Davis v. Pennsylvania R. Co.
| Decision Date | 07 October 1907 |
| Docket Number | 188-1907 |
| Parties | Davis v. Pennsylvania Railroad Company, Appellant |
| Court | Pennsylvania Superior Court |
Argued May 6, 1907 [Syllabus Matter] [Syllabus Matter]
Appeal by defendant, from judgment of C.P. Cambria Co.-1904, No 213, on verdict for plaintiff in case of William and Cora J. Davis v. The Pennsylvania Railroad Company.
Trespass to recover damages for death of plaintiff's son. Before Bell, P. J., specially presiding.
The plaintiff presented the following points:
3. While it is true that trains must be run at a high rate of speed to reach their greatest utility, yet in populous towns and cities where the tracks cross a much traveled street or highway, the speed must be moderated or such other precautions taken by the company as are reasonably commensurate with the danger of life, limb and property. Answer: This point is affirmed.
4. As it is an undisputed fact that there was no flagman stationed or gates maintained at the crossing of the public highway or street by the defendant's tracks at Cresson, where the plaintiffs' son was killed, if the jury find from all the evidence that the public safety could not be reasonably secured at said crossing otherwise than the company having a flagman stationed or gates maintained thereat, they may find negligence on the part of the company, the defendant in this case, on account of the absence of said flagman or gates. Answer: This point is affirmed. We call your attention to our instructions in the general charge that the company were not bound to maintain a flagman or safety gates unless it was a much traveled crossing and a dangerous one. To rule otherwise would be to submit to a jury to find negligence on the part of the railroad company every time that any person was killed at any grade crossing.
5. Even though the whistle were blown and the bell rung on the engine which struck and killed the plaintiffs' son, yet, if under the particular circumstances of the case, the jury find that the public safety was not reasonably secured at the crossing by reason of the absence of a flagman or of gates, they may still find that the defendant was negligent. Answer: This point is affirmed.
6. If the jury find from the weight of the evidence that the whistle on the engine which struck and killed the plaintiffs' son was blown at such a place that it could not be heard at the crossing where the deceased was killed by reason of the fact of the noise caused by another train going east, and also find that no other sufficient warning of a train was given, the jury may find that the defendant was negligent. Answer: This point is affirmed. But at the same time we call your attention to the fact that the railroad company are only required to use ordinary care under the circumstances, and if they provided for the blowing of a whistle at a place where a man of ordinary prudence and judgment would provide for the blowing of a whistle, then they have performed their full duty as far as the blowing of a whistle is concerned.
Defendant's counsel have requested the court to answer the following points:
1. That inasmuch as the testimony is clear that decedent was standing close to the north rail of the track, observing a freight train passing in the opposite direction, he was in a dangerous place, and the plaintiffs cannot recover. Answer: This point is denied, because the deceased, William Davis, Jr., was under the age of fourteen years. If he had been over fourteen we would have affirmed the point, and, as we have stated in the general charge, take the responsibility of directing a verdict for the defendant; but as the deceased was under fourteen, we think it is not for the court to say that he was guilty of contributory negligence, but the question as to whether or not he was guilty of contributory negligence is for the jury.
2. That the measure of the boy's contributory negligence is his capacity to see and appreciate danger; and in the absence of clear evidence of the lack of it, he will be held to such measure of discretion as is usual in those of his age and experience, and the question is for the court. Answer: This point is denied, and our remaining answer would be the same as our answer to defendant's first point.
3. Inasmuch as the engineer and the decedent had a clear view of the crossing and the approach of the train for more than 4,000 feet, the fact there was no safety gates or flagman at the crossing is immaterial. Answer: This point is denied as applicable to this present case for the reason that William Davis, Jr., was under the age of fourteen. If he had been over the age of fourteen, then, as we have said in our general charge, we would say that he was guilty of contributory negligence and direct a verdict for the defendant.
4. Inasmuch as there was a clear view of more than 4,000 feet between the crossing and the train, a speed of forty miles per hour is not excessive at this particular crossing. Answer: This point is denied as put. The question of the speed of the train is for the jury, if they come to the question of alleged negligence on the part of the defendant.
5. That there is not sufficient evidence to submit to the jury that it is an extraordinarily dangerous grade crossing. Answer: This point is denied. That is a question for the jury to consider under the weight of the evidence.
6. That inasmuch as the engineer saw the boy for a long distance and the tower men saw him for almost 600 feet standing on the track watching a freight pass, the presumption that he stopped, looked and listened is withdrawn, and the facts not being controverted, he was guilty of contributory negligence, and the plaintiffs cannot recover. Answer: This point is denied, because William Davis, Jr., at the time of his decease, was under the age of fourteen. If he had been over fourteen we would have taken the case from the jury.
7. That under the evidence the verdict should be for the defendant company. Answer: This point is denied. We submit the question to you to determine what your verdict shall be under the law as this court has instructed you, viewed in the light of the evidence as you have heard such evidence.
8. That inasmuch as the mother, who is living, is not a party to this action, the plaintiffs cannot recover. Answer: This point is denied as the case stands at present. The plaintiff, William Davis, Sr., this morning amended his cause of action by adding Mrs. Cora Davis as a coplaintiff, and in that view of the matter the point is denied.
Verdict and judgment for plaintiff for $ 1,250. Defendant appealed.
Errors assigned were above instructions, quoting them.
Affirmed.
H. W. Storey, for appellant. -- At what age, then, must an infant's responsibility for negligence be presumed to commence? This question cannot be answered by referring it to a jury. That would furnish us with no rule whatever. It is a question for the court: Nagle v. R. R. Co., 88 Pa. 35; Parker v. St. Ry. Co., 207 Pa. 438; Kehler v. Schwenk, 144 Pa. 348; Pass. Ry. Co. v. Gallagher, 108 Pa. 524; Funk v. Electric Traction Co., 175 Pa. 559; Kline v. Electric Traction Co., 181 Pa. 276; Miller v. Union Traction Co., 198 Pa. 639; Sheehan v. P. & . R. R. R. Co., 166 Pa. 354; Smith v. P. & R. R. R. Co., 160 Pa. 117; Malloy v. Starin, 99 N.Y.S. 603.
It was not contended by the plaintiffs nor did they deny that the boy was standing in a dangerous place; that he was not taking proper care. In this case the question is for the court; it is not a question of the negligence of the defendant. The train was running at its usual schedule speed, yet the court permitted the jury to determine whether the defendant was negligent in so doing. The train was carrying through passengers, and surely while it was running at its regular speed, about forty miles per hour, it was not a question for the jury to determine: Newhard v. R. R. Co., 153 Pa. 417; Blight v. R. R. Co., 143 Pa. 10; Beynon v. R. R. Co., 168 Pa. 642; R. R. Co. v. Ritchie, 102 Pa. 425.
R. A. Henderson, with him Harvey Roland, for appellees, cited as to the question of the deceased's contributory negligence: Nagle v. R. R. Co., 88 Pa. 35; West Phila. Pass. Ry. Co. v. Gallagher, 108 Pa. 524; Kehler v. Schwenk, 144 Pa. 348; Iaquinta v. Traction Co., 166 Pa. 63; Parker v. St Ry. Co., 207 Pa. 438; Byron v. Central R. R. 215 Pa. 82; Daubert v. D., L. & W.R. R. Co., 199 Pa. 345; Bracken v. Penna. R. R. Co., 32 Pa.Super. 22.
Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ. Opinion by Morrison, J.
This is an action or trespass originally brought by William Davis against the defendant, based on the killing of the plaintiff's son, aged between thirteen and...
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