Gates v. Pennsylvania R. Co.

• Decision Date: 08 May 1893
• Docket Number: 182
• Citation: 26 A. 598,154 Pa. 566
• Parties: Gates v. Pennsylvania R.R., Appellant
• Court: Pennsylvania Supreme Court

26 A. 598

154 Pa. 566

Gates v. Pennsylvania R.R., Appellant

No. 182

Supreme Court of Pennsylvania

May 8, 1893

Argued April 18, 1893

Appeal, No. 182, July T., 1892, by defendant, from judgment of C.P. Huntingdon Co., Sept. T., 1891, No. 13, on verdict for plaintiff, Thomas Gates.

Trespass for personal injuries caused by alleged negligent construction of overhead bridge. (See report of former writ in 150 Pa. 50.)

At the trial, before KREBS, P.J., it appeared that plaintiff was injured by falling over an unguarded wing wall of an overhead bridge constructed by defendant company. The bridge carried the railroad over a public highway. Plaintiff, who was a carpenter employed on bridge work by defendant, described the accident as follows:

"On Dec. 21, 1889, I was directed to go to Granville, and knowing that I had to take the Altoona accommodation -- at that time it came along there about half past five, as near as I can remember; all that time -- I got up pretty early and ate my breakfast by lamp light, and after I got done eating I looked at my watch and I had five or six minutes time yet. I lit my pipe and started, took my dinner bucket and as I got out in the public road I thought I heard the train whistling thinking that perhaps may be my watch might be slow or something, I started and ran till I got up to where I turned off to go on to the bridge and slacked up; the road, that is the road I came up on to turn off is descending down and then rising up. Q. This is shown on this map of Africa's. A. Yes, sir. Q. Is this where we represent? A. Yes, sir; I slacked up and after I got about down on to where the ground begins to rise to go on to the approach of the bridge I could see a mile and a half fully up the railroad; I saw no headlight in view and I walked on rapidly, thinking I would strike the bridge near about its centre, in the middle, and ran against something on the left side, and falling at the same time, was the last that I knew till I was carried into the station. Q. Did you ever make any complaint to the township officers or to the railroad company that this place was unsafe? A. No, sir, I never paid any attention to it; I didn't know that there was any complaint to be laid in; I didn't pay any attention that there was no railing there; passing back and forward I was always in a hurry to get home and always in a hurry to get away to make the train to go to work."

The court reserved the question whether plaintiff's remedy did not lie against the township, as the accident occurred within the lands of the public highway. The question of plaintiff's contributory negligence was left to the jury, the court charging in part as follows:

"If, however, you find it was not reasonably safe in the manner indicated, then the inquiry is, did Mr. Gates contribute to the injury he received by a want of ordinary care and prudence on his part, a want of such care and prudence as an ordinarily careful and prudent man would exercise in passing over a common bridge? And, as bearing on that question, you have a right to consider his knowledge of the bridge, the locality in which he lived with reference to the bridge, and whether or not he was acquainted with the situation of the bridge and with the approaches thereto; he would be required to exercise a greater decree of care than a person who was not acquainted with it. And what would be ordinary care in one instance would not be ordinary care in another." [1]

Defendant's points were among others as follows:

"1. That under the evidence in the case the verdict must be for defendant." Not answered otherwise than as in the general charge. [2]

"3. That, if the jury believe that the weight of the evidence shows that the plaintiff was running when he fell, the verdict must be for the defendant. Answer: That point is pertinent on the question to which we have already called your attention. That is the second question involved in this inquiry, if you find the bridge, in the first instance, was unsafe and was not in that condition for reasonably safe use by the public which the act of assembly seems to require. The second proposition was whether or not the plaintiff contributed to this accident; and in that respect this point is pertinent. Our answer is that if the jury find that he was acquainted with the unsafe and dangerous condition, and he ran up there recklessly, he contributed to this accident thereby, and he would not be entitled to recover; but whether he was running or walking at that point is a question of fact for the jury." [3]

Verdict for plaintiff for $3,506.25. Subsequently the court entered judgment for defendant non obstante veredicto on the question of law reserved. An appeal was taken by plaintiff and the judgment was reversed by the Supreme Court and judgment entered for plaintiff: 150 Pa. 50. Defendant then took this appeal.

Errors assigned were (1-3) instructions, quoting them.

Plaintiff moved to quash the appeal.

Judgment affirmed.

J. D. Dorris, W. Dorris with him, for appellant. -- A judgment upon a writ of error, sued out by one of the parties, is no bar to a subsequent writ of error at the suit of the other party, on which different errors are assigned: Ormsby v. Ihmsen, 34 Pa. 462.

The modes of reviewing cases in the Supreme Court by writ of error, by appeal, and by writ of certiorari, which were in use prior to the act of May 9, 1889, P.L. 158, still remain applicable in the same kinds of cases, within the same limits and with the same effect as before, the only difference made by that act being that now they are all called by the same name: Rand v. King, 134 Pa. 641.

All the facts affecting the question of contributory negligence were furnished by plaintiff's testimony. It was for the court to pass upon their legal effect: D.L. & W.R.R. v. Cadow, 120 Pa. 572.

Plaintiff was guilty of contributory negligence: Mueller v. Ross Twp., 152 Pa. 399; Robb v. Connellsville Boro., 137 Pa. 42; McDonald v. Rockhill Co., 135 Pa. 1; Monongahela City v. Fischer, 111 Pa. 14.

Corbalis v. Newberry Twp., 132 Pa. 9; and Dalton v. Tyrone Twp., 137 Pa. 18, relied upon by plaintiff, did not raise the question of contributory negligence, but only that of negligence of defendant.

There is no situation in life involving danger, whether much or little, in which the law does not require a due and proportionate amount of care and attention: Harris v. Commercial Ice Co., 153 Pa. 278.

One who voluntarily risks a known danger cannot recover: Hill v. Tionesta Twp., 146 Pa. 11; Haven v. Bridge Co., 151 Pa. 620; Lynch v. Erie, 151 Pa. 380; Sheridan v. Krupp, 141 Pa. 564; Erie v. Magill, 101 Pa. 616.

Defendant was entitled to a specific answer to the point presented: New York etc. R.R. v. Enches, 127 Pa. 322; Tyrone Co. v. Cross, 128 Pa. 636.

George B. Orlady, for appellee, not heard, cited: Penna. Salt Mfg. Co. v. Neel, 54 Pa. 9; act of May 20, 1891, § 2, P.L. 101; Pennock v. Kennedy, 153 Pa. 579; Ormsby v. Ihmsen, 34 Pa. 462; Hays v. Gallagher, 72 Pa. 136; Born v. Plank Road Co., 101 Pa. 334; Norristown v. Moyer, 67 Pa. 355; Erie City v. Schwingle, 22 Pa. 384; R.R. v. McElwee, 67 Pa. 311; Altoona City v. Lotz, 18 W.N. 524; Eastor Borough v. Neff, 102 Pa. 474; Mill Creek Twp. v. Perry, 20 W.N. 359; Corbalis v. Newberry Twp., 132 Pa. 9; Maynes v. Atwater, 88 Pa. 496; Dalton v. Upper Tyrone Twp., 137 Pa. 18; Bradwell v. Ry. Co., 139 Pa. 404; Baker v. North East Borough, 151 Pa. 234; McCue v. Knoxville Borough, 146 Pa. 580; McGill v. P. & W. Ry., 152 Pa. 331.

Before STERRETT, C.J., GREEN, MITCHELL, DEAN and THOMPSON, JJ.

OPINION

MR. STERRETT, CHIEF JUSTICE

On the motion to quash the writ in this case, the only question is, whether plaintiff's appeal from the judgment non obstante veredicto, resulting in a reversal thereof and entry of judgment in his favor on the verdict, is a bar to this appeal by defendant. We are of opinion that it is not.

On the trial in the court below, the defence was twofold: (a) that defendant was not liable, because the accident occurred within the lines of the public highway, and plaintiff's remedy, if he had any, was against the township, and not against defendant company, and (b) that plaintiff's contributory negligence was a bar to his recovery.

The court having refused to withdraw the case from the jury on the ground of contributory negligence, submitted that question to them, and they found in plaintiff's favor and assessed his damages, subject to the opinion of the court on the reserved question, raised by the first mentioned ground of defence. Afterwards the question of law thus reserved...