McKee v. Bidwell

• Decision Date: 10 November 1873
• Citation: 74 Pa. 218
• Parties: McKee <I>versus</I> Bidwell.
• Court: Pennsylvania Supreme Court

Page 218

74 Pa. 218

McKee versus Bidwell.

Supreme Court of Pennsylvania.

October 9, 1873.

November 10, 1873.

October 9th 1873.

Before READ, C. J., AGNEW, SHARSWOOD, WILLIAMS and MERCUR, JJ.

Error to the Court of Common Pleas of Allegheny county: Of October and November Term 1872, No. 139.

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J. H. Hampton (with whom was J. Dalzell), for plaintiff in error.—In cases of controverted facts, whose existence or not may be presumed to affect the mind, the question of negligence is for the jury: Pennsylvania Railroad v. Ogier, 11 Casey 71; Reeves v. Delaware, Lackawanna and Western Railroad, 6 Id. 454; Pennsylvania Railroad v. Zebe, 9 Id. 318; North Pennsylvania Railroad v. Heileman, 13 Wright 60; Pittsburg and Connellsville Railroad v. McClurg, 6 P. F. Smith 297; Pennsylvania Railroad v. Barnett, 9 Id.; Johnson v. Bruner, 11 Id. 58; Kay v. Pennsylvania Railroad Co., 15 Id. 273. If an owner of property allows others a use of it that tends to produce a belief that the use will not be objected to, he must exercise his rights so as not to mislead others to their injury: Sherman and Redfield on Negligence, § 11; Barrett v. Railway Company, 1 Foster & Finlason 361; Hepburn v. McDowell, 17 S. & R. 384; Indermaur v. Dames, 2 Law Rep. 313. The evidence rejected was admissible: Pennsylvania Railroad v. Henderson, 1 P. F. Smith 315; West Chester and Philadelphia Railroad v. McElwee, 17 Id. 311.

W. S. Purviance (with whom was S. A. Purviance), for defendant in error.—The facts here were not controverted. It was for the court to determine as to negligence: Catawissa Railroad v. Armstrong, 2 P. F. Smith 286; Pittsburg and Connellsville Railroad v. McClurg, 6 Id. 297. If the plaintiff could see his way, it was his own negligence, if he could not he should not have gone on without a light: 1 Hurlst. & C. 633; Waters v. Wing, 9 P. F. Smith 211.

The opinion of the court was delivered, November 10th 1873, by MERCUR, J.

It is well settled that in a case of undoubted evidence of clear negligence, it is the duty of the court to pronounce it such as matter of law: Pennsylvania Railroad Co. v. Ogier, 11 Casey 60; Catawissa Railroad Co. v. Armstrong, 2 P. F. Smith 282; Pittsburg and Connellsville Railroad Co. v. McClurg, 6 Id. 294. If, however, there is no doubt as to the acts committed, yet if there be substantial doubts as to the inferences to be drawn from these acts, they should be submitted to the jury: Pennsylvania Railroad Co. v. Barnett, 9 P. F. Smith 259; Johnson v. Bruner, 11 Id. 58.

What is and what is not negligence in a particular case, is generally a question for the jury, and not for the court. This arises from the fact that the question of ordinary and reasonable care is generally involved. The degree of care required is changed by the circumstances of the case. Some circumstances require a higher and some a lesser degree of care. Hence generally negligence is a mixed question of law and fact. Under proper instructions it should usually be submitted to the jury, to find whether proper care has been exercised under the particular circumstances.

The plaintiff was in the employ of Haney & Co., whose business was to convey goods from the railroad depots to the merchants in the city of Pittsburg, to whom they were consigned. They had, upon several previous occasions, delivered goods to the defendant in the yard and upon the same platform where the goods were delivered at the time of the injury. Henry Perry, who was in company with the plaintiff, and driving the horses, testified that he had delivered goods there two or three times before the injury, and that "this time the way was open into the yard." William Wilson and Charles Turner, both employees of Haney & Co., each testified to having delivered goods to the defendant upon the same platform. Wilson swears: "I got my book signed after I took them off the dray. I always went in the building to the office. The opening stands to the right of the large door. There is a door opening from office to wareroom. This is the only entrance I ever got in. The office is probably twenty-five or thirty feet from the large door. Sometimes the book was signed in the office when I went in, and sometimes was signed at the platform outside. No person ever did admonish or warn me not to come in that way. The person who came out of the office to receipt the book came through the building the same way that I went in."

Turner swears that he went through the building to the office to have the receipt signed, and "was never notified not to go into office through the building."

Henry N. Breed, an employee of the defendant, testified that the door at platform leading into the building "was as much a thoroughfare as any door about the building." Subsequently he explained, saying: "I meant by a thoroughfare that it was used by the men employed about the building as much...