Pennsylvania R. Co. v. Miller

• Decision Date: 07 February 1900
• Docket Number: 26.
• Citation: 99 F. 529
• Parties: PENNSYLVANIA R. CO. v. MILLER.
• Court: U.S. Court of Appeals — Third Circuit

99 F. 529

PENNSYLVANIA R. CO. v. MILLER.

No. 26.

United States Court of Appeals, Third Circuit.

February 7, 1900

Alan H Strong, for plaintiff in error.

Erwin E. Marshall, for defendant in error.

Before ACHESON and DALLAS, Circuit Judges, and KIRKPATRICK, District judge.

KIRKPATRICK District Judge.

The writ of error in this cause brings here for review the record of a suit in which Adolph Miller, the plaintiff below and the defendant in error, recovered a judgment against the Pennsylvania Railroad Company, the defendant below and the plaintiff in error, for personal injuries sustained by him while crossing the tracks of the said railroad company in the city of Trenton. Early in the morning of January 10, 1897 while it was still dark, Miller was driving along Broad street, a public highway in the said city, at a point where it crosses said railroad's tracks. It was about the hour of 5 o'clock in the morning. The weather was foggy, and a slight sleet of snow and rain was falling. According to Miller's testimony, he slowed his horse as he approached the tracks, almost stopping. He listened, and he looked both ways. He heard no signals, and failed to see any approaching train. He therefore proceeded on his way, and when the horse was actually upon the railroad tracks he saw the headlight of an engine coming rapidly from the south. It was too late to turn back. He hurried forward, but the rear wheel overturned whereby he was injured in the back and leg. There was evidence to show that the crossing was one of more than ordinary danger; that the view of the track southwardly, to one approaching it from the eastward, as was Miller, was obstructed by a fence, by telegraph and telephone poles, and by buildings erected by the railroad company. It was contended on the part of the railroad company that the view of the tracks was clear for a long distance to the southward, and that every one who looked could not fail to see an approaching train in ample time to avoid collision. They therefore asked the court to direct a verdict for the defendant upon the ground that the plaintiff had been guilty of contributory negligence, because, they said, if he had looked he could have seen the approaching train, and therefore that he did not see it, as he said, is conclusive evidence that he did not look. This, it seems to us, was matter of argument to be addressed to the jury, and to be by them determined from the evidence in the cause. Whether the plaintiff below could have seen the approaching train in time to avoid the collision was a question of fact, dependent upon a variety of circumstances, and upon inferences to be drawn from the testimony produced, with regard to the speed at which the train was approaching the crossing, the condition of the atmosphere, the glare of the electric lights, and the nature of the alleged obstructions to the view. True, it is that there was testimony tending to show that in the daytime, under favorable circumstances, a traveler upon the highway could see an approaching train for a considerable distance; but, as was said in Massoth v. Canal Co., 64 N.Y. 54:

'It does not necessarily follow from the fact that a skilled engineer can demonstrate that, from a given point in a highway, the track of a railway is visible any distance, that an individual in charge of a team approaching the track is guilty of negligence because he does not from the same point see a train approaching at great speed in time to avoid collision.'

Upon the evidence disclosed in the record, we are of the opinion that the learned judge committed no error in refusing to direct a verdict for the defendant.

Of the remaining assignments of error, the second, sixth, and seventh alone were relied upon for reversal of the judgment by counsel for the plaintiff in error, either in the brief presented, or upon the oral argument before the court. They relate to the refusal of the learned judge to charge as requested, and respecting the charge of the learned judge in respect to the subject-matter of the request. They are as follows, viz:

'Second Exception. That the said court refused to charge the jury, as duly requested on behalf of said defendant, that the defendant was under no obligation at the time of the injury to the plaintiff to do anything more than to give the usual statutory signal

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