Pennsylvania Railroad Co. v. Horst

• Decision Date: 05 October 1885
• Docket Number: 86
• Citation: 110 Pa. 226,1 A. 217
• Parties: Pennsylvania Railroad Company v. Horst
• Court: Pennsylvania Supreme Court

1 A. 217

110 Pa. 226

Pennsylvania Railroad Company v. Horst

No. 86

Supreme Court of Pennsylvania

October 5, 1885

Argued May 21, 1885

ERROR to the Court of Common Pleas of Lancaster county: Of January Term 1885, No. 86.

This was an action of trespass on the case by Samuel Horst against the Pennsylvania Railroad Company to recover damages for injuries to his wife, alleged to have been caused by the negligence of defendant. Plea, not guilty.

On the trial, before PATTERSON, J., the following facts appeared: On the morning of July 23d, 1881, plaintiff with his wife and daughter started for the market at Lancaster, in a one horse wagon. He went by way of the Harrisburg turnpike which crosses at grade the defendant's road from Columbia (connecting with the main line at Dillerville) about one quarter of a mile from Dillerville, and about one mile from Lancaster. At this crossing, which is sixty feet wide, there was a freight train cut open and a gap of twenty or twenty-five feet made to allow persons and teams to cross the railroad. Plaintiff testified that he stopped before crossing and being beckoned to come on by a train-hand on the train drove on, and while on the track there was a rattling noise resembling the putting on of the brakes, made on or about the train, although no one knew how or by whom it was made, which caused the horse to take fright and run away; plaintiff's efforts to control him were unavailing: the right hand rein parted where the round and flat parts joined and the pull on the remaining rein caused the horse to turn to the left where there was an embankment; the wagon was upset and broken, its occupants thrown out and plaintiff's wife injured.

The plaintiff presented the following points: --

1. If the jury believe that the horse driven by the plaintiff was gentle, and that the plaintiff stopped at a reasonable distance from the railroad, and that after he had stopped he was instructed to advance by one of the employees of the railroad company, and that by reason of such instructions he drove upon the track, and that when his horse and wagon were immediately between the cars there was a noise or rattling on or about the cars, like the putting on or taking off the brakes, or the stretching or relaxing of the couplings, which frightened the horse and caused the accident in question then their verdict must be for the plaintiff.

Answer. Yes. (First assignment of error.)

2. No one is chargeable with negligence who has acted upon his best judgment, or who, not having time for reflection or judgment, has failed to act. Such act or omission may be a mistake, but it is not negligence. If, therefore, the jury believe that when the plaintiff advanced upon the railroad track, in obedience to the instructions from the employee to advance, he acted upon his best judgment under the circumstances, he was not guilty of contributory negligence, and their verdict must be for the plaintiff.

Answer. Yes, we affirm that. (Second assignment of error.)

3. One who acts in obedience to the instructions of an officer of the road, cannot be held guilty of contributory negligence.

Answer. This is affirmed. (Third assignment of error.)

4. Unless the jury are satisfied by affirmative proof that the plaintiff did not use care, the defendant is liable for the consequence of his injury, and their verdict must be for the plaintiff.

Answer. Yes. (Fourth assignment of error.)

The defendant submitted the following points: --

1. In an action of this kind, the burden of proof is on the plaintiff. He must show a case clear of contributory negligence on his own part, and he must prove negligence on the part of the defendant, contributing to the injury. The defendant is presumed to be free from negligence.

Answer. -- Yes; and the question of negligence is a question for the jury, unless there be undoubted evidence of clear contributory negligence by plaintiff, when the court must so pronounce it as a matter of law. Here we see no undoubted evidence of clear negligence. It is for the jury, therefore, to say whether there was negligence on the part of the plaintiff, and whether it contributed to the injury or not. (Fifth assignment of error.)

2. The cause of action averred in the narr. is, that by reason of negligence on the part of the defendant, "its cars then and there struck each other with great violence, the brake rattled with great noise," and as neither of these allegations is proved, the plaintiff cannot recover.

Answer. -- The proofs are for the jury; and it is their province to find, from all the evidence, what has been proven respecting the noise and the brake -- whether the brake "rattled with great noise;" and if the jury so find, and find that it was by reason of negligence on the part of the defendant, the company, or its conductors or employees; and find that the rattling and noise frightened the horse, and caused the runaway, then we instruct you that sufficient of the averments contained in the plaintiff's narr. are proven to enable the plaintiff to recover -- if, at the same time, you find that there was no contributory negligence on the part of the plaintiff. (Sixth assignment of error.)

3. The proof on the part of the plaintiff is that he had from twenty to twenty-five feet wide in the opening of the train and ample room to cross, and that the cars were standing still, and that other people were driving through the same opening, immediately after the plaintiff went through; therefore, the jury cannot be allowed to find that the crossing was unsafe or dangerous, or that the defendant was in any way negligent in respect thereto.

Answer. -- The court declines to affirm that point as a legal proposition. It contains alleged facts principally, and the facts are for the jury. (Seventh assignment of error.)

4. It was not negligence, on the part of the defendant, for one of its employees to beckon the plaintiff to cross, when all the testimony on the part of the plaintiff is that there was ample room to cross, and that others did cross immediately after without injury.

Answer. -- We decline to answer this point as a legal proposition. (Eighth assignment of error.)

5. There is no evidence that there was any noise unusual or unnecessary, or different from the ordinary noises incident to railroad trains, whether standing still or moving; and the testimony of the plaintiff and his wife is that there was no unusual noise about the train; and there being no other testimony as to what made any noise, there is no evidence of negligence by the defendant as to any noise made.

Answer. -- This point contains a statement of alleged facts, and we can only say that all the facts are for the jury, and that it is the province of the jury to decide what the evidence in the case proves to their satisfaction. (Ninth assignment of error.)

6. The plaintiff having established, by his own testimony, that the cars were standing still when he approached the crossing that there was a gap or opening in the train 20 to 25 feet wide, for passage through, and that it was sufficient and ample and that others passed through immediately after the plaintiff without accident or injury; and that when on the crossing his horse frightened at something and ran, and the plaintiff pulling the lines, the right line broke by the wax-ends pulling out or apart, and by the left line the horse was pulled over a bank into the summer road,...