Smith v. Baltimore & Ohio R. R.

Opinion by

Mr. Chief Justice Sterrett,

As clearly appears from the testimony, this case involved the questions of defendant company’s negligence and plaintiff’s contributory negligence. As to the former, it was alleged and testimony was introduced tending to prove (1) that the train, by which plaintiff was injured, was running at a reckless and dangerously high rate of speed; (2) that the public crossing was thus approached and passed over without any signal or warning to plaintiff and others who had occasion to use the same; and (3) that the company carelessly and negligently placed box cars, lumber, etc., on and near the side track opposite the crossing, and thereby obstructed the view which otherwise might have been had of the approaching train.

As to the alleged contributory negligence, it was contended that if plaintiff did stop, look and listen before attempting to cross defendant’s track, as he testified, he did not do so at the proper place. The testimony bearing on each of said questions was more or less conflicting, and it was also of such a character that inferences of fact had to be drawn therefrom. On both questions of negligence and contributory negligence the case was clearly for the jury, and the learned trial judge could riot have withdrawn it from them without invading their province and assuming the self-imposed task of drawing inferences of fact from the testimony, and determining disputed questions of fact. To have done so would have been manifest error: Railroad Co. v. Barnett, 59 Pa. 264; McNeal v. Railway Co., 131 Pa. 184; Ellis v. Railroad Co., 138 Pa. 506; McGill v. Railway Co., 152 Pa. 331; Whitman v. Penna. R. Co., 156 Pa. 175. The case was therefore properly submitted to the jury; and it was given to them in a clear and comprehensive charge that appears to be free from any error of which the defendant has any just reason to complain.

In affirming plaintiff’s first point, the jury were correctly instructed that if they found “ the crossing where the accident occurred was unusually dangerous, and the view of the railroad track was obstructed by the box cars, lumber, etc., which had been placed there by the defendant company, then it was the duty of the employees of the company to use greater care and caution in running the train over the crossing; and if the persons in control of the train did not use such care and prudence as were commensurate with the danger, either by failure to give proper signals at a proper time and place, or in passing over the crossing at improper speed, and if the plaintiff was free from negligence, the verdict should be in favor of the plaintiff.” The question of defendant’s negligence was thus fairly presented to the jury; and this instruction is not assigned as error.

In portions of the charge, recited in the first three specifications, the jury were instructed, as to the question of contributory negligence, substantially thus: “ Another fact arises for the jury to determine, whether or not the plaintiff before attempting to cross the track actually stopped and looked and listened at the right place for observing the condition of said track. It is for you to determine from all the evidence whether he exercised proper care and caution, — whether he stopped at a proper place, where he could properly observe the tracks of the railroad to the east and west of the crossing.” Again, in answering plaintiff’s point recited in the fourth specification as to testimony showing compliance with the “ stop, look and listen ” rule, the jury were instructed that if they found from the evidence that plaintiff stopped at a proper place or places, and properly exercised his senses of sight and hearing, he would not be guilty of contributory negligence, and if they further found that the defendant company was guilty of negligence, plaintiff would be entitled to recover.

There is certainly nothing in either of these first four specifications of which defendant company should complain. The instructions therein recited are quite as favorable as it was entitled to. “ Negligence is always a question for the jury where there are any doubts as to the facts, or as to the inferences to be drawn from them: ” Penna. R. Co. v. Barnett, 59 Pa. 264; McGill v. Railway Co., 152 Pa. 333; Whitman v. Penna. R. Co., 156 Pa. 175.

It also follows from what has been said that there was no error in refusing to affirm defendant’s point recited in the fifth specification.

There appears to be no error in the remaining specifications, sixth to ninth inclusive. The answers to points recited in the two former are quite sufficient. Defendant was not entitled to anything more favorable.

In the circumstances, binding instructions to find for defendant on either of the grounds stated in the eighth and ninth specifications, respectively, would have been error. As already observed, the case was clearly for the jury on both questions.

Judgment affirmed.