Lake Shore & M. S. Ry. Co. v. Franz

• Decision Date: 28 June 1889
• Docket Number: 414
• Parties: LAKE SHORE & M.S. RY. CO. v. ALFRED FRANTZ
• Court: Pennsylvania Supreme Court

18 A. 22

127 Pa. 297

LAKE SHORE & M.S. RY. CO. v. ALFRED FRANTZ

No. 414

Supreme Court of Pennsylvania

June 28, 1889

Argued May 3, 1889 [Copyrighted Material Omitted]

ERROR TO THE COURT OF COMMON PLEAS OF ERIE COUNTY.

No. 414 January Term 1889, Sup. Ct.; court below, No. 121 May Term 1885, C.P.

On March 18, 1885, Albert Frantz brought case against the Lake Shore & Michigan Southern Railway Company, to recover damages for personal injuries alleged to have been caused by the negligence of defendant company's employees. Issue.

At the trial on September 21, 1888, the facts shown by the plaintiff's testimony were in substance as follows:

Parade street, in the city of Erie, runs north and south, and is crossed at right angles and at grade by the tracks of the defendant company, to wit: two main and three side tracks running east and west. Immediately south of the last track of the defendant, are the tracks of the Philadelphia & Erie Railroad, two or three in number. There is a space of seven feet and two inches between the south track of the defendant company and the north track of the P. & E. Railroad.

Safety-gates were maintained at the street-crossing, and at this point the tracks of both railroads are straight for a long distance. There was also a city ordinance in force, enacted June 24 1873, prohibiting the running of railroad trains through the city at a speed greater than six miles an hour, and requiring companies to maintain flagmen at crossings.

About 7 A.M., November 21, 1884, Albert Frantz was riding with one Decknor who was driving north on Parade street in a two horse wagon. The safety-gates were raised, and the watchman was absent. When they approached the tracks of the P. & E.R. Co., they stopped the wagon and looked up and down and listened, to discover if it was safe to proceed. Two of the defendant company's side tracks were south of its main track, and at this time both of them were occupied in both directions with box cars standing upon them, and one of the box cars, on the siding next the main track, extended over the west sidewalk and into the street. These box cars, it was claimed, obstructed the view of the road-bed to the west of the crossing. The occupants of the wagon could see, however, that no train was approaching in that direction.

While the wagon was stopped and the plaintiff and his companion were looking and listening, a hand-car passed east on one of defendant's main tracks. Not seeing or hearing anything more, Decknor proceeded to drive across, the horses walking, and just as the team got upon defendant's south main track, another hand-car, also passing east, came rapidly and silently on, running at the rate of ten miles an hour, as was claimed, and dashed against the team. The horses jerked the wagon over the hand-car, whereby the driver was thrown out and the wagon upset. The team ran away, and the plaintiff was caught under the wagon box and dragged for some distance, receiving serious and permanent injuries.

The plaintiff having rested, the defendant moved that a judgment of compulsory nonsuit be entered.

By the court: I think this matter should go to the jury. The plaintiff himself testified that they stopped and looked and listened before going across the track, and the driver to the same thing, and that there were cars which obstructed the view until they got close to the track. The motion for a compulsory nonsuit is overruled; exception.

The testimony on the part of the defendant was to the effect that there were eight employees upon the second hand-car, the foreman and seven assistants; they testified substantially that they were running at the rate of about five miles an hour, when just before they reached Parade street they saw the horses and wagon coming at a smart trot; that they immediately gave what warning they could by shouting to the plaintiff and his companion in the wagon, put on the brakes and did their utmost to check the speed of the car and to stop it, and that when the car struck the horses it was going very slowly, almost stopped.

The court, GUNNISON, P.J., charged the jury and answered the points presented:

The first question for you to decide is, was there negligence on the part of the railroad company or its employees? Because if there was not, the plaintiff is not entitled to recover. His right to recover depends on the accident having been occasioned by the negligence of the railroad company or its employees.

It has been shown in evidence to you that there is an ordinance of the city of Erie which requires the railroad companies, at this street, to erect and maintain safety-gates. These gates should be operated and watched at all times when there is much travel across the tracks on the street. At such times, a neglect to operate the gates and lower them across the street when there are cars approaching, would be negligence on the part of the railroad company. Whether it was negligence in not having the gates so operated, at this time of day, depends on how much travel there was ordinarily across the tracks at that time. And that is a question for you to decide. I cannot say, that, as a matter of law, it was negligence in them not to have the gates in operation at that time. [If at that time there was a considerable amount of travel, then the fact that the gates were up would be notice to the plaintiff that there was no danger in crossing the track; it would be an invitation to him to cross the track. At the same time it would not excuse him from exercising due care in approaching and crossing the track and finding out whether or not there were approaching cars. Because the fact, if it is a fact, that the railroad company were negligent, would not excuse him for being negligent. He must use proper care in crossing, irrespective of the fact whether or not the railroad company used care.]

It is also the duty of the employees of the company to give some warning of their approach, riding on a car, or of other employees of the company to give some warning of their approach, whether by lowering the gates, or by a watchman, or by crying out. The eight men on this car, or such as testify, tell you that they did halloo at the tops of their voices. The plaintiff tells you that he heard nothing of the kind, and Mr. Decknor says he heard nothing of the kind. And now it is for you to say whether they did give such warning, and whether that warning was sufficient to excuse them from any negligence, or relieve them from the imputation of negligence.

If you find that the employees of the railroad were guilty of negligence, it is your duty to inquire whether or not the plaintiff was negligent; for if he was guilty of negligence which contributed to the accident, he cannot recover, no matter how negligent the employees of the railroad company were. It was the duty of the plaintiff to use care in approaching the tracks, to stop and look and listen for approaching cars. It was also his duty to keep such lookout as was reasonable, while crossing the track, and avoid a car if he could, even after he had started to cross; and it was his duty that the horses should be driven in a careful and cautious manner. The plaintiff and the driver both say they crossed on a walk. The witnesses on the other side say they crossed on a smart trot, and that neither the plaintiff nor the driver was looking toward the west, and that they paid no attention to the warning given them by those on the car. These are circumstances for you to consider in determining whether or not the plaintiff was himself guilty of negligence.

If you find for the plaintiff on this point, and find that the railroad company were negligent, and that this accident resulted from their negligence, and that the plaintiff was guilty of no contributory negligence, it would be your duty to fix the amount of damages. In doing this you should take into consideration the expense of the plaintiff's sickness, although I think there has been no evidence given of the amount paid for medical attendance, etc. You do not know what that was. You should take into consideration the loss of wages he has suffered and will suffer during his life in consequence of this injury. Upon that point you have the testimony of witnesses who tell you how much he earned before the accident, and also the testimony as to how much he has been able to earn since the accident, and as to his disability to work now. In considering the amount, it is your duty to consider the probability of his life. Tables of mortality have been shown to you which show that at the age of 23, when he was injured, the probability of life was 40 years. It is claimed by the defendant that although the plaintiff was injured at the time of this accident, yet his present condition is not wholly the result of that injury but partially the result of the other misfortune which he has had; this hunch on his back. And the testimony of the physicians as to whether or not this condition was produced by the injury or the hunch, is conflicting. You have only the right, in considering the damages you should award him, if anything, to consider the disability that resulted from this injury. If any part of the disability resulted from the other misfortune that he has, you cannot take that into consideration in fixing the damages. The defendant is only liable for the injury caused by its negligence, and for no disability caused by other causes. [You have also the right, in estimating the damages, to consider the pain and suffering that he has undergone and may undergo in the future.] Take all these matters into consideration, and I need not remind you that it would be improper in considering this case, to be influenced by any consideration of sympathy for the plaintiff or prejudice...