Kraut v. Frankford & S. P. City Pass. Ry. Co.

• Decision Date: 19 March 1894
• Docket Number: 11
• Citation: 160 Pa. 327,28 A. 783
• Parties: Kraut v. Frankford & Southwark Phila. City Pass. Ry., Appellant
• Court: Pennsylvania Supreme Court

28 A. 783

160 Pa. 327

Kraut v. Frankford & Southwark Phila. City Pass. Ry., Appellant

No. 11

Supreme Court of Pennsylvania

March 19, 1894

Argued January 17, 1894

Appeal, No. 11, Jan. T., 1894, by defendant, from judgment of C.P. No. 1, Phila. Co., Sept. T., 1891, No. 257, on verdict for plaintiff, John George Kraut. Affirmed.

Trespass for personal injuries. Before BREGY, J.

The facts appear by the opinion of the Supreme Court.

At the trial the court admitted in evidence, under objection and exception by defendant, an agreement between the Delaware River Railroad Co. and the city of Philadelphia, dated July 8, 1857; also ordinances of the city of Philadelphia approved July 7, 1857, April 1, 1859, and Oct. 16, 1860; and also the act of June 9, 1857, P.L. 802, all of which related to the duty of defendant to keep the street in repair. [1]

The court refused, under objection on part of the plaintiff, to admit in evidence a contract dated Dec. 5, 1890, between the city of Philadelphia and W. P. McNichol, and the bills for the paving of the work, to be followed by other evidence to show that the paving of the crossing was done properly under said contract, and continued to be in good condition at the time of the accident. [2]

When John Dannenhower, plaintiff's witness, was on the stand he was asked: "Q. In your opinion, from what you saw there, was the condition of that crossing at that place dangerous? A. A dangerous place it is." Objected to objection overruled and exception. [11]

The court admitted, under objection and exception by defendant the American tables of mortality. [12]

The court charged in part as follows:

"[It was the duty of the railroad company to have the streets in good travelable condition.] There is no duty that requires them to be as smooth as a ballroom floor, but the duty upon the railroad company was to keep the streets in good condition and the crossing suitable for the purpose for which it was intended, and in such a condition that an ordinarily careful man could cross it with safety. It was its duty to drive its horses at a rate of speed that would not endanger the lives or limbs of people crossing at the street crossings." . . . .

"[It comes back again to that main dispute in the case: If the holes were there, then, if he was in a position which would require him to step back by reason of this rapid movement of the car, and he stepped into the hole that ought not to have been there, and because of the company's duty to keep the street in travelable condition and because that hole caused him to fall, as he said, and pitch forward, then the company was guilty of negligence, and if that was the negligence that caused the accident he is entitled to recover.]" [10]

Defendant's points were among others as follows:

"1. The evidence on the part of the plaintiff himself shows that he stood between the tracks to wait for a car about to pass him, and that finding that he was standing too near for safety he stepped back to avoid the danger to which he had voluntarily exposed himself, and that in endeavoring to avoid that danger he fell into another, and that the concurrence of the two factors, to wit, his selection of a dangerous standing place, and his subsequent endeavor to get out of it, jointly caused the accident. As his own negligence, therefore, contributed to the accident, he cannot recover." Refused. [3]

"2. The plaintiff, in his own evidence, discloses the fact of negligence on his part in unnecessarily placing himself in a position of danger voluntarily, and that in his endeavor to avoid the result of this voluntary and unnecessary exposure he fell under the car. The accident was, therefore, due to his own negligence, and he cannot recover." Refused. [4]

"3. If the plaintiff voluntarily and unnecessarily stood in a place too near an approaching car to be safe, and in the effort to escape the danger thus incurred stepped into a hole or other defect in the pavement, and was thereby thrown under the car, he was guilty of contributory negligence, and cannot recover." Refused. [5]

"4. The defect in the pavement, if any existed, was not the proximate cause of the accident, but only a concurrent cause; and as the plaintiff's negligence, according to his own testimony, concurred with the alleged defect in causing the accident, he cannot recover." Refused. [6]

"5. No negligence has been shown on the part of the railroad company, and your verdict must be for the defendant." Refused. [7]

6. Request for binding instructions. Refused. [8]

Verdict for plaintiff for $25,000. One half of this being remitted, judgment was entered for $12,500.

Errors assigned were (1, 2, 11, 12) rulings on evidence; (3-10) instructions; quoting instructions and substance of offers, but not quoting bills of exceptions or evidence, except as stated above.

The judgment is affirmed.

Gavin W. Hart, Wm. Henry Lex with him, for appellant. -- The defective condition of the street was not a factor in causing the injury: Chartiers Tp. v. Phillips, 122 Pa. 601; Herr v. Lebanon, 149 Pa. 222; Schaeffer v. Jackson Township, 150 Pa. 145; Kieffer v. Hummelstown Boro., 151 Pa. 304; McCauley v. Logan, 152 Pa. 202.

It may be asserted that plaintiff in avoiding one danger fell into another. The answer to this is that the danger he avoided was one caused by his own act, and the danger he fell into became such only when combined with his negligent act. In short, the danger he avoided was not caused by defendant: R.R. v. Werner, 89 Pa. 59; Aiken v. R.R., 130 Pa. 380.

When plaintiff's own evidence discloses contributory negligence he cannot recover: Bentley v. Penna. Canal Co., 66 Pa. 30; Nagle v. R.R., 88 Pa. 35; Fischer v. Monongahela City, 111 Pa. 9; Barnes v. Sowden, 119 Pa. 53; Cadow v. R.R., 120 Pa. 559; Kohler v. R.R., 135 Pa. 346; Lynch v. Erie, 151 Pa. 380; Baker v. Gas Co., 157 Pa. 593.

The obvious danger did not become an active factor until plaintiff, by his own voluntary act, caused it to be such. What vigilance will disclose is presumed to have been seen: Harris v. Ice Co., 153 Pa. 278; Robb v. Connellsville Borough, 137 Pa. 42.

Where the facts are undisputed and the intervening agency is manifest, it is not error for the court to withhold the evidence from the jury: Hoag v. R.R., 85 Pa. 293; West Mahanoy v. Watson, 112 Pa. 575; West Mahanoy v. Watson, 116 Pa. 344; Bunting v. Hogsett, 139 Pa. 363; Herr v. Lebanon, 149 Pa. 226.

The evidence of an expert on danger is inadmissible: Lineoski v. Coal Co., 157 Pa. 153.

As no death occurred, it was error to admit in evidence the American Tables of Mortality: Shippen's Ap., 80 Pa. 391; Rummele v. Heating Co., 16 A. R. 78; Steinbrunner v. R.R., 146 Pa. 504; McCue v. Knoxville, 146 Pa. 580.

Mayer Sulzberger, O. Percy Bright and Walton Pennewill with him, for appellee. -- Plaintiff was not guilty of contributory negligence: 2 Thompson, Negligence, p. 1238; Beach on Con. Neg., 2d ed. § 447; R.R. v. McElwee, 67 Pa. 311; Baker v. Fehr, 97 Pa. 70. There is no fixed standard of duty which a pedestrian at a street railway crossing is bound to observe, except that of looking: Carson v. Ry., 147 Pa. 219; Gibbons v. Ry., 155 Pa. 279.

Where inferences of fact are to be drawn from the testimony it is the exclusive province of the jury to determine what the facts are and to draw the just inferences: Fisher v. Ry., 131 Pa. 292; Baker v. Fehr, 97 Pa. 70; Baker v. Gas Co., 157 Pa. 593; Girard College Pass. Co. v. Middleton, 3 W.N. 486.

A party injured is not guilty of negligence in not anticipating negligence on the part of another: Reeves v. R.R., 30 Pa. 454. A party is not bound to guard against the want of ordinary care on the part of another; he has a right to presume that ordinary care will be used: Brown v. Lynn, 31 Pa. 510; Beach on Con. Neg. § 38; Penna. R.R. v. Ogier, 35 Pa. 60.

The injury of plaintiff was the natural and probable result of defendant's negligence in this respect, for it was exactly what the company was bound to expect would happen in consequence of its negligence: Burrell Township v. Uncapher, 117 Pa. 353.

Ordinances may be given in evidence: R.R. v. Ervin, 89 Pa. 71; McNerney v. Reading City, 150 Pa. 611; Penna. R.R. v. Lewis, 1 W.N. 550; R.R. v. James, 1 W.N. 68.

It is a general rule of law that a man is responsible for the natural and probable consequences of his act, and for these consequences only so far as they are natural and proximate, and such as may on this account be foreseen by ordinary forecast. An act is the proximate cause of an event, when in the natural order of things and under the circumstances it would necessarily produce that event: Fairbanks v. Kerr, 70 Pa. 86; Hoag v. R.R., 85 Pa. 293; Pass. Co. v. Boudrou, 92 Pa. 475; 2 Thompson on Neg., 1st ed., page 1173; Brown v. Lynn, 31 Pa. 510; Gray v. Scott, 66 Pa. 345.

The question of proximate cause was properly submitted to the jury: 2 Thompson on Neg., p. 1240; Catawissa R.R. v. Armstrong, 52 Pa. 282; North Penna. R.R. v. Heileman, 49 Pa. 60; Hoag v. R.R., 85 Pa. 293.

The ordinary speed of a street car ought to be checked at every crossing, especially after dark, and the driver should be looking ahead and never suffer his attention to be diverted: Ry. v. Mulhair, 6 W.N. 508; Ry. v. Walling, 97 Pa. 62; Reeves v. R.R., 30 Pa. 454.

Defendant was bound to keep its tracks in repair: Frankford & Southwark Pass. Ry. v. City, 43 Leg. Int. 336.

The mere omission to say what might have been properly said is no just ground of complaint by a party who submitted no points to the court: Reeves v. R.R., 30 Pa. 454; Com. v. Zappe, 153 Pa. 498.

Where an obstruction is of long duration, constructive notice is presumed: McLaughlin v. Corry, 77 Pa. 109; Norristown v. Moyer, 67 Pa. 355; ...