Pennsylvania Railroad Co. v. Coon

• Decision Date: 25 January 1886
• Citation: 111 Pa. 430,3 A. 234
• Parties: The Pennsylvania Railroad Company v. Coon
• Court: Pennsylvania Supreme Court

3 A. 234

111 Pa. 430

The Pennsylvania Railroad Company v. Coon

No.

Supreme Court of Pennsylvania

January 25, 1886

Argued January 7, 1886 [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Error to the Court of Common Pleas, No. 4, of Philadelphia county Of January Term, 1885, No. 70.

This was an action on the case brought by Eliza Coon against the Pennsylvania Railroad Company, to recover damages for the death of her husband, Isaac Coon, who was killed by being struck by a locomotive while he was crossing the track of the defendant's railroad at Orthodox street and Trenton avenue, in Frankford, Pa. The defendant pleaded not guilty.

On the trial before Thayer, P. J., the following facts appeared: At about half-past ten at night on the 10th of August, 1883, Isaac Coon, the husband of the plaintiff, was about to cross Trenton avenue at Orthodox street, in Frankford, on which avenue the railroad of the defendant is laid with four tracks. He stepped on the curb to let a freight train pass, which was running east on the third or fourth track from him. As soon as it was passed he stepped from the curb and walked to the first rail of the first track, where he was struck and killed by a train coming west, running at the rate of between thirty and forty miles an hour. From the time he stepped from the curb until he reached the rail he had to traverse twelve to fifteen feet, and at any point of this space he had a clear, uninterrupted view of the track for about three quarters of a mile. The crossing was on the built up portion of Frankford. There was no gate at the crossing. The watchman who was stationed there usually went home about ten o'clock. At the time of the accident there was no watchman there. The testimony was conflicting as to whether Coon stopped after leaving the curb; there was no evidence as to his looking and listening. The testimony was conflicting also as to whether the bell on the locomotive had been rung. The whistle blew just as he reached the track. The witnesses fix the spot at which it blew at about forty-five feet from where he was struck. Neither the plaintiff nor the defendant presented any points for charge.

The court charged the jury as follows:

Isaac Coon, according to the evidence, was killed by an accident on the Pennsylvania Railroad on the 10th of August, 1883, at about half past ten o'clock at night, while he was crossing the track of the railroad at Orthodox street and Trenton avenue, in the borough of Frankford.

This action is brought by his widow to recover the pecuniary damages which she has suffered for the loss of his life. And while I am upon that subject I may as well state to you that the Act of Assembly which has already been referred to enacts that only such damages shall be given for a loss of life, under such circumstances, as the evidence clearly proves the plaintiff to have pecuniarily suffered. That is, the damages given in such cases are to be restricted to the pecuniary loss of the plaintiff. Nothing is to be given, therefore -- of course it would be vain to give anything -- by way of consolation, anything of that kind to atone for the domestic loss of her husband. The law confines the damages to the pecuniary loss of the parties suing.

The two questions in the case are, whether the death of Isaac Coon was the result of any negligence on the part of the defendant company, and whether Isaac Coon himself exercised ordinary caution in attempting to cross the track at that point and at the time that he did. If his death is due to the defendants' negligence, the plaintiff is entitled to damages, provided he exercised due precaution himself. Due precaution in crossing a railroad track consists in looking out for yourself. It is every man's duty to stop, look and listen when he approaches a railroad track, to see if any train is approaching; and the man who neglects so plain a precaution as that is guilty of contributory negligence, and in such a case no recovery can be had. In such case the plaintiff who represents him cannot recover, notwithstanding the death may have been attributable in some measure to the negligence of the company. He must himself, in other words, have been free from blame in order that the plaintiff in the action may recover.

The question, therefore, with regard to him -- Isaac Coon -- is whether he took those precautions on this occasion or not. Whether he stopped, looked and listened, as he approached the track, and exercised that ordinary caution which a reasonable man would take to avoid danger under the circumstances. If he did that, he was not guilty of contributory negligence; if he neglected it, he was guilty of it, and if he was guilty of it the plaintiff cannot recover; if he was not guilty of it the plaintiff must recover if the accident was caused by the defendants' negligence.

[Now, the particular negligence imputed to the defendants by the plaintiff, which is charged to have been the cause of this accident, seems to be that the train was being run at an undue rate of speed, without sufficient warning to the people who had occasion to cross at this crossing. In regard to the rate of speed at which a train may be run, gentlemen, it must be obvious that the determination of such a question must be relative to the attending circumstances. If you have a watchman at the crossing to prevent people going over, or if you have gates at the crossing which absolutely preclude anybody from going over the track while the train is approaching, such a train may go at any rate of speed it may attain without negligence, because there is absolutely no danger. If you take sufficient precautions to prevent any person from approaching the crossing when the road is being occupied by the train, it don't make any difference at what speed you go. You have a right to go at any rate of speed you please, if you make it safe for the public. That is the question, if you make it safe for the public. And no moderation of speed will avail, either, on the other hand, if every precaution is neglected which it is necessary to take for the preservation of human life and the safety of those who have occasion to cross railroads on public highways.

The question, gentlemen, in this case is, whether the death of Isaac Coon was caused by the neglect of any of these precautions; whether these cars were run at a high rate of speed, without proper warning being given to the people who had occasion to cross that track.]

Now, what kind of warning may be given or what measures are necessary in order to protect the public, are not questions of law, but questions of fact. It is obvious that a company may resort to any good device or expedient which will produce the desired result. They may, as is often done, station a watchman there who will keep off the people at hours when he knows the trains are approaching; or they may, if they are authorized by the city authorities to do that, put gates across the highway, in order to prevent vehicles and people from crossing; or they may perhaps dispense with both if their engineers are required to give sufficient long and loud warnings of some kind to passengers and to people who are about to pass over the crossing, and it is absolutely necessary that some precaution be taken in order to prevent the sacrifice of human life by trains rushing down upon crossings, to give notice to those who have occasion to go along the public thoroughfare at that point.

Now upon the present occasion the evidence is that there was no flagman at this place; he had gone home, it would seem from the evidence. It is perhaps fairly inferable from the evidence, that during the daytime, ordinarily, there is a flagman at this point, that he goes home at ten o'clock at night, and that he had gone home in accordance with his custom, at ten o'clock on that particular night. This particular place, then, therefore, had no flagman or watchman there to caution people not to cross; and if there were any means of warning except to ring the bell or blow the whistle, I don't remember it in the evidence. I don't think there is any evidence of any precaution taken by the company to warn the public of approaching trains at this point, except it be by ringing of the bell and the blowing of the whistle. With regard to the ringing of the bell, the plaintiff's evidence is that the witnesses heard no bell ring at all. Several of her witnesses testified to that, that so far as they knew or heard, no bell was rung. On the other hand, people on the engine -- the fireman, the engineer, and the assistant fireman, for there was an assistant fireman on this occasion; the chief fireman not being very well, he had an assistant; and all testified that the bell was rung as they approached the crossing. With regard to the whistle, it must be conceded at least, there is no evidence to prove that any whistle was blown at all, until the train had got almost upon the crossing. The whistle, according to the engineer, was blown when he observed the man upon the track had not noticed the bell, and when, as he says, he was fifty yards away, and the man was in front of the engine. Then the engineer says that, observing that he had not noticed the bell, he blew the whistle, when he was fifty yards from the engine. Whether he heard the whistle or not, or whether, hearing it, he had not time to get out of the way, the fact was that the train came down instantly upon him and crushed him to death.

Whether gentlemen, the bell was rung and when, whether the whistle was blown and when, and how long, are facts which it is your province to determine and not mine. The question in the case is whether sufficient precautions were taken in view of the rate of speed at which the train was actually proceeding;...