Wojochoski v. Central Railroad Co. of New Jersey

• Decision Date: 28 July 1899
• Docket Number: 6-1899
• Citation: 10 Pa.Super. 469
• Parties: Dominick Wojochoski v. Central Railroad Co. of New Jersey, Appellant
• Court: Pennsylvania Superior Court

10 Pa.Super. 469

Dominick Wojochoski v. Central Railroad Co. of New Jersey, Appellant

No. 6-1899

Superior Court of Pennsylvania

July 28, 1899

Argued January 10, 1899

Appeal by defendant, from judgment of C. P. Luzerne Co.-1894, No 227, on verdict for plaintiff.

Trespass. Before Woodward, P. J.

It appears from the testimony that there was evidence of alleged negligence of the defendant company in failing to give warning of the approach of the train to a grade crossing sufficient to carry the case to the jury upon that question. Plaintiff's evidence established the fact that in approaching the railroad crossing he stopped at a place where he could not see and then drove on passing a point, with which he was familiar, from which he could have seen the track a considerable distance. In crossing the track plaintiff was struck by the approaching train and injuries resulted for which suit was brought. The court left the question of defendant's liability to the jury refusing a request for binding instructions in favor of defendant.

Verdict and judgment for plaintiff for $ 525. Defendant appealed.

Error assigned among others was refusal to charge the jury that " under all the evidence in the case the verdict must be for the defendant."

Reversed.

Andrew H. McClintock and Henry W. Palmer, for appellant. -- It is a rule that one approaching a railroad crossing upon a public highway must stop, look and listen at a convenient distance from the track before venturing upon it. Failure to do this is negligence which will prevent a recovery: Myers v Railroad Co., 150 Pa. 386.

Cited further on the question of contributory negligence: Marland v. Railroad Co., 123 Pa. 487; Derk v. Railroad Co., 164 Pa. 243; Plummer v. Railroad Co., 168 Pa. 62; Gleim v. Receivers, 181 Pa. 387; Hartman v. Receivers, 182 Pa. 172; Sullivan v. Railroad Co., 175 Pa. 361; Seamans v. Railroad Co., 174 Pa. 421.

John M. Garman, with him T. D. Garman, for appellee. -- If the plaintiff's evidence leaves the fact in doubt, the evidence of contributory negligence on both sides is for the jury: Beach on Contributory Negligence (2d ed.), 432, 449.

In actions to recover damages for death or injuries at graded crossings where the facts are simple, and the evidence by which they are presented is involved in no uncertainty, their legal value is for the court to determine, but where the evidence is conflicting or the facts are left in doubt, the conclusions are to be drawn by the jury: Davidson v. Railway Co., 171 Pa. 522.

The cases quoted by the appellant's counsel are undoubtedly the law on the facts of those respective cases, but they failed to note that there was quite a distinction: Myers v. Railroad Co., 150 Pa. 386.

The whole line of decisions quoted by appellants simply demonstrates that each case is a law unto itself and that the principle quoted heretofore from Davidson v. Railway Co., supra, is the principle that must be applied. And we feel perfectly safe in submitting this case to the court upon the evidence, satisfied that by applying that principle, it will find that the facts are involved in uncertainty, are left in doubt, and that the conclusions should be for the jury.

In Ellis v. Railroad Co., 138 Pa. 506, Chief Justice Paxson said: " The question whether a traveler in a given case has stopped at the best place is necessarily a question of fact, not of law. If I am right in this it must as a general rule be passed upon by a jury:" Whitman v. Railroad Co., 156 Pa. 175.

Before Rice, P. J., Beaver, Orlady, Smith, W. W. Porter, W. D. Porter and Beeber, JJ.

OPINION

W. D. PORTER, J.

This record presents but a single question under the assignments of error; whether, under all the evidence, the court below should have affirmed the request for binding instructions presented by defendant. The evidence as to the alleged negligence of the servants of the defendant company, in failing to give warning of the approach of the train to the grade crossing, was such as to carry the case to the jury upon that question.

The only question, therefore, now presented for consideration is whether the undisputed facts presented such a case as to require the court to determine, as matter of law, that the conduct of plaintiff involved contributory negligence, which must prevent a recovery. The plaintiff testified that he stopped, looked and listened at a point somewhat distant from the track, before attempting to pass over the grade crossing at which he was injured, and this further narrows the present inquiry to the single question, Did the plaintiff stop at a proper place to ascertain if a train was approaching?

The general rules by which the conduct of persons passing over railroad tracks is to be governed are too well settled to require discussion. Whether such persons have come up to the measure of care required is sometimes a question free from doubt as to the facts, and is to be determined as a question of law, but when the facts are in dispute, or the inferences to be drawn from them are not clear, it becomes a question for the jury. In an action to recover damages for injuries received at a grade crossing, if the undisputed facts establish that the plaintiff did not stop at a proper place to look and listen, it is the duty of the court to declare the law adversely to the right to recover, but if the evidence is conflicting, or the facts are left in doubt, the conclusions are to be drawn by the jury: The Central R. R. Co. of N.J. v. Feller, 84 Pa. 226; Urias v. Pennsylvania R. R., 152 Pa. 326; McGill v. Pittsburgh & Western Ry., 152 Pa. 331; Whitman v. Pennsylvania R. R., 156 Pa. 175; Davidson v. Lake Shore R. R., 171 Pa. 522. The fact that there is a conflict of evidence upon some other question in the case is not pertinent to the inquiry; the dispute must be as to facts which are material to the question of plaintiff's negligence. If the plaintiff's evidence establishes his own negligence and the evidence produced by defendant simply tends to make that negligence more clearly apparent, that is not such a dispute as to facts as will justify the court in submitting the question to the jury.

In the present case, the plaintiff testified that he did stop at a point distant from the crossing, and witnesses on behalf of defendant testified that the plaintiff did not stop at any place. Here was a dispute as to the facts; but if the evidence most favorable to plaintiff established that he stopped at a place where he could not see and then drove on passing a point, with which he was familiar, from which he could have seen the track for a considerable distance, where reasonable prudence dictated that he should have stopped, looked and listened, and drove on to the track directly in front of a train, the question was one of law. The evidence on behalf of plaintiff established the following facts:...