Ely v. Pittsburgh, Cincinnati, Chicago & St. Louis Railway, Co.
Decision Date | 06 November 1893 |
Docket Number | 37 |
Citation | 27 A. 970,158 Pa. 233 |
Parties | Ely v. Pittsburgh, Cincinnati, Chicago & St. Louis Railway, Appellant |
Court | Pennsylvania Supreme Court |
Argued October 16, 1893
Appeal, No. 37, Oct. T., 1893, by defendant, from judgment of C.P. Washington Co., Feb. T., 1892, No. 479, on verdict for plaintiff, J. W. Ely.
Trespass for personal injuries. Before McILVAINE, P.J.
At the trial it appeared that, on Jan. 15, 1892, at about 6 o'clock P.M., plaintiff, who was a physician, was injured at the grade crossing of defendant's railroad, known as Morgan's crossing about two miles north of Washington. Plaintiff was driving in a buggy, the top of which was up and the side curtains fastened down. Evidence for defendant tended to show that defendant's track was visible from the road all the way from a point nine hundred and eighty feet from the track to a point seventy feet from the track. The view of the track then became obstructed by an embankment and a lumber pile, to a point about twenty feet from the track, when the track became visible for a distance of one thousand to fifteen hundred feet. The evidence of plaintiff as to where and how he stopped, looked and listened was contradictory. It is quoted in the opinion of the Supreme Court.
Defendant's points were among others as follows:
[1]
[2]
[3]
11. Request for binding instructions. Refused. [4]
Verdict and judgment for plaintiff for $2,000. Defendant appealed.
Errors assigned were (1-4) instructions, quoting them.
Judgment affirmed.
A. M. Todd, J. A. Wiley with him, for appellant. -- Plaintiff must rely upon his own story in order to recover, and taking his own story it is manifest that he was guilty of gross contributory negligence, and the court below erred in not unqualifiedly affirming defendant's first and second points: R.R. v. Brandtmaier, 113 Pa. 610; R.R. v. Beale, 73 Pa. 509; R.R. v. Feller, 84 Pa. 229; Marland v. R.R., 123 Pa. 87; R.R. v. Carr, 99 Pa. 510; Urias v. P. & R.R.R., 152 Pa. 326.
M. L. A. McCracken, J. F. McFarland with him, for appellee. -- The fact stated in the first point does not agree with the testimony and was properly refused. Where the evidence is conflicting or where there are inferences from evidence, the question whether plaintiff stopped, looked and listened at the right place or not is for the jury. It is error to rule it as a question of law: McGill v. Pittsburgh & Western Ry., 152 Pa. 333; Ellis v. Lake Shore etc. R.R., 136 Pa. 512; North Pennsylvania R.R. v. Heileman, 49 Pa. 63.
Where there is doubt as to the proper place to stop the question is generally for the jury, and it is error for the court to undertake to determine the fact as a matter of law: Ellis v. Lake Shore etc. R.R., 138 Pa. 521; Newhard v. P.R.R., 153 Pa. 425; Groner v. D. & H. Canal Co., 153 Pa. 396; Gates v. P.R.R., 154 Pa. 572; Lehigh Valley R.R. v. Brandtmaier, 113 Pa. 618; Neimen v. D. & H. Canal Co., 149 Pa. 93.
Before GREEN, WILLIAMS, McCOLLUM, MITCHELL, DEAN and THOMPSON, JJ.
The cases arising from that prolific source of danger and accident, the grade crossing of railroads, are unfortunately numerous, and the lines of legal responsibility for the negligence of defendants or the contributory negligence of plaintiffs, have consequently been drawn sharply, and with fine, though well settled distinctions. The cases beginning with R.R. Co. v. Heileman, 49 Pa. 60, and R.R. Co. v. Beale, 73 Pa. 504, have established not only the rule that the traveler about to cross a railroad track must stop, look, and listen, as an absolute and unbending rule of law, founded in public policy for the protection of passengers in railroad trains, as much as of travelers on the common highways, but also that such stopping, looking and listening must not be merely nominal or perfunctory, but substantial, careful, and adapted in good faith for the accomplishment of the end in view. Hence the necessary corollaries of the rule were drawn in R.R. Co. v. Feller, 84 Pa. 226, and Carroll v. R.R. Co., 12 W.N. 348, and Marland v. R.R. Co., 123 Pa. 487, that the traveler must stop and look where he can see, and that he will not be allowed to say that he did so, when the circumstances make it plain that the proper exercise of his senses must have shown him the danger.
These principles are settled beyond question, but the application of them to the infinite varieties of circumstances and evidence in accident cases is not always easy. All that this court can do is to lay down the general rules, and to say that where the facts are uncontested or the inference of negligence the only one that can be drawn, the court must pronounce the result as matter of law, but where the facts are in dispute, or the inference from them open to debate ...
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