Ely v. Pittsburgh, Cincinnati, Chicago & St. Louis Railway, Co.

Decision Date06 November 1893
Docket Number37
Citation27 A. 970,158 Pa. 233
PartiesEly v. Pittsburgh, Cincinnati, Chicago & St. Louis Railway, Appellant
CourtPennsylvania 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. The undisputed evidence in this case shows that the plaintiff could not see the defendant's tracks at a point thirty to forty feet distant from the said crossing, and that the plaintiff was fully aware of this fact, and that the plaintiff voluntarily chose this point as the one from which to take his observations, and stopped, looked and listened at no other point until he went upon the crossing; he was therefore guilty of contributory negligence and cannot recover in this action. Answer: If the facts in this case are as stated in this point, then its conclusion is correct; but as the counsel for the plaintiff deny that the facts are accurately stated, we will leave it to you to determine the facts." [1]

"2. The evidence introduced by both the plaintiff and defendant shows that at a point fifteen to twenty feet distant from the crossing, on the side from which it was approached by the plaintiff, a clear and unobstructed view of the defendant's tracks in the direction from which the train approached could be had, and that the plaintiff drove past this point without any attempt to stop, look, or listen; he was therefore guilty of contributory negligence and cannot recover in this action. Answer: This point is refused; we leave it to you to determine the facts of the case, and to determine, under the law we have given to you, whether or not the plaintiff was guilty of contributory negligence." [2]

"9. If the jury believe that had the plaintiff stopped, looked and listened when within twelve to twenty feet of the crossing, he would have seen or heard the approaching train and that he did not so stop, look and listen, then their verdict must be for the defendant company. Answer: This point is refused; we leave it to you as a question of fact to be determined under all the evidence in this case, and under our charge, whether the plaintiff stopped, looked and listened in a manner and at a place so as to comply with the requirements of the law as we have given it to you." [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.

OPINION

MR. JUSTICE MITCHELL:

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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