Philadelphia, Baltimore And Washington Railroad Company v. Buchanan

• Citation: 25 Del. 202,78 A. 776
• Court: United States State Supreme Court of Delaware
• Decision Date: 18 January 1911
• Parties: PHILADELPHIA, BALTIMORE AND WASHINGTON RAILROAD COMPANY, a corporation of the State of Delaware, defendant below, plaintiff in error, v. ROBERT L. BUCHANAN, plaintiff below, defendant in error

78 A. 776

25 Del. 202

PHILADELPHIA, BALTIMORE AND WASHINGTON RAILROAD COMPANY, a corporation of the State of Delaware, defendant below, plaintiff in error, v. ROBERT L. BUCHANAN, plaintiff below, defendant in error

Supreme Court of Delaware

January 18, 1911

Supreme Court, January Term, 1911.

WRIT OF ERROR (No. 3, June Term, 1910) to Superior Court for New Castle County (No. 84, March Term, 1909, below). Action by Robert L. Buchanan against the Philadelphia, Baltimore and Washington Railroad Company, to recover damages for personal injuries to plaintiff, death of his horse, and injuries to his wagon, from an accident at a crossing. Judgment for plaintiff below affirmed.

The facts of the case and the assignments of error relied upon fully appear in the opinion. For report of case in court below, see 1 Boyce 83, 75 A. 873.

ARGUMENT OF COUNSEL FOR PLAINTIFF IN ERROR.

I.

Upon the Facts.

From the evidence it clearly appears that at a point nineteen feet from the nearest rail the plaintiff could see up the track toward Wilmington; to Porter's Station, a distance of about three-quarters of a mile. He looked up the private lane, about two hundred and fifty feet from the track. His horse was on a walk, and any view which he could have of the railroad at that point would avail him nothing as against a train running twenty-five to thirty miles an hour, so that we have a case of a man approaching a crossing in a wagon with the horse on a walk, with view obstructed, stopping and listening forty feet from the crossing, when the wind was blowing the sound of the train away from him, and where he could see nothing of the approaching train, and then going on at a walk past a point where, admittedly, he could see the approaching train for a distance of three-quarters of a mile.

Under the circumstances of this case, with his knowledge of the physical surroundings, was it not the duty of the plaintiff to approach the crossing with his horse under such control as to enable him to look when he could see an approaching train in time to avoid accident? The Court must come to the conclusion that the plaintiff is not free from negligence contributing to his injury, where he passes a point of safety at which, if he had looked, he could have seen the approaching train, and that the use of his sense and hearing at a point forty feet away, under the circumstances of this case, did not absolve him from his duty to continue to listen and look as he approached the track. The duty to look and listen continues until the danger is past. We would call the court's attention briefly, to the fact that the evidence as to signals is in this case, as in most cases of this sort on the part of the plaintiff, that the witnesses did not hear the signal, while on the part of the defendant there are positive statements that the signals were given.

The evidence of Sparks, a witness called for the plaintiff, is to the effect that he heard the whistle blow for Porter's Station, and that he heard the noise or rumble of the train while the train was coming toward the crossing. Sparks was out in the public road near his home, which is about a quarter of a mile from the crossing. The fact that Sparks could hear the train at that distance and the fact of which the court can take judicial notice, that trains of that character do run with considerable noise should be taken into consideration in connection with the statement of the plaintiff himself, that he stopped forty feet away, listened and could hear nothing, and then walked his horse over the intervening space to the track and knew nothing of the approach of the train until he looked up and found it "right on him." While the plaintiff was covering a distance of forty feet to the track the train was probably running within a distance of four hundred feet (the train running at thirty miles, and the horse on a walk). It seems inconceivable that a man in the exercise of due care and caution, approaching a dangerous crossing, could be run into in the way testified to by the plaintiff. It is more consistent with the action of a man worn out with fatigue from labor and the heat of the day. Taking his story as true and placing upon it and upon all the testimony the most favorable construction to his case, we yet have a plain case of failure to make use of his faculties where such use would have been of avail.

The testimony of the plaintiff's witnesses is that at a point about twenty feet from the crossing the southbound train can be seen approaching. The question as to whether a certain place is the best place to stop might properly be submitted to the jury. But the question here is, not whether he should have stopped again, but whether the plaintiff was relieved of all further legal duty of care. The question is properly for the court.

II.

On the Law.

The important question under the assignment of errors relied on comes up on the first assignment, namely, that the court below erred in refusing to instruct the jury to find a verdict for the defendant.

Admitting the negligence of the railroad company, yet from all of the evidence, giving it the most favorable construction to the plaintiff below, it clearly appears that there was such contributory negligence as will bar recovery in this case.

The Supreme Court of this state in the recent case of Railroad v. Reed, 5 Penn. 227, declared:

"It is quite impossible to lay down any definite rule by which to determine whether the question of contributory negligence is to be found, under the evidence, as a conclusion of law, or should be submitted to the jury as a question of fact. The determination of the question must necessarily be controlled by the facts and circumstances of the particular case."

* * *

"If however, it clearly appears from the evidence that there was contributory negligence, proximately entering into and contributing to the accident, at the time of its occurrence, it is the duty of the court to so find, as a matter of law." The facts in that case are somewhat different from the facts in this case, but the law as to the relative duties of the railroad company and the traveler is there so fully set forth as to render unnecessary any further setting forth of such law than a reference to this case. It is true, as is stated in the Reed case, that the court will examine the facts of a particular case and will, where the occasion warrants, decide, as a question of law, that the plaintiff is guilty of contributory negligence.

The first question is whether the plaintiff, having stopped and listened at a point forty feet from the track, where he could see nothing, is guilty of contributing to his injury by passing a point nineteen feet from the track where, according to the plaintiff's evidence, he could have seen, if he had looked, three-quarters of a mile in the direction from which the train was coming.

It is too well established as the law of this state to need citation of authorities that a person approaching a railroad crossing with which he is familiar, is bound to avail himself of his knowledge of the locality and act accordingly. If, as he approaches the crossing, his line of vision is obstructed, he is bound to look for approaching cars in time to avoid collision with them, and if he does not look, and for that reason does not see an approaching train until it is too late to avoid a collision and he is thereby injured, he is guilty of negligence and could not recover therefor.

The difficulty in this case seems to grow out of the fact that the point at which the plaintiff was able to use his sense of sight was much closer than that in any case where the duty of the traveler has been considered by the courts of our state.

In the case of Lynam against the Railroad, 4 Houst. 583, the plaintiff relied upon his knowledge of the time of the passing of the train and the absence of a headlight. The court there ordered a nonsuit on the ground that if they had looked or listened but an instant before they drove upon the track at the crossing they could have prevented the collision and the injury.

In the case of the P. & R. R. Co. v. Peebles, 67 F. 591, the facts are strikingly similar to the facts in this case.

It was as much Buchanan's duty in this case, as it was Peebles' duty in that, to look up the track as soon as his line of vision was open. When the familiarity of the plaintiff with the crossing in this case is properly considered, there would seem to be no escape from the force and effect of the Peebles' case.

In the case of Railroad Company v. Lacey, 94 Va. 446; 26 S.E. 834, the person injured stopped, looked and listened for the train several hundred feet away from the track and after that could only have seen up the track of the railroad at a point within twenty feet of the crossing. Yet for the lack of care in continuing to look and listen for the approaching train, when he might have looked and listened effectively, it was held that his failure to do this was contributory negligence.

In the case of McClure v. the Railroad, 41 Pa. S.Ct. Reports, 227, the driver of a team approaching a railroad grade crossing, stopped at a distance one hundred feet from the track, at a point where he could not see a train approaching. At a point sixteen feet north of the track there was a clear and unobstructed view of the track for at least a mile. After stopping at a point one hundred feet away he drove down and on to the track and was struck and injured. It was held that the evidence established the contributory negligence of the plaintiff's agent.

Central Railroad of New Jersey v. Feller, 84 Pa. 226; Urias v. Penna. R. R. Co., 152 Pa. 326; Myers v. B. & O. R. R. Co., 150 Pa. 386; Corcoran v. Penna. R. R. Co., 203 Pa. 380; Kinter v. Penna. R. R....