Simmons v. Pennsylvania Railroad , 199 Pa. 232 ( 1901 )

Opinion by

Mb. Justice Potteb,

There is no substantial reason for complaint in the portions of the charge assigned for error in the first and second specifications, when they are considered in the connection in which they were delivered. The learned trial judge first commented on the testimony offered upon the part of the plaintiff, and after-wards upon that offered upon the part of the defendant. An examination of the charge, shows that the rather sweeping terms used in referring to the persons testifying, were fairly limited to the evidence for the defendant, by the classification employed. These assignments are therefore overruled. The trial judge further instructed the jury that the fact of the safety gates having been lowered and kept down for a period of time longer than that allowed by the city ordinance, had nothing to do with the case. His instructions in this respect are assigned as error in the third and fourth specifications. The learned trial court was right. The lowering of the gates and keeping them down, could not be considered as the proximate cause of the accident. According to the plaintiff’s own testimony, and that of his witnesses, the horse was frightened by the escape of steam from the engine and the blowing of the whistle. The authorities cited by appellant in which certain ordinances were properly offered in evidence, were cases in which the proximate causes of the accidents lay in acts which were in themselves violations of the ordinances. In Foote v. American Product Company, 195 Pa. 195, the accident was caused by the failure to observe the rule of the road and the ordinance was introduced as evidence as to what the law of the road was. In Lederman v. Pennsylvania Railroad Co., 165 Pa. 118, the allegation was excess of speed, and, the ordinance was offered as evidence of what the lawful rate of speed was. For such purposes as these, ordinances are properly admitted ; but never for the purpose of showing that the violation of the terms of an ordinance in itself constitutes negligence. In the present case, the use of safety gates is manifestly a measure of prudence, intended for the prevention of accident. The fact that plaintiff was delayed by the lowering of the gates, and their being kept down for an unusual length of time, can have no bearing upon the question of defendant’s negligence in sounding the whistle of its engine, and in blowing off steam. There is no merit in the third and fourth assignments of error and they are, therefore, overruled. The instructions of the court upon the question of the defendant’s alleged negligence, are the subject of complaint, in the fifth, sixth, seventh and eighth assignments of error. They were argued together, and will be so considered here. Great stress is laid by appellant upon the statement by the trial judge in the course of his charge, that the reply of the engineer seemed to be that of a “ manly man.” We see no reason for criticism here. The court has a right to express an opinion as to the evidence or as to the witnesses; providing nothing is said to bind the juiy or preclude them from deciding the case for themselves on the evidence.

Among the points submitted by the defendant was the sixth, which was as follows : “ If the jury believe that the sounding of the whistle and blowing off steam, or either of these acts, was caused by the wilful and malicious conduct of an employee of the defendant, not acting in the lino of his duty, the defendant cannot be held responsible for such conduct, and the jury should find for the defendant.” The court did not affirm this point as it stood, but made an explanation to the jury of the law as applied to that phase of the ease, and in this explanation, it is alleged by the counsel for appellant, there was error. The question was fairly left to the jury to determine whether or not the act of the engineer in blowing the whistle and in letting off steam, was in the line of his duty. Since the scope of the servant’s employment is necessarily dependent on circumstances, a hard and fast rule cannot be laid down as to the scope of any particular employment; and it is ordinarily a question for the jury whether or not a particular act comes within the scope of a servant’s employment: Schimpf v. Harris, 185 Pa. 46; Guinney v. Hand, 153 Pa. 404. Under the circumstances of this case the only basis upon which the jury could conclude that the engineer was acting outside the line of Ms duty, was by finding that he blew the whistle and let off the steam, in absolute disregard of the dangerous predicament of the plaintiff; and that his action in so doing, was wilful and malicious and for the gratification of his own wanton purpose. But considered in connection with other parts of the charge, it is manifest that the court did not intend to give the jury any bindmg instruction as to the question of the engineer acting without the scope of his employment. It is very evident that the charge as a whole, could not have been misleading to the jury.

In response to the plamtiff’s third pomt for charge the jury were instructed: “ That a wanton and unnecessary blowing of the whistle of an engme, on a common highway crossing, is negligence M law.”

And again in the fourth point: “ That if the jury believe from the evidence that the engineer discharged, or blew off steam from the engme, while on a common crossing, and in an unusual and extraordinary manner, and that same caused the fright of plaintiff’s horse and subsequent injuries to plaintiff, then defendant is guilt of negligence and plaintiff is entitled to a verdict.” This latter point being properly qualified by calling the attention of the jury to the fact, that they must in addition consider whether plaintiff had exercised due care for his own safety.

And yet again by the averments of the plaintiff’s fifth point for charge, wMch was as follows : “ If the jury believe from the evidence that plaintiff’s horse was kmd and gentle, and that plaintiff exercised due care wMle waitmg the approach and passage of the train, and that his horse was frightened by either a wanton and unnecessary blowing of the whistle, or by an extraordinary blowing off of steam, or both, on a common crossing, then plaintiff is not guilty of contributory negligence and is entitled to a verdict.”

The verdict of the jury in favor of the defendant is necessarily predicated on a finding of all essential questions of fact as claimed by it; and there was an abundance of evidence to warrant the jury in so finding.

There is nothing in either of the specifications of error that calls for a reversal of the judgment.

Judgment is affirmed.