Philadelphia & Reading Railroad Co. v. Killips

• Decision Date: 17 February 1879
• Citation: 88 Pa. 405
• Parties: Philadelphia & Reading Railroad Co. <I>versus</I> Killips.
• Court: Pennsylvania Supreme Court

88 Pa. 405

Philadelphia & Reading Railroad Co. versus Killips.

Supreme Court of Pennsylvania.

January 20, 1879.

February 17, 1879.

January 20th 1879.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON and TRUNKEY, JJ. WOODWARD, J., absent

Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of July Term 1878, No. 6.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Thomas Hart, Jr., for plaintiff in error.—There is no common-law duty upon a railroad company to station flagmen at public crossings, irrespective of circumstances: Stubley v. London & N. W. Railway Co., L. R. 1 Exch. 13; Beisiegel v. N. Y. Central Railroad Co., 40 N. Y. 9; McGrath v. Railroad Co., 59 Id. 468; Penna. Railroad Co. v. Matthews, 7 Vroom 531; D., L. & W. Railroad Co. v. Toffey, 9 Id. 525; Commonwealth v. Boston & W. Railroad Co., 101 Mass. 201; Bailey v. N. H. & H. Railroad Co., 107 Id. 496.

The only qualification of this rule is that such an obligation may become due by reason of the railroad company constructing its road so as to create a peculiar difficulty at the crossing and making it therefore more than ordinarily dangerous.

It is sufficient to say in this case that no question of a duty to maintain a flagman or a gate at Ninth and Columbia avenue was made or submitted to the jury. And even if it had been pretended that the railroad company was bound to keep a watchman there, nothing was shown which would, under the authorities above cited, have justified the submission thereof to the jury.

There was no peculiarity about this crossing, for the fact that buildings prevented a view at Tenth street does not distinguish it from other city crossings.

The placing the gate at the crossing was the voluntary act of defendant, and it should not be held to be negligent because it assumed to put a watchman to attend to it for a portion only of the day. The cases in which companies were held liable for not maintaining, or negligently maintaining gates, were cases in which there was some statutory requirement. If a person undertakes to perform a voluntary act, he is liable if he performs it improperly, but not if he neglects to perform it: Skelton v. London & N. W. Railway Co., L. R. 2 C. P. 631; McGrath v. Railroad Co., 59 N. Y. 468; Thorne v. Deas, 4 Johns. 84; Grant v. City of Erie, 19 P. F. Smith 420.

The deceased had no right to interpret the absence of the flagman as an assurance of safety: McGrath v. Railroad Co., supra.

The blowing of the whistle was not negligence. It was not blown after the horse took fright, and non constat that it was not blown to warn the driver of the horse or to try to stop the train. Relation must be had to the circumstances in which the engineer was placed, and the motive for blowing the whistle be determined thereby.

George Junkin, for defendants in error.—Where there is extensive travel across a railroad track, the company is bound to exercise a degree of care and diligence commensurate with the risk of accident Philadelphia and Reading Railroad Co. v. Spearen, 11 Wright 300.

Due warning should be given by the company of the approach of the train: Pennsylvania Railroad Co. v. Barnett, 9 P. F. Smith 259; Reeves v. Del. & Lack. Railroad Co., 6 Casey 454; Pittsburgh and Fort Wayne Railroad Co. v. Dunn, 6 P. F. Smith 280.

When the defendant's railroad is carried across a public highway in such manner and place that those travelling the highway can neither see nor distinctly hear approaching trains, until too late to avoid collision with them, the company is liable for such collision, in the absence of negligence of those injured: Richardson v. Railroad Co., 45 N. Y. 846.

It was a question for the jury, whether the circumstances surrounding this crossing were not such as made it the duty of the company to put the gate there. They got permission from the city to do it: Railroad Co. v. Hagan, 11 Wright 244.

The public saw the gate there, and recognised it as the company's notice to all comers that a train was coming, and all had a right to suppose that it was only open when it was safe to cross, no matter at what hour of the day or night they drove along Columbia avenue.

The unnecessary blowing of the whistle, under the circumstances, was negligence: Pennsylvania Railroad Co. v. Barnett, 9 P. F. Smith 259; Railroad Co. v. Dunn, 52 Illinois 451; Railroad Co. v. Stinger, 28 P. F. Smith 219; and the question was properly left to the jury.

Negligence is the absence of care according to circumstances: Turnpike Co. v. Railroad Co., 4 P. F. Smith 345.

What is negligence, is always a question for the jury, when the measure of duty is ordinary and reasonable care, and where the standard of the degree of care shifts with circumstances: West Chester Railroad Co. v. McElwee, 17 P. F. Smith 311, and cases cited in Br. Dig. 1800.

Where there are any controverted facts, the question of negligence is for the jury: Pennsylvania Railroad Co. v. Ogier, 11 Casey 60; Holmes v. Watson, 5 Id. 457.

Mr. Justice STERRETT delivered the opinion of the court, February 17th 1879.

It is not claimed, in this case, that the deceased was chargeable with contributory negligence; but, it is contended that there was not sufficient evidence to justify the court in submitting to the jury the question of the company's negligence.

The learned judge affirmed, without qualification, the defendant's first, third and fourth points, and thereby instructed the jury, in substance, that the company, being authorized to use steam-engines on its road, was "not responsible for accidents arising from horses being frightened by the noises properly incident to the employment of such engines, or by the sight of the engines;" that the sounding of a whistle, in order to amount to negligence, must be of an extraordinary character, and although the horse may have been frightened by the blowing of the whistle, there could be no recovery, unless the jury found from the evidence that it was of an extraordinary and unnecessary character; nor would the company be liable if the engineer "blew the whistle for the purpose only, and with the intent of frightening" the horse. These instructions are not complained of, and their effect manifestly was to limit the right of recovery, so far as the whistle may have been instrumental in causing the accident, to an extraordinary and unnecessary use thereof. And, in affirming defendant's second point, he charged that no negligence could be imputed to the company from the exercise of its right to use and run its engine in an ordinary way, and with due and reasonable care; but, at the same time said that the jury were not precluded "from determining whether the company was negligent in leaving the gate open and fastened back, and without a watchman." This latter qualification, and the refusal to affirm the defendant's fifth to eighth points, both inclusive, have been assigned for error.

The jury were thus permitted to inquire whether the whistle, if blown at all, was of an extraordinary and unnecessary character, and whether, under the circumstances, the company was negligent in leaving the gate open and fastened back, without a watchman. The consideration of the jury was, in effect, restricted to these...