Pennsylvania Railroad Co. v. Werner

• Decision Date: 03 March 1879
• Parties: Pennsylvania Railroad Company <I>versus</I> Werner.
• Court: Pennsylvania Supreme Court

89 Pa. 59

Pennsylvania Railroad Company versus Werner.

Supreme Court of Pennsylvania.

February 5, 1879.

March 3, 1879.

February 5th 1879.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, WOODWARD, TRUNKEY and STERRETT, JJ.

Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1879, No. 129.

COPYRIGHT MATERIAL OMITTED

Chapman Biddle, for plaintiff in error.—The legal obligation resting upon persons intending to cross the tracks of railroads at highway intersections may be considered as settled in Pennsylvania by numerous and uniform decisions. As thus determined the duty is imperative to stop, look and listen: North Pennsylvania Railroad v. Heileman, 13 Wright 60; Railroad v. Coyle, 5 P. F. Smith 396; Pittsburgh, Fort Wayne & Chicago Railway v. Dunn, 6 P. F. Smith 280; Railroad v. Beale, 23 Id. 509; Railroad v. Weber, 26 Id. 157; Gerety v. Philadelphia, Wilmington and Baltimore Railroad 31 Id. 274; Central Railroad of New Jersey v. Feller, 3 Norris 226; Schultz v. Railroad, 6 W. N. C. 69; Nagle v. The Allegheny Valley Railroad Co., 7 Norris 35. The fact that the view of the west track was obstructed by the passing coal train made the duty of stopping the more imperative: Railroad Co. v. Beale, 23 P. F. Smith 509. If Werner's hearing was in any way impaired he had a greater reason for caution in advancing: Central Railroad of New Jersey v. Feller, 3 Norris 229.

S. W. Reeves and J. Howard Gendell, for defendant in error.— Werner certainly had "stopped," and in the absence of all evidence on the subject, we must assume that he "looked and listened," for it seems to be well settled that the love of life and the instinct of its preservation are quite sufficient to stand for proof that the deceased took the proper care, until the contrary appears: Railroad v. Rowan, 16 P. F. Smith 399; Railroad v. Hagan, 11 Wright 244; Railroad v. Hall, 11 P. F. Smith 361; Allen v. Willard, 7 Id. 374; and that therefore it is not necessary to prove affirmatively that a person injured when crossing a railroad on a public highway had stopped and looked: Pennsylvania Railroad v. Weber, 22 P. F. Smith 27; Weiss v. Pennsylvania Railroad, 29 Id. 387; Pennsylvania Railroad v. Weiss, 6 Norris 447. Even, although from the uncontradicted evidence it might be inferred that if the traveller had stopped and looked and listened he would have seen the approaching train, it is for the jury to determine the fact: Pennsylvania Railroad v. Weber, 26 P. F. Smith 157; Pennsylvania Railroad v. Weiss, 6 Norris 447. Negligence, as already stated, is the absence of the care which persons of ordinary prudence would exercise under the same circumstances, and we submit that precedent, as well as common sense, teaches us that where a company by its own wrong places a person in a position of danger, he is not negligent if he fails to exercise the coolness and self-possession of a bystander: Johnson v. Railroad, 20 P. F. Smith 357; Delaware, Lackawanna and Western Railroad Co v. Smith, 28 Leg. Int. 101; Warner v. Railroad Co., 6 Phila. R. 537.

Mr. Justice STERRETT delivered the opinion of the court, March 3d 1879.

This is a close case, lying fast by the dividing line between questions of law and of fact. Testimony, tending to prove that the deceased, August Werner, lost his life by the negligence and improper conduct of the employees of the railroad company, was introduced, and, without objection, submitted to the jury, who, by their verdict, have settled that question in favor of the plaintiffs below. It must therefore be assumed as a fact that the company was guilty of negligence. In the court below the defence was rested mainly on the ground of concurring negligence on the part of the deceased; and, as to that, the contention now is that under the testimony it was a question of law for the court, and not one of fact for the jury. It was not raised, as is sometimes done, on a motion for a nonsuit, grounded solely on the plaintiffs' testimony, but by a request for binding instructions after the testimony on both sides was closed. The five points submitted by the learned counsel for the company are each based on the assumption that acts of the deceased, constituting contributory negligence, were established beyond reasonable doubt, and the court was asked to say, as matter of law, that the plaintiffs could not recover.

The learned judge who presided at the trial, after fairly presenting the questions of fact raised by the testimony, submitted them to the jury in a very clear and able charge, in which he affirmed the defendants' points, provided the jury found "the facts as therein assumed," but declined to affirm them as matters of law. In the course of his charge, after calling the attention of the jury to the testimony and stating in the most pointed and emphatic terms the duty of the deceased, he proceeded to say, "If, therefore, you are satisfied under the testimony, that the deceased did not perform his full legal duty of stopping, looking and listening before he crossed; but, if you think, as described by one of the witnesses for the defence, the moment the caboose car of the coal train got beyond his crossing, he darted across without looking up or down the road, that was negligence on his part, and however unfortunate the result the railroad company cannot be made to pay for it."

There can be no question as to the fairness of the charge, and its correctness also, unless it be in the refusal to rule the case as a question of law and thus take it from the jury.

When the facts are admitted, or so clearly and conclusively proved as to admit of no reasonable doubt, it is the duty of the court to declare the law applicable to them; but, when material facts are disputed, or inferences of fact are to be drawn from the testimony, it is the exclusive province of...