Ellis v. Lake Shore Etc. R. , 138 Pa. 506 ( 1891 )

OPINION,

Me. Chief .Justice Paxson:

We do not think it was error to decline to affirm'the defendant’s first point. The vice of the point is that it assumed that the railroad company had performed its whole duty, provided the whistle was sounded and the bell rung at a proper distance from the crossing. But there was another element in the case which the jury were necessarily compelled to pass upon, viz., the rate of speed at which the train approached the crossing. The character of the crossing itself was a circumstance which could not be ignored, and which necessarily affected the relative duties of both the plaintiff and the company. If it was a dangerous crossing, as was practically admitted on both sides, it was the duty of the plaintiff to exercise the more care in approaching it. At the same time, it was equally the duty of the defendant company to see that then1 trains passed it at a reasonable rate of speed, proportioned to the danger. In other words, negligence is the absence of care according to the circumstances, and must be measured by the apparent danger. While a high rate of speed is allowable, and perhaps necessary, in rural districts, the same rate of speed might be attended with peril to life in more thickly populated sections, and at dangerous crossings.

By the defendant’s second point the learned judge was asked to instruct the jury that if they “ find that there were obstructions in the way which prevented the plaintiff from seeing down the track as he approached the same, and from the point where he testifies he stopped, then it was his duty as a prudent man not only to look and listen, but also to get out of his wagon and go upon the track and look for approaching trains, and if necessary to lead his horses across. Anything short of this would be contributory negligence on his part, and there coulcL be no recovery in this case.”

The learned judge answer'ed this point as follows:

“ The evidence on the part of the plaintiff tends to show that the plaintiff had a good view of this road from his wagon up and down at the point where he first stopped, and between that and the point where the next stop was made, as well as at the point where he stopped the last time. We are not warranted in affirming this second proposition of law. We refuse it; leaving it to the jury to say whether the plaintiff did stop and look and listen at a place where he could see up and down the track, and whether he used due care and diligence in approaching that crossing as ought to be used by a man of ordinary care and prudence.”

The above point was evidently based upon Penna. R. Co. v. Beale, 78 Pa. 504, where the rule is laid down that it is the duty of a traveler when about to cross a railroad, if he cannot see the track, to stop, look, and listen, and, if necessary, to get out and lead his horse. This principle is there stated to be an unbending rule, and its neglect to be negligence per se. We have enforced this principle in a number of later eases which it is not necessary to cite.

The difference between the case cited and the one in hand is this: In the former, the person injured did not stop ; while, in the latter, the plaintiff stopped twice, and both looked and listened. It appears that the road which the plaintiff was traveling crosses two railroads about three hundred feet apart. The plaintiff testified that before he crossed the first road, the New Castle & Franklin, he stopped on a bridge from where he had a full view of both roads, and listened and looked for trains. He further said: “After we crossed the New Castle & Franklin railroad, I proceeded to cross the Jamestown & Franklin, or Lake Shore railroad, (defendant company’s road.) As I drove along there I was standing up back of the seat. As I drove across between the New Castle & Franklin and Lake Shore railroads, I think I had full view of the Lake Shore road towards Stoneboro, the most of the distance. I neither heard nor saw any train on the Lake Shore road; everything was perfectly still. Before I undertook to cross, the Lake Shore road, I stopped, and looked and listened for trains on it, because there was considerable lumber piled up on it. At the point where I stopped, I think it was about two rods from the Lake Shore road; it might have been a little more or less. At that time I neither saw nor heard any trains on the road.”

It will thus be seen that the plaintiff so far complied with the rule laid down in Penna. R. Co. v. Beale, as to stop, look, and listen twice before he attempted to cross defendant’s road. Did he stop at the right place, and was it his duty to go up on the track ? The latter can only be necessary when he can get a view of it in no other way, which does not appear to have been the case in this instance. The first branch of the inquiry was for the jury, and it would have been error in the learned judge to have ruled it as a question of law. In Lake Shore R. Co. v. Frantz, 127 Pa. 297, the plaintiff was injured by the collision of his wagon and a hand-car at a public crossing. It was partially obstructed by standing cars. The defendant moved for a compulsory nonsuit on the ground of contributory negligence, alleging that it was the duty of the plaintiff to stop, look, and listen at a point where he could see the main tracks of defendant’s railroad. The court below refused to grant a nonsuit, and also refused to charge that the plaintiff was guilty of contributory negligence. Upon appeal to this court it was said, by Mr. Justice Mitchell : “ A nonsuit could only be granted on the ground of manifest contributory negligence of the plaintiff. This we do not find. There were a number oE tracks, and the evidence is strong that the plaintiff stopped, looked, and listened before crossing tbe first. It might still have been his duty to stop again before going upon the track of the defendant company on which the collision took place, but the evidence does not enable us to say so as a matter of law. It is far from clear that the place where plaintiff stopped was not the best, or that there was any safe place for a second and better view. It was proper, therefore, that the case should be left to the jury, and the nonsuit was rightly refused.” In McNeal v. Railway Co., 181 Pa. 184, the plaintiff stopped within fifty feet of the track, and it was presumed he looked and listened, and it was left to the jury to say whether he had exercised due care. Penna. R. Co. v. Beale does not appear to have been referred to in that case. While the rule to stop, look, and listen is an invaluable one, and may be properly declared by the court as a matter of law, yet 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.

We find no error in the qualification which the learned judge gave to the defendant’s third point. The rate of speed of a railroad train at a public grade crossing has been sufficiently referred to in the remarks upon the first assignment of error. A considerable portion of the charge of the court below is also assigned as error. We cannot say that the reference to the speed of the train was wrong. On the contrary, the charge in this respect was entirely fair. It is true he said to the jury: “ If that rate of speed was from forty-five to sixty miles an hour, as it is claimed on the part of the plaintiff,” etc. Here, the learned judge only stated what the plaintiff claimed as the rate of speed, and while no witness stated in terms, if I am correct in my examination of the testimony, that the train was running at the rate of sixty miles an hour, yet there was evidence from which the jurjr might have found the fact inferentially. On the other hand, the learned judge fairly stated what the defendant claimed as to speed. The testimony upon this point, as is usual in such cases, was vague and unsatisfactory.

Complaint was also made that the learned judge called attention to the fact that the engineer and fireman of the train were interested witnesses in one sense, although not affected by the verdict pecuniarily. What the learned judge said upon this point was entirely true, and it was proper to call the attention of the jury to it. There might have been a good ground of objection, had the learned judge referred only to these two witnesses. But he pointedly called the attention of the jury to tbs interest of the plaintiff and his two sons, and told them that it affected their credibility. The reference in each case was proper.

We need not notice the last assignment.^*

Judgment affirmed.

* “ Let us have peace: ” McKenney v. Faweett, ante, 344.