Delaware, L. & W. R. Co. v. Cadow

• Decision Date: 28 May 1888
• Docket Number: 90
• Citation: 120 Pa. 559,14 A. 450
• Parties: THE DELAWARE L. & W.R. CO. v. A.E. CADOW
• Court: Pennsylvania Supreme Court

14 A. 450

120 Pa. 559

THE DELAWARE L. & W.R. CO. v. A.E. CADOW

No. 90

Supreme Court of Pennsylvania

May 28, 1888

Argued April 10, 1888

ERROR TO THE COURT OF COMMON PLEAS OF COLUMBIA COUNTY.

No. 90 January Term 1888, Sup. Ct.; court below, No. 233 1/2 September Term 1884, C.P.

On September 9, 1884, an action in case was brought by Albert E Cadow against the Delaware, Lackawanna & Western R. Co., to recover damages for injuries alleged to have been caused by the negligence of the defendant. The plea was not guilty.

At the trial of the cause on October 6, 1886, after hearing the plaintiff's testimony, the court, ELWELL, P.J., on motion, directed the entry of a compulsory nonsuit. Subsequently, a rule to show cause why the judgment of nonsuit should not be taken off, was made absolute.

At the second trial on May 4, 1887, the testimony showed in substance that on January 28, 1884, Albert E. Cadow, aged 36 years, left his home at the corner of Seventh street and Strawberry alley, in Bloomsburg, to go to his work at Lockard's Car Shops, on the east side of East street where for several years he had been employed as a fireman. It was between six and seven o'clock in the morning, and very dark. The two tracks of the defendant company's road cross East street, at Sixth street, nearly at a right angle. On East street, on both sides of the street and across the railroad tracks, the sidewalks, for a distance of sixty feet were constructed and maintained by the defendant company and were in good condition at the time referred to. In the roadway of East street, at the railroad crossing, planking was put down on the outside and on the inside of the rails so that vehicles could cross the tracks easily. The planking was about twenty-two feet in length along the tracks, and at either end of the planking the rails were exposed above the ties, with the ballast nearly even with the upper surface of the ties.

The plaintiff's usual route to the shops where he was employed was by the sidewalk on the west side of East street directly across the railroad, thence by the same sidewalk to Gigger's hotel, thence directly across East street to the shop. He had a stiff knee upon a shortened leg, the effect of an injury received in 1865. At the time stated, the plaintiff came up the west side of East street to a certain point where he left the sidewalk and without a light started diagonally across the street in the direction of the shops. In crossing the railroad tracks near the middle of the street his foot was caught on one of the rails, when he fell and broke his leg above the knee. The plaintiff testified, inter alia: "I was a little in a hurry that morning; it was a cold morning; I was afraid the pipes would be frozen up; I had to get over there and get them thawed out;" that there was no street lamp burning that morning; and he had never taken any notice of the condition of the crossing, never looked whether it was planked or not.

The court, DREHER, P.J., of the 43d district, holding special term, charged the jury and answered the points presented as follows:

The defendant corporation, in locating its railroad in this town, laid a structure across East street, one of the principal streets, as I understand it, of this borough. The railroad company had a right thus to locate its road and to build it across this street; in doing so, however, it was under the obligation or duty to the public, so to construct and maintain and operate its road that the public could safely pass over it, using due care and caution. Of course, whenever a railroad crosses a street in a town like this, naturally and necessarily there is more or less danger, at the point where it crosses the road, to persons who may be traveling on the highway; and this fact would impose upon persons traveling on the highway the duty to exercise a greater degree of care when traveling across the tracks than would be required if no railroad were there.

The complaint of the plaintiff in this case is that he received an injury, because of the negligence of this railroad company defendant, on the morning of January 28, 1884, in regard to the railroad of the company at the point where it intersects the highway. He says that he struck, or "stubbed" his foot against a rail, fell and broke his leg; and he claims now to recover damages for the injury that is done him, alleging that the injury to him was in consequence of the negligence of the railroad company in not putting and keeping this crossing in proper repair. Your first inquiry, therefore, in the natural order, will be whether this railroad company was negligent in the making and maintaining of this crossing; and then, if so, whether the negligence of the company was the proximate cause of the injury to the plaintiff. What is meant by "proximate cause" is that the injury must be the natural and probable consequence of the negligence, such a consequence as, under all the circumstances of the case, might and ought to have been foreseen by the wrong-doer, the railroad company in this instance, as likely to flow from his act.

Was the omission of the railroad company to plank between the rails and to fill up with earth or other material for the whole distance across the street negligence on their part? In other words, was it negligence in them to construct their road at that point in the manner in which they did construct it? I cannot say to you, as matter of law, that the omission of the railroad company to plank that road the whole distance across the street was negligence; it is a question that you must determine, under all the evidence in this cause. The railroad company was bound to so construct their road at that point that people passing along that road or street could do so with safety to themselves and to their teams and carriages, they using reasonable and ordinary care and caution while crossing the tracks. Persons traveling on foot would have a right to travel on that street, would have a right to cross it at any point at which they chose to cross it: if they were traveling along a highway in which a railroad runs parallel with the line of the street, then to cross would be to take great risks upon themselves. While a pedestrian has the right to use the public highway, he must exercise such care and caution while on a part of the street devoted to or used for the purpose of traveling with teams, carriages and on horseback, must use such care, and caution as the circumstances at the time require, what is called ordinary caution. What we mean by ordinary care is such care, such caution, as a man of ordinary care and prudence would exercise under the same state of circumstances.

We have it in evidence here that sidewalks were constructed along the line of East street, and at the point where the railroad crosses this street; that these sidewalks were constructed by the defendant company over and across the line of their railroad, crossing both tracks, and there is no complaint that the company has failed in any respect to perform its duty in relation to these sidewalks. Where there are paved sidewalks in a town like this, they are intended for footmen; and the streets are intended primarily for the passage of carriages, horses, persons using teams or riding on horseback; yet, as I have already said, a footman may leave the sidewalk and cross the street at other points than at regular paved crossings, but in doing so, he must exercise due care and caution, such care, of course, being graded or gauged according to the immediate, surrounding circumstances.

If you find from the evidence that the defendant company was guilty of negligence, and that the injury to the plaintiff was the consequence of such negligence, then the plaintiff will be entitled to recover damages, unless he himself was guilty of contributory negligence. However much the railroad company may be in fault, if this plaintiff himself was guilty of negligence in crossing that road, or crossing at that point at the time and under the circumstances he did, and if his negligence contributed in any degree to the injury which he suffered, the law holds that he cannot recover any damages. The defendant company claims that the plaintiff was guilty of negligence in crossing at the point where he did cross on that morning, and that his negligence and carelessness in so doing did contribute to his injury. Negligence is the omission of something that the exigency of circumstances requires. Was this defendant negligent? Was he careless, in attempting to cross the street at the point where this railroad intersects it? He was employed in a shop somewhere near this crossing, and had been employed there for several years, and for nearly ten months had been in the habit of crossing these railroad tracks at this point from three to four times daily, having moved on the first of April, 1883 into the house where he resided when this accident occurred. He tells us that his usual route was to pass along the west side of East street on the sidewalk, crossing over the railroad track until he came into the vicinity of Gigger's hotel, and then to cross over the street directly to the shop. He does not remember that he ever crossed the street at the point of intersection with the railroad, though he says he may have done so a few times. It is argued by defendant's counsel that the plaintiff must necessarily have known the condition of this railroad, and that, if it was dangerous, he must have known, or might have known, that fact; and that, knowing that fact, his attempt to cross over the railroad there, in order to save a short distance in his walk or travel, precludes his recovery in this suit. We instruct you that if this crossing was dangerous, and if this plaintiff knew that fact when he...