Pittsburg Electric Railway Co. v. Kelly ( 1896 )

Allen, J.

In the trial of this case the Court seems to have considered that ordinary negligence on the part of the plaintiff was conclusively established ; and in the second instruction told the jury that in order to recover the plaintiff must show that his injury was caused by the gross and wanton negligence of the motorman. This instruction was not warranted by the evidence in the case. Whether the plaintiff was chargeable with ordinary negligence contributing to his injury was an open question, which should have been left to the jury to determine. The findings of the jury in answer to special questions submitted exonerate the motorman, Moore, from purposely injuring the plaintiff, and also from gross and wanton negligence. It is even doubtful whether they do not exonerate him'from any culpable negligence. We think the Court erred in refusing to submit the 45th question. If the motorman, Moore, knew that Kelly’s hearing was defective, and knew that the man on the track -was Kelly, it would materially affect the question as to what would be reasonable care oil his part in propelling his car toward him. We have little difficulty in reaching the conclusion that the judgment must be reversed. The instructions were erroneous in that they require proof of gross and wanton negligence on the part of the defendant. This error was prejudicial to the rights of the plaintiff. The special findings of the jury clearly negatived the idea of wanton or intentional injury. The most difficult question for us to determine is whether or not the findings compel a judgment in favor of the defendant. The 28th question and answer are as follows: “Question. Was the plaintiff guilty of negligence which contributed to his injury? Answer. Yes, to some extent.” If the case had been submitted under proper instructions, and the other findings had, as in this case, negatived wanton or wilful injury, it would seem that such a finding would require that judgment be entered for the defendant. But the jury were here given to understand by the Court, that the plaintiff might recover notwithstanding his own negligence contributed to the injury, and that the vital question in the case was whether or not the negligence of the motorman was gross and wanton. The answer to the question, though in the affirmative, is qualified by the words “to some extent.” Juries cannot be expected to select words with- that nice discrimination and technical accuracy that may fairly be required of judges and counsel learned in the law. It does not seem a great stretch of language to say, when all the findings and all the evidence on which they are based are considered, that the jury meant merely to find that the plaintiff was guilty of slight negligence in failing to look to see whether a car was approaching at that particular time. His attention generally was very properly directed to the performance of the work in which he was engaged. While it was incumbent on him to take reasonable precautions for his own safety, the jury may have thought that he could not reasonably be expected to be at all times thinking about approaching cars and watching for them. Although it is found that the men working on the track were accustomed to get out of the way of approaching cars, it was the duty of the motorman to observe the track ahead of him, to regulate the movements of his car, and to look out for the safety of passengers he might be carrying and persons and property on the roadway. Whether he exercised reasonable care in propelling his car toward the gang of men working on the track, even though they were accustomed to step out of his way, was a matter within the province of the jury to determine. On the whole record, we seriously doubt whether the jury by this answer intended to find that the plaintiff was guilty of culpable negligence contributing to his injury. A judgment on the special findings ought not to be directed by this Court unless they are reasonably clear and unequivocal. We should be reasonably certain that we are not construing into the language employed by the jury a meaning they never intended.

The judgment will be reversed, and a new trial ordered.

Martin, C. J., concurring.