Pittsburgh, Fort Wayne & Chicago Railroad v. Evans , 1867 Pa. LEXIS 7 ( 1867 )

The opinion of the court was delivered, by

Woodward, C. J.

The leading of the jury to adopt a special verdict was well, for there is no more satisfactory mode of deciding causes than upon special verdicts. But it is essential to a special verdict that it contain all the facts upon which the judgment of the court is to rest. Nothing is to be taken by implication or intendment where there is a special verdict; but whatever is not found in it is supposed not to exist. This is the doctrine of the cases cited in the argument.

The case in hand illustrates the propriety of the rule. The plaintiff, a butcher, residing in the suburbs of Allegheny City, sues the railroad company for an injury he sustained from a locomotive passing along their road, at the moment he was about to cross it on his way to the Pittsburgh market-house; but the special verdict fails to find that the plaintiff was travelling along a public street in pursuit of his lawful business, and was compelled to cross the railroad to reach his point of destination. For aught that appears in the special verdict, he was unnecessarily upon the railroad — may have been there wantonly and for mischievous purposes. The only account it gives of the plaintiff’s presence there is, that he knew of the crossing and stopped, and looked, and listened for the locomotive, and that he passed on to the track, exercising the care which a prudent man would exercise in similar circumstances.

Now, unless he was a traveller, he had no right to be on the track of the road. But all the facts to show that he was lawfully there are omitted from the special verdict. Yet these facts must be the basis of a judgment in his favor, and if their absence from the special verdict be excused on the ground that they were undisputed facts, just such was the excuse unsuccessfully urged in Wallingford v. Dunlap, 2 Harris 31.

Again, the special verdict finds that the defendants were running their engine at a proper rate of speed, and were ringing the engine-bell, which was a suitable bell for the purpose. Then it established that the defendants were in the lawful use of their railroad, w'hilst it is not found that the jflaintiff was lawfully upon it. How could a court render judgment for the plaintiff and against the defendant upon such a finding ?

But it is also found that the defendants had not a sufficient head-light, and had no flagman at the crossing, as it was their duty to have. Out of this an inference of negligence might arise for the jury to find — but they did not find it, and even if they had, the court could not have rendered judgment for the plaintiff without his satisfying the jury that he was lawfully upon the road, and guilty of no negligence; for it is a settled principle with us, that a plaintiff cannot recover damages for an injury that results from a concurrence of his own negligence with that of the defendant. We think there was error- in rendering a judgment for the plaintiff upon such a special verdict.

And there was error also in the instructions upon the point of negligence. The fault here was more of omission than of commission. It was the duty of the judge under the points submitted, to instruct the jury fully and plainly upon the law of negligence, and he undertook to do so ; but we cannot see that he gave them any rule whatever. He said, very truly, that it is not every kind of negligence which will render a party liable for consequent injury; but he failed to say what kind of negligence would and what would nob render a party liable.

Negligence is generally a mixed question of law and fact, and what renders special verdicts so proper in these railroad cases is, that if they ascertain all-the material facts, the undisputed as well as the disputed, the question of negligence then becomes exclusively a question of law, and may be dealt with accordingly. This is a much better way of trying causes than to leave to the jury the application of the law to-the facts, for out of this grows the practice of some judges of wholly committing the question of negligence to the jury. However, as the court undertook to instruct the jury upon the law of negligence in this case, and they decided that a sufficient head-light and a flagman were wanting, hereby showing that they meant to pass upon the subject of negligence, the instructions should have been more full, — to this effect: — That the plaintiff had a right to pass along the street and cross the railroad in pursuit of his usual avocations; that on approaching the railroad it was his duty to look and listen for an approaching locomotive, and if he saw or heard one coming to get himself out of the reach of it; that he had no right to stop upon the railroad, nor so near it as to be struck by the locomotive or the train; that if he might have heard or seen the train approaching, or if he sa\i it and mistook the track it was upon, it was negligence in him not to exercise his senses correctly and place himself out of danger. That it was the right of the defendants to run locomotives upon their road at the speed that is usual in cities and towns ; that in approaching grade-crossings they were bound to give signals by a bell, a whistle, a head-light or a flagman, or such other device as AYOuld be sufficient to give people of ordinary prudence notice of their approach, and that any neglect of these duties on the part of either party would be culpable negligence, and if the accident resulted from such negligence on the part of both parties, neither could recover against the other. But if it happened wholly in consequence of the negligence of the defendant, and without the concurrence of negligence on part of the plaintiff, he would be entitled to recover damages.

That we may be understood, we repeat that if the court mean the jury shall report the bare facts of the case, they are not bound to give such instructions even though called on to do so, for the time for their opinion will come when they enter judgment on the verdict; but if, instead of leaving to the jury the mere ascertainment of facts and damages, they undertake to instruct them upon the law of negligence, nothing short of something to the above effect would seem to us to be an adequate presentation of this case.

As to the amendment that was allowed, we do not think it within the terms of the Act of Assembly; but we see nothing upon the record to satisfy us that the “ railroad” and the “ railway” companies were different corporations, and hence we conclude the court found them to be the same corporation, and only corrected a very unimportant misnomer, and in that we see no error.

The judgment is reversed, and a venire facias de novo is awarded.