Simmons v. Pennsylvania Railroad

• Decision Date: 29 April 1901
• Docket Number: 229
• Parties: Simmons, Appellant, v. Pennsylvania Railroad
• Court: Pennsylvania Supreme Court

48 A. 1070

199 Pa. 232

Simmons, Appellant, v. Pennsylvania Railroad

No. 229

Supreme Court of Pennsylvania

April 29, 1901

Argued March 25, 1901

Appeal, No. 229, Jan. T., 1900, by plaintiff, from judgment of C.P. No. 1, Phila. Co., March T., 1899, No. 467, on verdict for defendant in case of Jacob J. Simmons v Pennsylvania Railroad Company. Affirmed.

Trespass to recover damages for personal injuries. Before BEITLER, J.

At the trial it appeared that on October 14, 1897, plaintiff while driving a one-horse wagon approached a grade crossing of defendant's road. As he approached the crossing the safety gates were lowered, and according to plaintiff's testimony were kept down for a period of time longer than that permitted by the city ordinance. While plaintiff was waiting, a locomotive passed, and his horse took fright at the whistle and escaping steam, and pushed through the gate and plaintiff was thrown against the moving train.

The court charged in part as follows:

It was the plaintiff's duty to place himself on that road, when he found the gates down, in such a position as would enable him to take the best care of himself, under the circumstances, that he could. If he did not take care of his own safety, -- if you find from the evidence he did not, he was guilty of negligence and he cannot recover, no matter what the negligence of the defendant company had been. [There is no question but that prior to the coming of that train to the crossing these gates were down; whether they had been down nine, five or one minute had nothing at all, I say to you, to do with this case, -- the fact that they were down was a warning that the train was approaching, and I believe no court has attempted to say, or no court will attempt to say, at what moment of time a gateman must put down a gate.] Whether they were down nine minutes or less, as that train was approaching Broad street might have some bearing upon the credibility of the witnesses testifying in this case or some bearing upon the weight you will give to the testimony of the witness of the plaintiff or defendant. The plaintiff's witnesses do say that gate was down for many minutes before the train came to that crossing, whereas the testimony on the part of the defendant's witnesses put it that it was lowered just before the train came to the crossing.

[On the part of the defendant there was, so far as has been shown every person on the train and about that locality has been called and their testimony is, without going into details that no whistle was blown by that engine until after the engine had crossed Moyamensing avenue, and gotten up to near the weighmaster's office, which I understand to be somewheres two or three hundred feet west of the crossing, and that then the whistle was blown because the engineer then discovered that this horse was plunging towards his train and that the whistle was blown as the only signal that he could give to have brakes put on that train and have the train stopped;] that the engine, while it had the ordinary steam connections to apply power by steam to the brakes, was not connected with the rest of the train by air brakes, a freight train not equipped by air brakes, and while the air would operate to stop the engine, with a train of thirty-seven cars behind it, the momentum would carry the whole train quite a distance unless the brakes on the train were applied. The testimony of everybody in connection with the gates, servants and everybody at that locality at that time, is that the whustle was blown once, and that it was recognized as the only signal which could be given by the engineer to have the brakes applied to stop the train. [2]

Defendant's points were as follows:

Under the evidence in the case, the act of the gate keeper in lowering the safety gates and keeping them down for a longer time than is allowed by the city ordinance (as testified on the part of the plaintiff), cannot be held to be the proximate cause of the accident and should not be taken into consideration by the jury in deciding the issue of fact raised by the pleadings in the case. Answer: I affirm that point. [4]

If the jury believe that the sounding of the whistle and blowing off steam, or either of these acts, was caused by the wilful and malicious conduct of an employee of the defendant, not acting in the line of his duty, the defendant cannot be held responsible for such conduct, and the jury should find for the defendant. Answer: That requires me to say a word to you upon a phase of the case not argued to you by counsel. If a merchant sends his driver upon the street to deliver a load of goods, that driver is in the discharge of a duty and services of his employ, and if he negligently runs over anybody upon the highway the employer must pay the bill, he must respond in damages; but if the employer sends a man out on the highway to deliver a lot of goods and the driver sees a man upon the highway that he has a grudge against and says to himself, "I have a horse and loaded wagon and I am going to run that man down," and whips the horse up and runs down the man, the driver is responsible, criminally and civilly, and the employer is not, because, that is a wilful and malicious act of the driver and not an act done in the discharge of his duty to his employer. Whether the facts in this case fit that principle of law, I leave for you to decide. The plaintiff testifies that the engineer laughed at him after the first blast of the whistle and that in point of fact, even after the second blast of the whistle he had his horse well under control; that this man seeing the predicament he was in, laughed at him and discharged this cloud of steam. If you were sitting in the court of quarter sessions and the engineer was on trial for having done that thing, and it was admitted that the engineer had laughed at this man when he saw the horse rearing and had blown the whistle the second time and still continued to enjoy the predicament this man was in, and absolutely regardless of his safety and the danger he was in, let off steam, so that the accident was bound to happen, you would be justified in finding that engineer guilty of a criminal act. If you find such to be the case here, you have the right to find what the engineer did was criminal on his part, wanton on his part, and that the company is not responsible for that act of his. I want to add to that: when the engineer was asked, when his attention was called to the statement of the plaintiff that he was laughing at him when he blew the whistle the second time and let off steam, while he did not say he was not laughing at him, he made the reply that seemed to me to be the reply of a manly man, he saw nothing in the position of that man to make him laugh at him. [6]

Verdict and judgment for defendant. Plaintiff appealed.

Errors assigned were (1-6) above instructions, quoting them.

Judgment is affirmed.

Henry C. Terry, with him Anthony A. Hirst, for appellant. -- While an ordinance in itself was not evidence of negligence, it may be considered with other evidence in ascertaining whether the defendant was guilty of negligence: Lederman v. Penna. R.R. Co., 165 Pa. 118; Foote v. American Product Co., 195 Pa. 195.

In considering what is the proximate cause of a certain occurrence, the jury must determine whether the facts constitute a continuous succession of events so...