Ellis v. Railroad Co.

• Decision Date: 05 January 1891
• Parties: H. W. ELLIS v. LAKE SHORE ETC. R. CO.
• Court: Pennsylvania Supreme Court

Page 506

138 Pa. 506

H. W. ELLIS v. LAKE SHORE ETC. R. CO.

Supreme Court of Pennsylvania.

Argued October 14, 1890.

Decided January 5, 1891.

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

APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS OF MERCER COUNTY.

No. 131 October Term 1890, Sup. Ct.; court below, No. 185 January Term 1890, C. P.

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Mr. S. R. Mason (with him Mr. George G. Green and Mr. O. G. Getzen Danner), for the appellant:

1. We conceded upon the trial that the fact of the plaintiff's stopping, looking and listening before attempting to cross the track, was proved and was not contradicted. Yet the court magnified it to the jury, and left the impression on their minds, by inference, that a reciprocal duty to stop the train, before reaching a dangerous crossing, rested on the defendant. This was the tendency of the charge. Our points should have had direct answers. The first point did not ask the court to say that the fact of sounding the alarm whistle was proved, but simply to declare the law, unqualifiedly, upon the point as put. The second point was simply a statement of the law as declared by this and every other court in the union, before which the question has been raised: Penna. R. Co. v. Beale, 73 Pa. 504; Schoefert v. Railway Co., 62 Iowa 624; Harris v. Railroad Co., 41 Iowa 227; Benton v. Railroad Co., 42 Iowa 142; Haas v. Railroad Co., 47 Mich. 407; Chaffee v. Railroad, 104 Mass. 108; Lake Shore R. Co. v. Hart, 87 Ill. 529; Lake Shore R. Co. v. Miller, 25 Mich. 274; Central R. Co. v. Feller, 84 Pa. 226.

2. Upon the testimony of the plaintiff, three distinct facts were proved, which were undisputed; (a) that this crossing was a place of known danger; (b) that it was well known as such to the plaintiff; and (c) that he attempted to cross the track without knowing whether a train was approaching or not, and without even taking the pains to know whether or not he could see down the track himself when he last stopped. Upon these facts, the court should have instructed the jury that there could be no recovery in the case. The answer to the defendant's third point was vague and uncertain, and not responsive to the point as put. We are unable to see what bearing the proximity of other crossings had upon the case or upon the point. And there is no law regulating the speed of trains, except in thickly populated places, under municipal regulations; if there was, it would form no excuse for want of proper care upon the part of the person injured at a crossing: Michigan C. R. Co. v. Campau, 35 Mich. 469; Grand Rapids R. Co. v. Huntley, 38 Mich. 537 (31 Am. Rep. 321); Pzola v. Railroad Co., 54 Mich. 273; Chicago R. Co. v. Jacobs, 63 Ill. 179; Chicago R. Co. v. Lee, 68 Ill. 582; Grove v. Railroad Co., 67 Me. 100; McKonkey v. Corning, 40 Iowa 205; Schofield v. Railway Co., 8 Fed. R. 488; Reading R. Co. v. Ritchie, 102 Pa. 425.

3. Conceding, for the sake of the argument, that this was a special train running at a high rate of speed, and that no warning of its approach was given; still there could be no recovery if the plaintiff was guilty of contributory negligence: Schofield v. Railway Co., 114 U. S. 615; Cleveland Ry. Co. v. Elliott, 28 Ohio 340 (14 Am. Ry. Rep. 124); Penna. R. Co. v. Righter, 42 N. J. 180; Haas v. Railroad Co., 47 Mich. 407; Williams v. Railroad Co., 64 Wis. 1. But the defendant cannot be held to a stricter account in running a special train than in the case of any other. The same uniform rule must apply to the running of all trains. The judge was in error in giving force to the fact that this was a special train, and demanding special care from the company. Then he coupled with this, in such a way as to give it with the jury the force of a fact proved, the statement that the train was running at the rate of from forty to sixty miles an hour, whereas there is no evidence to support it. And the general tenor of the charge was misleading. The comments upon the credibility of the engineer and fireman, who were entirely disinterested, could have no other effect upon the average juror than to prejudice his mind against the witnesses and the defendant's case.

Mr. S. H. Miller (with him Mr. Q. A. Gordon and Mr. James A. Stranahan), for the appellee:

The plaintiff asked for no specific instructions upon the matter of speed, disconnected from the more important question as to whether any signal was given of the approach of the train. The defendant, however, boldly asked the court, in its second point, to say, in effect, that no attainable speed in approaching the crossing would constitute negligence. This proposition is not sustained by the decisions cited in support of it. On the contrary, the facts and circumstances of each particular case must govern the question of speed: Reeves v. Railroad Co., 30 Pa. 454; Reading R. Co. v. Ritchie, 102 Pa. 425; Penna. R. Co. v. Ogier, 35 Pa. 60; Lehigh V. R. Co. v. Brandtmaier, 113 Pa. 610. While, if the plaintiff had entirely neglected to stop, look and listen, the court could declare the omission to be negligence, as matter of law, yet, as it was shown and conceded that this duty was performed by him, the questions whether in view of all the circumstances it was sufficiently performed, and whether there was anything more incumbent upon him, were to be passed on by the jury: Arnold v. Railroad Co., 115 Pa. 135; Penna. R. Co. v. Garvey, 108 Pa. 369; Lake Shore Ry. Co. v. Frantz, 127 Pa. 297; McNeal v. Railroad Co., 131 Pa. 184; Penna. R. Co. v. Ogier, 35 Pa. 60; Penna. R. Co. v. Ackerman, 74 Pa. 265. This court has never yet held that a traveler is bound, as a matter of law, to get out of his conveyance and go upon the track to look for trains. Penna. R. Co. v. Beale, 73 Pa. 504, and Central R. Co. v. Feller, 84 Pa. 226, were not ruled on any such principle.

OPINION, MR. CHIEF JUSTICE PAXSON:

We do not think it was error to decline to affirm the defendant's first point. The vice of the point is that it assumed that the railroad company had performed its whole duty, provided the whistle was sounded and the bell rung at a proper distance from the crossing. But there was another element in the case which the jury were necessarily compelled to pass upon, viz., the rate of speed at which the train approached the crossing. The character of the crossing itself was a circumstance which could not be ignored, and which necessarily affected the relative duties of both the plaintiff and the company. If it was a dangerous crossing, as was practically admitted on both sides, it was the duty of the plaintiff to exercise the more care in approaching it. At the same time, it was equally the duty of the defendant company to see that their trains passed it at a reasonable rate of speed, proportioned to the danger. In other words, negligence is the absence of care according to the circumstances and must be measured by the apparent danger. While a high rate of speed is allowable, and perhaps necessary, in rural districts, the same rate of speed might be attended with peril to life in more thickly populated sections, and at dangerous crossings.

By the defendant's second point the learned judge was asked to instruct the jury that if they "find that there were obstructions in the way which prevented the plaintiff from seeing down the track as he approached the same, and from the point where he testifies he stopped, then it was his duty as a prudent man not only to look and listen, but also to get out of his wagon and go upon the track and look for approaching trains, and if necessary to lead his horses across. Anything short of this would be contributory negligence on his part, and there could be no recovery in this case."

The learned judge answered this point as follows:

"The evidence on the part of the plaintiff tends to show that the plaintiff had a good view of this road from his wagon up and down at the point where he first stopped, and between that and the point where the next stop was made, as well as at the point where he stopped the last time. We are not warranted in affirming this second proposition of law. We refuse it; leaving it to the jury to say whether the plaintiff did stop and look and listen at a place where he could see up and down the track, and whether he used due care and diligence in approaching that crossing as ought to be used by a man of ordinary care and prudence."

The above point was evidently based upon Penna. R. Co. v. Beale, 73 Pa. 504, where the rule is laid down that it is the duty of a traveler when about to cross a railroad, if he cannot see...