Davidson v. Lake Shore & Michigan Southern Railway Co.

• Citation: 171 Pa. 522,33 A. 86
• Decision Date: 24 October 1895
• Docket Number: 57
• Parties: John C. Davidson, Appellant, v. The Lake Shore & Michigan Southern Railway Company, Lessee of the Jamestown & Franklin Railroad Company
• Court: Pennsylvania Supreme Court

33 A. 86

171 Pa. 522

John C. Davidson, Appellant, v. The Lake Shore & Michigan Southern Railway Company, Lessee of the Jamestown & Franklin Railroad Company

No. 57

Supreme Court of Pennsylvania

October 24, 1895

Argued October 8, 1895

Appeal, No. 57, Oct. T., 1895, by plaintiff, from judgment of C.P. Venango Co., entering nonsuit. Reversed.

Trespass for personal injuries. Before TAYLOR, P.J.

The facts appear by the opinion of the Supreme Court.

Error assigned was entry of nonsuit.

The judgment appealed from is reversed and a venire facias de novo is awarded.

J. H Osmer, A. R. Osmer and N. F. Osmer with him, for appellant. -- The only ground upon which the court below could have properly ordered a compulsory nonsuit in this case was not that negligence on the part of the defendant was not proved but that the evidence on the part of the plaintiff convicted him of contributory negligence. This is wholly unwarranted. The plaintiff stopped, so far as the evidence discloses, at a proper place. Had the whistle been sounded, or the bell rung, at a proper distance from the crossing, the injury would not have occurred: Whitman v. Penna. R.R., 156 Pa. 175; Smith v. Bal. & Ohio R.R., 158 Pa. 82; Ely v. Pittsburgh, Cincinnati, Chicago & St. Louis Ry., 158 Pa. 233; Link v. Phila. & Reading R.R., 165 Pa. 75; Howett v. Phila., Wilmington & Balt. R.R., 166 Pa. 607.

B. H. Osborne, John O. McCalmont with him, for appellee. -- Plaintiff was guilty of contributory negligence: Myers v. R.R., 150 Pa. 386; Gangawer v. R.R., 168 Pa. 265; Sheehan v. R.R., 166 Pa. 354.

In this case there are no disputed facts. The evidence of defendant's negligence was at most only negative, while the contributory negligence of plaintiff was so clearly established that further discussion seems to be unnecessary.

Before STERRETT, C.J., GREEN, WILLIAMS, McCOLLUM, MITCHELL and FELL, JJ.

OPINION

Mr. WILLIAMS, JUSTICE

This appeal is from a judgment entered upon a compulsory nonsuit. The question raised by it is whether the existence of contributory negligence on the part of the plaintiff is, upon the evidence that was before the court, a question of law upon which it was proper for the court to pass, or a question of fact to be submitted to the jury?

It may be stated as a general proposition that where the facts are simple and the evidence by which they are presented is involved in no uncertainty their legal value is for the court to determine; but where the evidence is conflicting or the facts are left in doubt the conclusions are to be drawn by the jury. Illustrations of both branches of this proposition are abundant in our own cases. In Mulherrin v. The D.L. &amp W. Railroad Co., 81 Pa. 366, the plaintiff was struck by an engine while he was walking upon the railroad track. This fact was not denied. We held as a matter of law that he was guilty of contributory negligence and could not recover against the railroad company. In Moore v. The Phila., W. & Balt. Railroad Company, 108 Pa. 349, the plaintiff passing along the highway came to a railroad crossing. He saw a train coming upon one of the tracks. Instead of waiting in a place of safety he advanced to the space between two tracks, and while standing there was struck by an engine moving in an opposite direction to the train he was watching. We held that it was negligence per se for the plaintiff to put himself unnecessarily in a place of danger between the tracks, and that negligence on the part of the company, in the failure to give notice of the approach of the engine, was not enough to justify a recovery. The plaintiff's contributory negligence was plain, and stood in the way of his recovery. The same state of facts was presented in Marland v. Railroad Company, 123 Pa. 487, the Railroad Co. v. Mooney, 126 Pa. 244, and in Connerton v. The D. & H. Canal Co., 169 Pa. 339. In all these cases the injured person was struck by a train on the instant of stepping on the track, and at a crossing where the train could have been seen for a considerable distance, if the injured person had looked to see if it was approaching. We held in these cases that the presumption that the injured person did stop, look and listen was rebutted by the facts; and that as no one possessed of the senses of sight and hearing could have looked or listened without both seeing and hearing the approaching train, which was in plain view and almost on him, there was a legal presumption that he did not stop, look and listen, but negligently stepped in front of the train which he might have seen and heard if he had tried. A similar state of facts was encountered in Myers v. The B. & O. Railroad Co., 150 Pa. 386. The injured person drove in front of a freight train moving at the rate of eight miles an hour, backward, but with the headlight on the rear car by which he was struck. The train was in full view for a third of a mile. It was in the night. The headlight must have been within eighty feet of him at the point where he should have looked, and had he looked it was impossible not to see it. He drove on the track and was instantly struck. He testified that he stopped, looked and listened as he approached the crossing and neither saw nor heard the train. This was plainly impossible in view of all the circumstances. Res ipsa loquitur. The facts spoke a language that could not be misunderstood or disregarded. We said he was guilty of contributory negligence as matter of law and could not recover. In all these cases and in others that might be cited the facts were undisputed. But there is another large class of cases in which the facts were disputed or involved in doubt, and in these we have uniformly held that the question of contributory negligence was for the jury. In McNeal v. The Pittsburg & Western Railroad Company, 131 Pa. 184, there was doubt as to the proper point at which the plaintiff should have stopped,...