Pennsylvania Railroad Co. v. Barnett

• Decision Date: 06 July 1869
• Citation: 59 Pa. 259
• Parties: The Pennsylvania Railroad Co. <I>versus</I> Barnett.
• Court: Pennsylvania Supreme Court

Page 259

59 Pa. 259

The Pennsylvania Railroad Co. versus Barnett.

Supreme Court of Pennsylvania.

October 27, 1868.

July 6, 1869.

October 27th 1868.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the Court of Common Pleas of Westmoreland county: No. 78, to October and November Term 1867.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

H. D. Foster, for plaintiffs in error, cited 2 Hilliard on Torts; Cary v. Utica and Sch. Railroad, 23 Barb. 644; Moshier v. Same, 8 Id. 427; Bordentown v. Camden, 2 Id. 314.

H. P. Laird, for defendant in error. No paper-book on this side was received by the reporter.

The opinion of the court was delivered, July 6th 1869, by WILLIAMS, J.

This was an action brought by the plaintiff below to recover damages for an injury alleged to have been occasioned by the negligence of the Pennsylvania Railroad Company in not giving notice by an alarm-whistle or other signal of the approach of its passenger-train to the crossing where the accident occurred. The public road between Derry and Latrobe crosses the railroad, about two miles from the latter place, by a bridge 19 feet above the track, constructed of wood and built in the usual manner. The plaintiff was travelling along this road, and while driving over the bridge, the express passenger-train from Philadelphia going west passed under it, whistling as it passed, at which his horses took fright and ran away, overturning the carriage and throwing him out, in consequence of which he was seriously and permanently injured. A hill on the east side of the public road extending along it for the distance of about 74 rods, obstructs the view of the railroad, but it can be seen five or six rods from the bridge. As the plaintiff was approaching the crossing he stopped twice and listened for trains. About 100 rods east of the bridge there is a whistling-post, and it was usual for trains going west to sound an alarm-whistle as they passed, but at the time of the accident the whistle was not sounded until the train was passing under the bridge.

The first question presented by the assignments of error is, whether the court erred in refusing to charge that it was not such negligence on the part of the railroad company in not sounding the alarm whistle on approaching the bridge as will render it liable for the injuries which the plaintiff received. Generally what is and what is not negligence is a question for the jury. When the standard of duty is a shifting one, a jury must determine what it is, as well as find whether it has been complied with: Glassey v. Hestonville, &c., Passenger Railway Company, 7 P. F. Smith 174. The degree of care demanded of the company in running its train depended on circumstances, and whether it observed due care in approaching the bridge or was guilty of negligence in not sounding an alarm-whistle, was a question which properly belonged to the jury to determine. If there had been no evidence of negligence, or any facts or circumstances from which negligence could be fairly inferred, the court ought not to have submitted the question to their determination. But it is as clearly the duty of a railroad company as it is of a natural person, to exercise its rights with a considerate and prudent regard for the rights and safety of others; and for injuries occasioned by negligence both are equally responsible. Nor is it any excuse or justification that the act occasioning the injury was in itself lawful or that it was done in the exercise of a lawful right, if the injury arose from the negligent manner in which it was done. If there was no danger to the persons and property of those who might be travelling along the public road in running its trains without...