Newman v. Delaware, Lackawanna & Western Railroad Co.

• Decision Date: 13 October 1902
• Docket Number: 51
• Parties: Newman, Appellant, v. Delaware, Lackawanna & Western Railroad Company
• Court: Pennsylvania Supreme Court

53 A. 345

203 Pa. 530

Newman, Appellant, v. Delaware, Lackawanna & Western Railroad Company

No. 51

Supreme Court of Pennsylvania

October 13, 1902

Argued April 16, 1902

Appeal, No. 51, Jan. T., 1902, by plaintiff, from order of C.P. Luzerne Co., Oct. T., 1898, No. 14, refusing to take off nonsuit in case of Henry C. Newman v. The Delaware Lackawanna & Western Railroad Company. Reversed.

Trespass to recover damages for personal injuries. Before FERRIS, J.

The facts are stated in the opinion of the Supreme Court.

Error assigned was order refusing to take off nonsuit.

The second assignment of error is sustained and the judgment is reversed with a venire de novo.

Paul J Sherwood, for appellant. -- The case was for the jury: Bard v. Phila. & Reading Ry. Co., 199 Pa. 94; Quigley v. Del. & Hudson Canal Co., 142 Pa. 388; McNeal v. Pittsburg, etc., Ry. Co., 131 Pa. 184; Newhard v. Penna. R.R. Co., 153 Pa. 417; Penna. R.R. Co. v. Hurst, 110 Pa. 226; Penna. R.R. Co. v. Barnett, 59 Pa. 259; McGrew v. Stone, 53 Pa. 436.

Andrew H. McClintock and Henry W. Palmer, with them Arthur Hillman, for appellee. -- The nonsuit was properly entered: Myers v. B. & O.R.R. Co., 150 Pa. 386; Marland v. Pittsburg, etc., R.R. Co., 123 Pa. 487; Derk v. Northern Central Ry. Co., 164 Pa. 243; Plummer v. N.Y., etc., R.R. Co., 168 Pa. 62; Gangawer v. P. & R.R.R. Co., 168 Pa. 265; Gleim v. Harris, 181 Pa. 387; Sullivan v. N.Y. etc., R.R. Co., 175 Pa. 361; Wojochoski v. Cent. R.R. Co., 10 Pa.Super. 469; Holden v. Penna. R.R. Co., 169 Pa. 1; Fox v. Penna R.R. Co., 195 Pa. 538; Kern v. Second Avenue Traction Co., 194 Pa. 75.

Before McCOLLUM, C.J., MITCHELL, DEAN, BROWN and MESTREZAT, JJ

OPINION

MR. JUSTICE MESTREZAT:

About eight o'clock in the morning of February 17, 1898, Henry C. Newman, the plaintiff, was driving one horse hitched to a buckboard along a country highway in Lackawanna county and approached a grade crossing of the defendant's double-track railroad. The general direction of the highway was north and south, and the plaintiff was driving south. An automatic electric signal bell stood on the left or east side of the highway, and from fifteen to thirty feet north of the railroad. Painted upon the post of this signal appliance in large letters were the words: "Danger while the bell rings." The purpose of this bell was to give notice of a train approaching the crossing from either direction. If in working order, it began to ring when the locomotive was 2,000 feet from the crossing and continued until the crossing was passed. The plaintiff stopped about sixty or seventy feet from the crossing and looked and listened for a train. At this point he had an unobstructed view for a long distance to the west, but to the east or his left the view was obstructed by a hill which prevented him from seeing the train or engine going west on the west-bound track. The view of the railroad track to the east continues to be obstructed until the person approaching the crossing is within thirty or thirty-five feet of the crossing, and his horse is fifteen or twenty feet from the railroad. On the right or west side of the highway there is a deep ravine, and on that side of the road for about fifty feet north of the railroad, there is no fence or wall to prevent a frightened or unruly horse from backing a vehicle over the precipice. Under the testimony the jury would have been warranted in finding that this was a dangerous place for a traveler to stop his team to listen for an approaching train. During the time the plaintiff's team was stopped, a coal train passed the crossing going west. After it had gone a few hundred feet, and hearing no warning of an approaching train, Newman drove towards the crossing. When his horse was about fifteen or twenty feet from the west-bound track and he and his wagon were opposite the signal bell, he again attempted to stop the horse, but being frightened by the shrill, loud whistle of a light passenger engine approaching from the east at a speed of from fifteen to eighteen miles an hour, the animal jumped to the right toward the embankment and, in the language of the plaintiff, "I pulled her back into the road and she sprung right across the track, and when she came upon the track this engine going west struck her and killed her." The automatic bell was not ringing and no other signal was given of the approaching locomotive.

The learned trial judge granted a nonsuit on the ground that the plaintiff was guilty of contributory negligence. In his opinion refusing to take off the nonsuit he says: "We think the plaintiff was clearly guilty of contributory negligence, not in pulling his horse back from the bank, for he was in a position of sudden peril, but in voluntarily or carelessly placing himself in that position, it being one of obvious danger. His duty was, not to begin to draw up his horse when the latter was within fifteen or twenty feet of the track, but to begin that operation soon enough to come to a full stop as soon as or before his horse's head was eighteen feet from the track. It was his duty to stop. Had he done so, this accident would not have happened." It, therefore, appears that the trial judge held, as a matter of law, the plaintiff was guilty of negligence in not stopping the second time and at another point nearer the crossing, where he would have had a view of the tracks to the east.

We are of opinion that the court erred in not submitting the question of the plaintiff's negligence to the jury. In his charge the trial judge says: "The evidence is undisputed that the plaintiff stopped at a point where it was usual for travelers to stop, variously estimated at from sixty to 100 feet away from the crossing." And in his opinion, he also says: "As he (plaintiff) approached the railroad, he stopped at a point where it was customary for travelers to stop, and variously estimated as being from sixty to one hundred feet from the railroad, the plaintiff's own estimate being sixty or seventy feet." As conceded by the court, the testimony conclusively shows that the plaintiff stopped at the usual and customary place at which persons stop when approaching the crossing. This of itself, prevented the court from deciding as a matter of law that the plaintiff was guilty of negligence: Cookson v. Pittsburg, etc., Railway Company, 179 Pa. 184. I...