Pennsylvania Railroad Co. v. Goodman

• Decision Date: 06 July 1869
• Citation: 62 Pa. 329
• Parties: The Pennsylvania Railroad Company <I>versus</I> Goodman.
• Court: Pennsylvania Supreme Court

62 Pa. 329

The Pennsylvania Railroad Company versus Goodman.

Supreme Court of Pennsylvania.

May 24 and 25, 1869.

July 6, 1869.

May 24th and 25th 1869.

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

Error to the Court of Common Pleas of Lancaster county: No. 42, to May Term 1868.

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G. F. Brenneman and T. Cuyler, for plaintiffs in error.—The defendants had a right to change their own regulations: Skelton v. London and N. W. Railway Co., Law Rep. 2 C. P. 631. As to measure of damages: Penna. Railroad Co. v. Kelly, 7 Casey 372; Same v. Zebe, 9 Id. 318; Same v. Ogier, 11 Id. 60; Heil v. Glanding, 6 Wright 493; Penna. Railroad v. Vandever, 12 Casey 298. On the facts, negligence on the part of the plaintiff was a conclusion of law: Railroad Co. v. McClurg, 6 P. F. Smith 297. The law required the plaintiff to prove affirmatively that he stopped and looked along the track: Catawissa Railroad v. Armstrong, 13 Wright 191; Gahagan v. B. & L. Railroad, 1 Allen 190; Wilson v. Charlestown, 8 Id. 187; Shaw v. B. & W. Railroad, 8 Gray 73; Warren v. Litchburg Railroad Co., 8 Allen 137; Butterfield v. Western Railroad Co., 10 Id. 532; O'Brien v. The Philada. Wilmington & Balt. Railroad Co., 3 Phila. R. 76. The plaintiff is chargeable with knowledge if he had such opportunities of knowledge as with ordinary caution would have saved him from danger: Penna. Railroad v. Henderson, 7 Wright 453; Stubley v. London and N. W. Railway Co., Law Rep. 1 Exch. 13; P. F. W. & C. Railroad v. Evans, 3 P. F. Smith 250; Heileman v. The N. P. Railroad Co., 13 Wright 60; Telfer v. The Northern Railroad Co., 1 Vroom 188.

O. J. Dickey and N. Ellmaker, for defendant in error.—The question of negligence was for the jury: Philada. & T. Railroad v. Hagan, 11 Wright 248; Steamboat N. World v. King, 16 How. 469. Not blowing the whistle was negligence: Penna. Railroad v. Ogier, 11 Casey 71; Reeves v. Del. Lackaw. & W. Railroad, 6 Id. 454; Beatty v. Gilmore, 4 Harris 463; Hanover Railroad Co. v. Coyle, 5 P. F. Smith 401.

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

The verdict in this case appears to us to have been very unwarranted, and ought to have been set aside. The evidence of negligence on part of the plaintiff below in approaching the railroad crossing is very strong. An accurate survey of the road travelled by the plaintiff and the railroad has been made. Seventeen hundred feet of the Colebrook road by which the plaintiff approached the crossing has a descending grade to the railroad of 48 feet, diminishing gradually and with very little unevenness. The civil engineer, in walking these 1700 feet, kept his eye on the whistling post from which the train had come, and which stood 825 feet from the crossing, and he testifies he had the post in sight all the way to the crossing, except at a single spot where he lost the view, but could regain it by a single step backward or forward. The plaintiff's witnesses admit that the railroad track is in sight all the way except at a spot from 15 to 20 yards from the crossing. Thus, for 1700 feet the railroad is clearly in view until the traveller on the Colebrook road reaches within 60 feet of the crossing, and then the view is intercepted only a few feet. This was to the eyes of persons on foot; but the seat of an ordinary light wagon is about 4 feet from the ground, while to the eye of a man of ordinary height it is about 2½ feet more from the seat, making about 6½ feet from the ground, thus giving to one seated in a wagon a foot or more height. The speed of the train at this point was according to schedule-time 27 miles an hour, and by the testimony of the engineer and another, 28 miles. The speed of the plaintiff was 4 miles an hour or more — but assume 4½ miles. The train then travelled at a speed of 6 2/10 greater than the plaintiff, the former going 41 feet in a second, and the latter 6 6/10 in the same time. Their relative distances from the crossing were therefore as follows: When the plaintiff was 60 feet off the train was 372 feet — plaintiff 133, the train at the whistling post 825 feet, and when the train was one-third of a mile 1760 feet off, the plaintiff was 284 feet. The civil engineer testifies that when standing at a point on the Colebrook road, 50 feet from the crossing, he could see the rodmen on the railroad 1222 from the crossing — at 150 feet he could see 1750 — at 250 feet he could see to the mile-post 2000 feet from the crossing, and at the stable 734 feet, he could see along the railroad 2600, and more — while at the top of the rise (1700 feet off) he could see from 3000 to 4000 feet along the railroad. Thus it is ascertainable, from the testimony of both sides, that when the train was 1760 feet from the crossing, and the plaintiff 284 feet, he could see the train approaching while he travelled 224 feet, until he reached the point 60 feet from the crossing where it is said the view is intercepted a few yards, and when he had arrived at this point the train was within 372 feet of the crossing. The fact that he did see the train is also testified to by seven witnesses, of whom four were passengers having no interest in the suit, all of whom prove his admissions that he saw the train, but his horse became unmanageable, and he could not hold him. Another important fact is, that the locomotive struck the hind wheel of the wagon, showing that the plaintiff must have crossed just in front of the train. Now, the seat of an ordinary wagon to the head of the horse is from 12 to 15 feet. Assuming the latter, and the train was within 93 feet when the horse came to the...