North Pennsylvania Railroad Co. v. Heileman

• Citation: 49 Pa. 60
• Parties: The North Pennsylvania Railroad Company <I>versus</I> Heileman.
• Decision Date: 16 February 1865
• Court: United States State Supreme Court of Pennsylvania

Page 60

49 Pa. 60

The North Pennsylvania Railroad Company versus Heileman.

Supreme Court of Pennsylvania.

February 16, 1865.

ERROR to the District Court of Philadelphia.

COPYRIGHT MATERIAL OMITTED

Morton P. Henry, for plaintiffs in error.

George H. Earle and R. J. White, for defendant in error.

The opinion of the court was delivered, February 16th 1865, by STRONG, J.

The plaintiff sued for an injury to himself and his property, caused, as he alleged, by the negligence of the defendants. It was the result of a collision. The accident occurred at the intersection of the defendants' railroad with Dauphin street, along which the plaintiff was driving a horse attached to a covered wagon. At the crossing a regular passenger train on the railroad came into contact with the horse and wagon, in consequence, as was averred, of the carelessness of the defendants' agents. Whether there was such carelessness was submitted to the jury, and of the mode of submission there is no complaint. But the contest in the court below involved also the inquiry how far, if at all, the negligent conduct of the plaintiff had contributed to the hurt sustained by him. There was evidence that as he approached the crossing of the railroad he was seated far back in his covered wagon with the curtains down (closed), that the curtains were tight, though there was a small glass window on each side, and that a person coming down Dauphin street in the direction in which he came, could have seen the railroad track had he looked out, for from seventy to seventy-five yards from its intersection with Dauphin street. Such evidence justified the defendants in proposing their points to the court, the first of which was as follows: "That it is the duty of a traveller approaching a railroad crossing to look along the line of the railroad and see if any train is coming; and if the jury believe the plaintiff failed to take such a precaution, he was guilty of negligence and cannot recover in this suit." This point the court answered by saying: "This is one of the reasonable precautions a man is bound to use, and its absence is evidence of neglect." This was not a full answer to the point. The court conceded that looking out for the approach of a train is a duty, when a traveller is about to cross a railroad track, but instead of charging the jury that failure to look out is negligence, instructed them that it was evidence of negligence. This was not all the defendants asked nor all they were entitled to have. Absence of such a precaution was more than evidence of negligence. It was negligence itself, and it was such as may have...