Appeal
from common pleas circuit court of Lancaster county
Townsend, Judge.
GARY
A. J. (dissenting).
The
appeal herein is from an order of nonsuit in an action for
damages claimed to have been sustained by
reason of the alleged killing of the plaintiff's
intestate. Though the exceptions are numerous
they raise practically but three questions: (1) Was it error
on the part of his honor the presiding judge in not allowing
the plaintiff to introduce in evidence a plat or diagram of
the surrounding locality where the plaintiff's intestate
was killed? (2) Was there any testimony whatever tending to
sustain the allegation that the trestle upon which the
intestate was killed was a "traveled place," in
contemplation of the statute? (3) Was there any testimony
tending to show negligence on the part of the defendant?
The
complaint, omitting the formal portions thereof, is as
follows: "(2) That on or about the 9th day of September
1899, while H. F. Ringstaff, deceased, was on his way along a
traveled place leading from the Lancaster Cotton Mills, in
Lancaster county, to his home, and having arrived at a place
where the traveled place crosses the track of the defendant
company at a place known as "Bear Creek Crossing,"
a short distance west of the Lancaster Cotton Mills, in the
county and state aforesaid, and was in the act of crossing
the track of the defendant company at said point, the said
defendant, by its agents, servants, and employés, caused one
of its locomotives, with a train of cars attached thereto, to
approach the said crossing, and then and there to pass
rapidly over the track of said railway company, and
negligently and carelessly failed and omitted while so doing
to give the signals by sounding the steam whistle or ringing
the bell as required by the statutes of this state, by reason
whereof the said H. F. Ringstaff was not aware of their
approach, and was then and there run over and killed by said
train of cars. (3) That by reason of said negligence of the
defendant company, by its agents, servants, and employés in
charge, and their careless conduct in the management of said
locomotive and train of cars, the same struck the said H. F.
Ringstaff, passing over and upon him, then and there causing
his death, to the damage of the said heirs at law $15,000;
that the said railway company knew, as it was its duty to
know, that H. F. Ringstaff, the deceased,
habitually passed and would have to pass along said traveled
place and cross its track at said crossing in going to and
from the Lancaster Cotton Mills, where he was employed and
worked. (4) That the said traveled place and crossing have
been used by the public for more than twenty years as such,
and the deceased had a right to travel upon the same."
These allegations were denied.
We will
first consider whether the presiding judge erred in not
allowing the plaintiff to introduce in evidence the plat or
diagram. When the plaintiff's attorney offered the plat
or diagram for the purpose of introducing it in evidence, the
defendant's attorney objected. The record contains the
following, as the conclusion of a lengthy colloquy: "The
Court: You might look at the paper and refresh your memory,
but the paper, unless it shows the measurements, can't go
to the jury. You might have it before you, and give your
opinion as to the distance and so forth, and show the jury
where you did measure, but you can't put the paper in. If
you put the paper in, then you put in a lot of matter that
has not been measured. Plaintiff's counsel: I will only
refer to those matters that I have actually measured. The
Court: Well, sometimes a witness, in doing that, will say,
'Well, here is where so and so lives.' Unless that
has been measured and located, he can't say that,--unless
he knows it, has measured it and located it. Plaintiff's
Counsel: I understand your honor's ruling, and I
don't wish to use anything but what has been
measured." The plaintiff's attorney was permitted to
use the diagram for the desired purpose. Therefore the
exceptions raising this question are overruled.
We will
next consider whether there was any testimony whatever
tending to show that the trestle upon which the intestate was
killed was a "traveled place," in contemplation of
the statute. Joseph Clark, a witness for the plaintiff
testified: "That in 1876, the trestle, the woodwork, was
put there, and that before that, there being a public road
and ford, people continued to go through that
way; and, inasmuch as there was no other way of crossing the
creek, they used that trestle, and the public has been using
it ever since. My wife owns a piece of land where Mr.
Ringstaff lived, on both sides of the narrow-gauge railroad.
It was purchased in 1873, and I have had occasion to cross
that trestle ever since, going to that place, and have been
using it for the whole time, and know myself that a great
many of the country people out in that part of the country,
coming to town and going through that plantation road leading
down to the trestle, have been crossing there ever since; and
I have never heard any objection or protest against their...
