Schum v. Pennsylvania R. R. Co.
Citation | 107 Pa. 8 |
Court | United States State Supreme Court of Pennsylvania |
Decision Date | 06 October 1884 |
Parties | Schum <I>et al., versus</I> the Pennsylvania Railroad Company. |
Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, STERRETT, GREEN and CLARK, JJ.
ERROR to the Court of Common Pleas of Lancaster county: Of January Term, 1884, No. 293.
Marriott Brosius, for plaintiffs in error.—The law presumes that Schum looked and listened and exercised due care, and that presumption stands until disproved by direct and positive evidence to the contrary: Railroad Co. v. Weber, 26 P. F. S., 157; Same v. Same, 29 P. F. S., 390; Railroad Co. v. Weiss, 6 Norris, 447; Railroad Co. v. Werner, 8 Norris, 65; Railroad Co. v. Ritchie, 6 Out., 425; Penna. R. R. Co. v. Fortney, 9 Norris, 323. The fact that he was struck by a passing train does not show that he failed to exercise this caution: Weiss v. Railroad Co., 29 P. F. S., 330; Railroad Co. v. Weiss, supra. To declare as a proposition of law that Schum negligently approached this crossing because it appears as a fact in the case that he could see fifty yards down the track at a point ten yards from the crossing in the carriage road, is to say as a matter of law that no man can be injured at that crossing by a collision but by his own negligence, and the same of every other crossing in the Commonwealth similarly situated. If so, it follows that railroad companies need not give a signal of any kind at such crossings, and can run at any rate of speed without danger of being held liable for injuries caused thereby.
H. M. North and E. D. North, for defendant in error.—It is negligence in a traveller crossing a railroad track not to stop, look and listen: Pa. Canal Co. v. Bentley, 16 P. F. S., 30. The failure to stop immediately before crossing a track is negligence per se, and this is in the first instance a question for the court: Pa. R. R. Co. v. Beale, 23 P. F. S., 504; Hanover R. R. Co. v. Coyle, 5 P. F. S., 401; Central R. R. Co., of N. J. v. Feller, 3 Norris, 226; Carroll v. Pa. R. R. Co., 12 W. N. C., 348. The presumption that Schum did stop, look and listen was rebutted by the facts shown: Pa. R. R. Co. v. Weber, 22 P. F. S., 28; Same v. Same, 26 P. F. S., 168; Pa. R. R. Co. v. Fortney, 9 Norris, 324; Wilcox v. R. W. & O. R. Co., 39 N. Y., 358.
The widow lived two hours longer than her husband, and it follows that the cause of action was in the widow, and in any recovery her share would have been one-third of the amount, and her daughter would have inherited from her mother; if these plaintiffs can recover, they ignore the rights of the widow, and appropriate to themselves what should have gone to the widow and to her estate: Act of April 15, 1851, Purd., 1093; Act of April 26, 1855, Purd., 1094.
On the 9th day of July, 1880, Philip Schum, accompanied by his wife, in a one-horse phaeton, was driving southward on the road leading from the Lancaster and Middletown turnpike to Marietta, and about the hour of noon, whilst crossing the track of the Pennsylvania Railroad at Peiffers, near Salunga station, in Lancaster county, both were struck by the engine of the Niagara express train, moving westward, and were killed. This suit is brought by the children of Philip Schum to recover damages for his death.
The carriage road crosses the railroad from the north at an acute angle, and, in the space north of the railroad and east of the carriage road, was a field of corn; in the angle nearer the railroad was a willow tree twelve or fifteen feet high, and also smaller locust trees and bushes. According to the testimony on the part of plaintiffs, the view of the railroad was, by these obstructions, so obscured, that a traveller approaching the railroad from the north, on the carriage road, could not see the track toward the east until he arrived at a point about ten yards from the track; and then it was visible only for a distance of fifty yards east of the crossing. The railroad, east of the crossing, curved sharply to the north, behind a bank in the corn field, and was lost to view; at a distance of about one-third of a mile it crossed the turnpike at Salunga station. The train was moving at a very rapid rate of speed — perhaps forty miles an hour — and it does not appear that nay signal of its approach was given.
When the testimony on the part of the plaintiffs was closed, a compulsory non-suit was entered; a motion made to take off that non-suit was refused, and this is the error assigned. The non-suit was entered, not for want of evidence, to establish negligence, on part of the plaintiffs, but upon the ground that the same evidence which established negligence of the company proved negligence on part of the decedent contributing to the result.
What constitutes negligence, in a given exigency, is generally a question for the jury and not for the court. Negligence is want of ordinary care under the circumstances; the standard is, therefore, necessarily variable; no fixed rule of duty can be formed which can apply to all cases. A course of conduct justly regarded as resulting from the exercise of ordinary care, under some circumstances, would exhibit the grossest degree of negligence under other circumstances; the opportunity for deliberation and action, the degree of danger and many other considerations of a like nature, affect the standard of care, which may be reasonably required in a particular case. When the standard shifts, not according to any certain rule, but with the facts and circumstances developed at the trial, it cannot be determined by the court, but must be submitted to the jury.
"But," as was said in McCully v. Clark, 4 Wr. 406, The...
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