Steele v. Lake Shore & M. S. Ry. Co.

• Decision Date: 06 January 1913
• Docket Number: 4
• Parties: Steele v. Lake Shore and Michigan Southern Railway Company, Appellant
• Court: Pennsylvania Supreme Court

86 A. 201

238 Pa. 295

Steele v. Lake Shore and Michigan Southern Railway Company, Appellant

No. 4

Supreme Court of Pennsylvania

January 6, 1913

Argued October 18, 1912

Appeal, No. 4, Oct. T., 1912, by defendant, from judgment of C.P. Venango Co., Jan. T., 1911, No. 3, on verdict for plaintiff, in the case of Charles A. Steele v. The Lake Shore and Michigan Southern Railway Company. Affirmed.

Trespass to recover damages for personal injuries. Before CRISWELL P.J.

It appeared by the evidence in this case that at the point where the accident occurred, the defendant railway company maintained three tracks, one being a sidetrack used for the storage of cars; that there were two permissive crossings one crossing the tracks at the foot of a set of steps constructed for the convenience of the employees of the plant at which the plaintiff was employed, and another 150 feet to the west; and also that the public were accustomed to cross the tracks at a point about midway between the two crossings when standing cars obstructed the first crossing; that there was a distinctly marked path along the side of the track and another path, broader and less distinctly marked, across the tracks at this intermediate point, the exact place at which the crossing was affected depending upon how far west the cars extended. It was at this intermediate point that the plaintiff was run down while attempting to cross the track around the end of a standing train. The plaintiff was knocked down by the unexpected starting of the train, thrown under the wheels and his arm injured, which injury was increased by another movement of the train before he was able to extricate himself. The plaintiff sought to recover damages for both the negligent starting of the train, alleged to have been the cause of his being caught, and also for the subsequent motion of the car, which increased the seriousness of the accident.

The jury found a verdict for $14,000 in favor of the plaintiff, which was reduced by the court to $8,500 and judgment entered thereon. Defendant appealed.

Error assigned was in refusing defendant's motion for judgment non obstante veredicto.

The assignments are overruled and the judgment is affirmed.

A. R. Osmer, with him J. H. Osmer and N. F. Osmer, for appellant. -- The plaintiff was a trespasser upon the defendant's right of way: Leithold v. Ry. Co., 47 Pa.Super. 137; Taylor v. D. & H. Canal Co., 113 Pa. 162; R.R. Co. v. Norton, 24 Pa. 465; Philadelphia & Reading R.R. Co. v. Hummell, 44 Pa. 375; Cauley v. Ry. Co., 95 Pa. 398; Moore v. R.R. Co., 99 Pa. 301; B. & O.R.R. Co. v. Schwindling, 101 Pa. 258; Welsh v. R.R. Co., 181 Pa. 461; Brague v. Ry. Co., 192 Pa. 242.

The plaintiff failed to establish that the defendant's employees having it within their power to have prevented the car from being moved after the plaintiff was caught knew of his perilous position, and notwithstanding such knowledge neglected to prevent his further injury: Moore v. R.R. Co., 108 Pa. 349; Penna. R.R. Co. v. Morgan, 82 Pa. 134.

The plaintiff was guilty of contributory negligence: Penna. R.R. Co. v. Bell, 122 Pa. 58; B. & O.R.R. Co. v. Schwindling, 101 Pa. 258; Carroll v. P.R. Co., 12 W.N.C. 348; Beynon v. Penna. R.R. Co., 168 Pa. 642; Hovenden v. Penna. R.R. Co., 180 Pa. 244; Haynes v. Penfield, 231 Pa. 329.

William J. Breene, with him Bryan H. Osborne and Edmond C. Breene, for appellee. -- The principle of a "permissive crossing" is not necessarily and exclusively determined by mere marks or the absence of marks on the ground nor by the variation of a few feet either way: Kay v. R.R. Co., 65 Pa. 269.

Where a railroad company has for years without objection permitted the public to cross its tracks at a certain point not in itself a public crossing, it owes the duty of reasonable care towards those using the crossing: B. & O.R.R. Co. v. Schwindling, 101 Pa. 258; Taylor v. Delaware & Hudson Canal Co., 113 Pa. 162; Philadelphia and Reading R.R. Co. v. Troutman, 11 W.N.C. 453.

The evidence fairly warranted the conclusion that after the plaintiff had been helplessly pinioned under the rear car and while in that position the defendant, notwithstanding it had due notice of his dilemma in time to prevent a further movement of its cars against him, heedlessly backed them against him a second time.

Before FELL, C.J., MESTREZAT, POTTER, ELKIN and STEWART, JJ.

OPINION

MR. JUSTICE MESTREZAT:

The questions involved in the case were questions of fact, and having been properly submitted to the jury, we see no ground for reversing the judgment entered on the verdict. The jury were justified in finding under the evidence that the place at which the plaintiff was injured was a permissive crossing. In fact, the evidence did not warrant a contrary finding. It is conceded that there was a permissive crossing directly opposite the top of the stairway leading up from the pump station and another such crossing about 150 feet west thereof. The plaintiff was injured by being struck by the rear car of a freight train at a place on a siding, the southernmost of the three tracks and about equally distant between the two crossings, and which he alleges was also a permissive crossing. The evidence introduced by him clearly established his contention, and showed that for many years the three crossings had been used by the public who had occasion to go to the pump station, the ball ground, and the Allegheny river from the north side of the defendant's tracks and by those crossings from the south to the north side of the tracks. No objection was made to such use of the crossings and it is clear that they were used by the defendant's knowledge and consent. For...