Owens v. Pennsylvania R. Co.

• Decision Date: 16 October 1889
• Citation: 41 F. 187
• Parties: OWENS v. PENNSYLVANIA R. CO.
• Court: U.S. District Court — Eastern District of Pennsylvania

41 F. 187

OWENS v. PENNSYLVANIA R. CO.

United States Circuit Court, E.D. Pennsylvania.

October 16, 1889

Ladislas Karge, for plaintiff.

Geo Tucker Bispham, for defendant.

McKENNAN J., (charging jury.)

The plaintiff has requested the court to charge the jury as follows:

'(1) That plaintiff was not a trespasser, and has a right to recover if the injury complained of was caused by defendant's negligence.'

That point is affirmed.

'(2) The fact that the accident occurred raises a presumption of defendant's negligence.'

That is denied.

'(3) Although there was no statutory obligation on the part of the defendant to ring a bell upon approaching the crossing in question, they might find it negligence to omit this when running its train across such crossing at a time when the view of the train was so far obstructed by the cars which had been permitted to remain upon the side tracks as to render the use of the crossing peculiarly hazardous.'

That point is affirmed.

'(4) If the jury find, from the evidence, that plaintiff was duly careful, and was crossing at the point in question rightfully, any injury to him through the defendant's omission of a reasonable precaution will render the defendant liable in damages.'

That point also is affirmed.

'(5) It is for the jury to determine what notice is reasonable under the circumstances of the crossing in question.'

That also is affirmed.

'(6) If the jury find that the cars were left in such a position near the crossing as to obstruct the view of the track in the direction in which the train was moving, on the day the injury occurred, the plaintiff was excused from looking in that direction.'

That point is denied.

'(7) Plaintiff had the right to presume that the defendant, at the crossing in question, would use more care than ordinarily.'

That point also is denied.

'(8) When, for any reason, there is difficulty in seeing an approaching train, this is a circumstance which demands of the engineer the exercise of increased vigilance.'

That also is denied.

'(9) If the whistle of the engine was not sounded, nor any other usual notice given of the approach of the train, the plaintiff had a right to presume that the track was clear; and unless the jury are satisfied, by affirmative proof, that the plaintiff did not use ordinary care, the defendant is liable for the consequences of plaintiff's injuries.'

That point is affirmed.

'(10) By ordinary care is meant that care a person of common prudence takes of his own concerns, or that degree of care which men of common prudence exercise about their own affairs. In determining what would be ordinary care in a particular case, reference must be had to the circumstances surrounding such case or occurrence.'

That point is affirmed.

'(11) In estimating the damages for a personal injury resulting from the negligence of the defendant, the jury may allow, not only for the direct expenses incurred by the plaintiff, but also for the privation and inconvenience he has been subjected to; for the pain and suffering, bodily and mental, which he has already endured, or is likely to experience; as well as the pecuniary loss he has already sustained, and is likely to sustain during the remainder of his life, from his disabled condition, and his actual permanent loss of earning power.'

That point is affirmed.

'(12) If the plaintiff is entitled to recover, the measure of his recovery is what is denominated 'compensatory damages;' that is, such sum as will compensate him for the injury he has sustained. The elements entering into damages are the following: First, such sum as will compensate him for the expenses he has paid or incurred in effecting his cure, and caring for and nursing him during the period that he was disabled by the injury; second, the value of his time during the period that he was disabled by the injury; third, if the injury has impaired the plaintiff's power to earn money in the future, such sum as will compensate him for such loss of power; fourth, such reasonable sum as the jury shall award him on account of pain and anguish he has suffered by reason of his injury.'

That point is affirmed.

'(13) If the jury find that the defendant had, without objection, permitted those employed at his quarry and the public to cross the track at the point where the injury occurred, though not in itself a public crossing, it owed the duty of reasonable care towards those using the crossing.'

That point is affirmed.

'(14) If the jury find that plaintiff was passing the crossing in question upon an express or implied invitation or inducement of defendant, or by its mere permission, he was rightfully there.'

That point is affirmed.

The defendant has asked me to charge you as follows:

'(1) It is the duty of a person about to cross the tracks of a railway to stop, look, and listen, before attempting to do so, at a point where, without danger to himself, he can have the best view of the track; and, if the jury believe that the plaintiff did not so stop and listen, he was guilty of a contributory negligence, and cannot recover in this action.'

That point is affirmed.

'(2) If the jury believe that the plaintiff could have seen the approaching engine if he had looked, and yet did not do so, or if he did look, and yet did not see the engine, when it was plainly visible, then, in either of such cases, he was guilty of contributory negligence, and the verdict must be for the defendant.'

That point is affirmed.

'(3) The plaintiff, by going on the tracks of the defendant at the point where he was struck, became a trespasser, and was guilty of contributory negligence in so doing, and, in the absence of evidence of any willful or malicious act upon the part of the defendant or its servants causing his injury, cannot recover in this case, and the verdict must be for the defendant.'

That point is denied.

'(4) There is no evidence of negligence on the part of the defendant or its servants, and therefore the verdict must be for the defendant.'

I refuse to give you that instruction.

'(5) Under all the evidence in the case, the verdict of the jury must be for the defendant.'

That point also is refused.

The plaintiff is entitled to recover, if he is entitled to recover at all, upon the basis of the proved negligence of the defendant; that is to say, that the defendant omitted to perform some duty or do something which he ought to have done, or that he did something which he ought not to have done, and that the injury complained of here was the result of such failure to perform a duty. It is not alleged, and it does not appear, that the defendant was culpable in any way as to the speed at which this train was moving at the time the accident happened. The speed was moderate; indeed, slow. The train was approaching a place where it was intending to stop. The engine was reversed, and the speed of the train was constantly diminishing. There is therefore nothing in the movement of the train in that respect in which it can be alleged that the defendant was in any way culpable.

As I understand the position and evidence of the plaintiff, the defendant is alleged to have been culpable in not giving the usual signal of warning, which ought to have been given at a place where any person crossing the road might be exposed to danger. The place at which this injury happened when the plaintiff was attempting to cross the track was not a public crossing; but it was a place, as has been shown, where a number of persons engaged in business upon the road might be called upon to pass from one side of the road to the other. Persons thus passing in the discharge of their business cannot be regarded merely as trespassers. The defendant's engine was coming up to this point, and with a proper degree of speed, carefully and slowly. The question for you to pass upon is, was a reasonable warning given of the approach of the train at that point? The plaintiff and two other witnesses testify that they did not hear any signal given of the approach of the train. The engineer of the train however, testifies...