and such conduct is negligence as a matter of law: Lake Shore Railroad Co. v. Miller, 25 Mich. 274; Chicago & Rock Island Railroad Co. v. McKean, 40 Ill. 218; Bellefontaine Railroad Co. v. Hunter, 33 Ind. 335.

If the plaintiff's own case discloses contributory negligence he cannot recover: Pennsylvania Canal Co. v. Bentley, 16 P. F. Smith 30; Cleveland and Pittsburgh Railroad Co. v. Rowan, Id. 393. If believing the plaintiff's witnesses there was not enough upon which to found a reasonable conclusion, it is not a question of the weight of evidence, but there is no evidence at all: Pennsylvania Railroad Co. v. Shay, 1 Norris 198.

Allen Craig and W. M. Rapsher, for defendants in error.—It is not incumbent on the part of a plaintiff in order to recover damages for his death to show affirmatively that before attempting to cross the track, he did stop and look and listen. The common-law presumption is that every one does his duty until the contrary is proved, and in the absence of all evidence on the subject, the presumption is that the decedent observed the precautions which the law prescribes before he attempted to cross: Pennsylvania Railroad Co. v. Weber, 26 P. F. Smith 168; Weiss v. Pennsylvania Railroad Co., 2 Weekly Notes 214.

If the plaintiff's evidence does not disclose contributory negligence, the burden is on the defendant to disprove care: Pennsylvania Railroad Co. v. Weber, supra; Weiss v. Pennsylvania Railroad Co., supra; Pennsylvania Canal Co. v. Bentley, supra; Cleveland & Pittsburgh Railroad Co. v. Rowan, supra; Lehigh Valley Railroad Co. v. Hall, 11 P. F. Smith 368.

What is proper care cannot be determined by any fixed rule of law, but must depend upon the facts of the particular case: Phila., Wil. & Balt. Railroad Co. v. Stinger, 28 P. F. Smith 226; Pennsylvania Railroad Co. v. Ackerman, 24 Id. 265; Pennsylvania Railroad Co. v. Lewis, 29 Id. 45; Whart. on Neg., sect. 420, and n. 1; Hoyt v. City of Hudson, 3 Law & Eq. Rep. 275; Phila. & Trenton Railroad Co. v. Hagan et al., 11 Wright 244.

Chief Justice AGNEW delivered the opinion of the court, May 7th 1877.

This case was well tried in the court below, except in a single aspect which the court failed to notice. The consequence has been that the jury, looking at one side only, followed the common bent of jurors when a railroad company is a party. Had the consequence of Henry Feller's negligence been the destruction of the train and a heavy loss of human life, the case would have been seen very differently. Being himself the only sufferer, the interests of the Railroad Company and the public have been lost sight of. A motion for a nonsuit at the close of the plaintiff's evidence would have disclosed the true character of the case. Taking that evidence alone we have this state of facts: Henry Feller had driven to Weissport with a load of ties, crossing the railroad, and was returning in the afternoon in broad daylight. He was perfectly familiar with the crossing, having driven over it frequently for several years, often two and three times a week. His team of mules was gentle and manageable. On the return the ascent is steep, passing a row of houses in front of iron works, which extended nearer to the railroad. A watch-house eight feet in width stood about five feet from the railroad and from six to eight feet from the road he was travelling. Between the iron works and the watch-house is a considerable space through which he could see up the railroad beyond the depot, about six hundred and fifty feet. Feller drove his team and empty wagon past this opening without stopping, and came to a stand right before the...