Argued
April 18, 1895
Appeal, No. 269, Jan. T., 1895, by defendant, from judgment
of C.P. Luzerne Co., Oct. T., 1889, No. 1036, on verdict for
plaintiff. Reversed.
Trespass
to recover damages for personal injuries received by
plaintiff at a railroad crossing of the highway on which
plaintiff was riding in a carriage. Before LYNCH, P.J.
At the
trial it appeared that on the morning of Aug. 31, 1888, Rev
William Holden, rector of St. Peter's church, Hazleton
accepted an invitation extended to him by Mrs. J. C. Hayden
one of his congregation, to ride in her phaeton, four or five
miles into the country upon some business connected with the
church. The horse was driven by Mrs. Hayden. The accident
occurred at a grade crossing, known as Cranberry crossing,
about three quarters of a mile from Hazleton. Plaintiff
testified that, before they went upon the tracks, the
carriage was stopped, and he looked and listened for an
approaching train. Mrs. Hayden testified that the carriage
did not stop, and four witnesses who saw the occurrence
corroborated her testimony. The testimony of the plaintiff,
of Mrs. Hayden, and of the witnesses who saw the occurrence,
is quoted at length in the opinion of the Supreme Court:
After
John T. Lenahan, Esq., one of plaintiff's counsel had
addressed the jury, and before the charge was begun, the
following paper was presented to the court:
"The
defendant respectfully requests the court to instruct the
jury:
"1.
That counsel for the plaintiff misbehaved himself in stating
to the jury, as follows: 'If ever corruption was resorted
to in a case, this is the case.'
"That
there is no evidence in the case showing or tending to show
that corruption has been resorted to.
"2.
In stating to the jury that 'It' (meaning the
crossing) 'was a death-trap put there by these men'
(meaning the defendants) 'for the purpose of taking the
lives of their fellowmen.'
"3.
In arguing to the jury that the crossing was dangerous after
agreeing to defendant's point that the duty of guarding
the crossing belongs to the Lehigh Valley Railroad.
"4.
In stating to the jury that 'only one, indeed, had an
interest in having the barn disappear, that was the
Pennsylvania Railroad. Its being taken down would damage but
one person, one to be benefited. A body of men capable of
taking the barn down were capable of fixing the foundations
at any spot that would suit the purpose of the case.'
There being no evidence that the defendant had in any way
interfered with the barn or its foundations.
"5.
In saying that the witness, 'Cahoon, is a fellow bumming
around the town. The dollar he expects to get is the only
dollar he has earned in many a year.' And in calling him
a 'bummer.'
"6.
In calling the company's detective a ghoul with a human
face, but the heart of a beast.
"7.
In saying that 'she' (Mary Matthews, meaning),
'was flayed by this ghoul in the newspapers.' Meaning
detective Heffernan, when, in point of fact, there was no
evidence of any such thing.
"8.
In stating as follows: 'They' (the defendants,
meaning) 'may bully the venal, but the day has come when
they must cease the attempted system of terrorizing witnesses
who swear against them,' in absence of evidence that any
such thing has been done.
"9.
In stating as follows: 'Hughes and Cahoon are lying with
a hope of being paid for their dishonest and dastardly
service. These two infamous perjurers should be avoided. It
becomes your duty and mine to stamp those perjurers, as the
tools of a company -- They are infamous birds of prey.'
"10.
In saying (the defendant's witnesses, meaning),
'These scoundrels that have gathered together shall not
be successful until they have been scourged by the heavy hand
of justice.'
"11.
In abusing Mrs. J. C. Hayden, as appears in the notes taken
by the stenographer.
"H.
W. PALMER, Attorney for Defense.
"LUZERNE
COUNTY, ss.
"H.
W. Palmer, being duly sworn, saith, that the above extracts
from the remarks of J. T. Lenahan, Esq., to the jury in the
above stated case are correct and were taken down at the time
of their delivery, by deponent.
"H.
W. PALMER."
"Sworn
and subscribed before me, this 14th day of December, 1893.
"J.
C. WEGAND, Prothonotary.
"Per
S. E. INNES."
Defendant's
counsel upon presenting the above paper requested the court
to withdraw a juror and continue the case, on the ground that
the counsel for plaintiff had misbehaved himself. The court
refused the request, and sealed a bill for defendant. [6]
The
court charged in part as follows:
"It
is not enough that the defendant be negligent and that such
negligence caused the accident. If it be shown in this case
that the plaintiff, Mr. Holden, was guilty of negligence,
however slight, which contributed to the accident, he cannot
recover. The law in this state is well settled, and has been
for many years past, that a traveler upon a public highway
who is about to cross a railroad must first stop (not slack
up), look both ways, up and down the track, and listen for
approaching danger. There is no exception to the rule. I
speak now, of course, of a case of this character. If this
were Mrs. Hayden's case, and she had testified, as she
has here, that she did not stop, look or listen before
crossing the track, she could not recover damages from the
defendant. But this is not Mrs. Hayden's case, but the
Rev. Mr. Holden's. Mr. Holden was her invited companion.
The phaeton and horse, by which they were traveling, if you
believe the evidence of Mrs. Hayden and there is nothing to
contradict it, belonged to her. Mr. Holden was a passenger or
a companion without hire. The conveyance was not that of a
common carrier, it was private. Under such circumstances, if
Mrs. Hayden had been guilty of the negligence of which she
says she was guilty, by driving upon the railroad without
stopping, and if the plaintiff in this case did not know or
had not been informed at the top of the hill that there was a
railroad crossing, the negligence of Mrs. Hayden would not
defeat the action of Mr. Holden. In other words, it would
then be the negligence of Mrs. Hayden and the railroad
company, and Mr. Holden would upon proper proof have a right
to recover from either. But in this case it is in evidence
that although Mr. Holden had not been upon the road before,
he was informed at the top of the hill that there was a
railroad crossing and that it was a bad place, and he was on
the lookout for the approach of trains of cars.
"Under
such circumstances (I am not speaking now of whether he did
stop, look or listen at all), it was his duty to have either
left the carriage or have it stopped. With such knowledge,
being carried gratuitously by Mrs. Hayden, he was bound to
see that the carriage was stopped before crossing the track.
Did the plaintiff stop, look and listen at the time they were
about to cross the railroad track? The court instructs you
that the stop at the top of the hill, nearly 300 feet from
the crossing, was not sufficient. The stop must be at a time
when they are about to cross. The evidence of the plaintiff
is, substantially, that they stopped first at the top of the
hill, that they drove down the hill and to within about
fifteen or eighteen feet of the railroad, and before
attempting to cross the track Mrs. Hayden stopped the horse
again and that he first looked to the right, that is, to the
west, in the direction in which the train finally came, and
having seen no danger or any train approaching from that
direction, he looked to the left over the shoulder or back of
Mrs. Hayden; that he saw nothing approaching upon the track
from that side; that then something was said about all right,
and that the horse was started. About the time the fore part
of the horse was upon the track he felt the approach of
impending danger, and the horse was struck by the locomotive.
"Did
the plaintiff stop at or about that distance from the track?
You have the evidence before you of several witnesses who
testified that he did not, and Mrs. Hayden also testified
that he did not stop. On the other side you have the positive
evidence of the plaintiff that he did -- that they did stop
before crossing.
"[In
so far as this branch of the case is concerned, if you shall
determine that the conveyance was stopped at that place, that
the plaintiff did look up and down the road, that he did
listen for approaching train, heard none, saw none, heard no
signal and that no signal was given, then he did his duty.]
"It
is contended by the defendant that even though the conveyance
was stopped at that point, say in the neighborhood of fifteen
or eighteen feet from the crossing, that still the plaintiff
is not entitled to recover. That under the evidence in this
case, if the conveyance was stopped at the point indicated,
and that he did look to his right or west along the track,
that he must necessarily have seen the approaching train. You
will remember the calculations, figures and distances given
by the different witnesses where a train could be seen, from
that point, and also the alleged discrepancies and
contradictions. If you shall determine, as a matter of fact,
that the plaintiff did stop, look and listen at the point
indicated, and that there was a plain unobstructed view of an
approaching train for a long distance, then, as stated by the
Supreme Court, he cannot deny that he saw what his eyes must
have seen if he had looked, or what his ears must have heard
if he listened."
Defendant's
points were among others as follows:
"5.
It was the imperative duty of the plaintiff to stop, look and
listen at the point at which he could see and hear, before
crossing the track, and if the jury believe...
