West Chester & Philadelphia Railroad Co. v. McElwee

• Decision Date: 08 May 1871
• Citation: 67 Pa. 311
• Court: Pennsylvania Supreme Court
• Parties: The West Chester and Philadelphia Railroad Co. <I>versus</I> McElwee.

67 Pa. 311

The West Chester and Philadelphia Railroad Co. versus McElwee.

Supreme Court of Pennsylvania.

January 10, 1871.

May 8, 1871.

January 10th 1871.

Before THOMPSON, C. J., READ, AGNEW and WILLIAMS, JJ. SHARSWOOD, J., at Nisi Prius

Certificate from Nisi Prius: No. 51, to July Term 1869.

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G. W. Biddle, for plaintiffs in error.—The evidence as to the removal of the track should not have been received, the defendants having had no control over it. There was no conflict of testimony on the question of negligence, and the deceased voluntarily put himself into peril. The court should have decided he was negligent: N. Penna. Railroad v. Heileman, 13 Wright 60; Heil v. Glanding, 6 Id. 493; Railroad v. Hummell, 8 Id. 375; Catawissa Railroad Co. v. Armstrong, 2 P. F. Smith 282; McGrew v. Stone, 3 Id. 436; Passenger Railway Co. v. Stutler, 4 Id. 375; Hanover Railroad Co. v. Coyle, 5 Id. 396; Humphreys v. Armstrong County, 6 Id. 204; Glassey v. Hestonville Railroad Co., 7 Id. 172; Pittsburg and Connellsville Railroad Co. v. McClurg, 6 Id. 295.

A. Thompson (with whom were G. F. B. Collins and D. M. M. Collins), for defendants in error.—By using the private track the defendants were bound to observe the customs under such circumstances: Tennery v. Pippinger, 1 Phila. R. 543; Rauch v. Lloyd, 7 Casey 358; Reeves v. Delaware Railroad, 6 Id. 460. A party is not bound to guard against want of ordinary care in another: Brown v. Lynn, 7 Casey 510; McCully v. Clark, 4 Wright 399; Penna. Railroad v. Barnett, 9 P. F. Smith 259; Kay v. Penna. Railroad, 15 Id. 269.

The opinion of the court was delivered, May 8th 1871, by WILLIAMS, J.

There was no error in admitting the testimony of Charles Rourke, that the track had been moved since the date of the accident. If it tended to show, as suggested, that the track was originally too near the office and shanty to permit the cars to be run on it without danger, then it was evidence of a fact proper for the consideration of the jury in determining whether due and reasonable care had been used by the company to avoid the accident. If the proximity of the track to the buildings did not increase the danger why was it moved? And if it did, then a higher degree of care was necessary in order to avoid accident, and in this aspect the evidence was properly received.

The only other question presented by the assignments of error is, whether the court, under the facts disclosed by the evidence, should have instructed the jury that the decedent was guilty of negligence which contributed to his death, and the plaintiffs were not entitled to recover.

The law is well settled that what is and what is not negligence in a particular case is generally a question for the jury and not for the court. It is always a question for the jury when the measure of duty is ordinary and reasonable care. In such cases the standard of duty is not fixed but variable. Under some circumstances a higher degree of care is demanded than under others. And when the standard shifts with the circumstances of the case, it is in its very nature incapable of being determined as matter of law, and must be submitted to the jury to determine what it is, and whether it has been complied with. But when the standard is fixed, when the measure of duty is defined by the law, and is the same under all circumstances, its omission is negligence, and may be so declared by the court. And so, when there is such an obvious disregard of duty and safety as amounts to misconduct, the court may declare it to be negligence as matter of law. But where the measure of duty is not unvarying, where a higher...