Lake Shore & M. S. Ry. Co. v. Frantz

Opinion,

Mr. Justice Mitchell :

The testimony on behalf of the plaintiff was to the effect that a public crossing in a city street was partially obstructed by standing cars: Penna. R. Co. v. Ackerman, 74 Pa. 265 ; Penna. R. Co. v. Horst, 110 Pa. 226 ; and this crossing, the view of which was thus obstructed, was approached by a handcar at the rate of ten miles an hour, noiselessly, and without warning of any kind until the collision was imminent, and that the safety-gates which were there in accordance with the requirements of the city ordinances, were open, and thus tended to mislead the plaintiff. This evidence made a clear prima facie case of negligence for the jury. A nonsuit therefore could only be granted on the ground of manifest contributory negligence of the plaintiff. This we do not find. There were a number of tracks, and the evidence is strong that the plaintiff stopped, looked and listened before crossing the 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.

For the same reasons the defendant’s first point, which assumed as an established fact that “ plaintiff’s own evidence showed there was such a point,” might have been refused entirely, and tbe qualified answer of the court did defendant no injury. The first and second assignments of error are therefore not sustained.

The third and fourth assignments have given us more trouble, and on these points this is a very close case. Portions of the charge and of the answer to plaintiff’s first point, especially the phrases, “ the fact that the gates were up would be notice to plaintiff that there was no danger in crossing the track ; it would be an invitation to him to cross the track,” and “ if the jury find that there Avas no warning given at all, the plaintiff had a right to suppose that the track was clear,” are certainly erroneous if applied to the plaintiff’s conduct, or used in defining to the jury the standard of contributory negligence. The duty to stop, look and listen is absolute and unyielding. It is for the protection of the train and its occupants, as much or more than for that of travelers on the highway, and no amount of negligence on the part of the defendant can absolve tbe plaintiff from its obligation. The fact that tbe safety-gates were up did not and could not release tbe plaintiff from tbe necessity of observing the imperative rule for all railroad crossings. As said by tbe present Chief Justice in the closely similar case of Greenwood v. Railroad Co., 124 Pa. 572, a plaintiff “has no right to omit the ordinary precautions when approaching a railroad crossing merely because be finds the gates up.”

But while tbe fact that the gates were raised is no excuse for the failure of a plaintiff to stop, look and listen, yet on the other hand it is some evidence of negligence on the part of the defendant. Its tendency is certainly to give the approaching traveler the impression that the crossing is safe, and thereby to blunt the edge of bis caution. It may of course be susceptible of full explanation. As said in Greenwood v. Railroad Co., supra, “ machinery of all kinds is liable to get out of order, and may do so just at tbe critical moment of tin; approach of a train.” But unexplained it is evidence of negligence, and. as such is a proper subject of comment in tbe charge of the court. The passages already quoted would be clearly erroneous as applied to tlie plaintiff’s negligence, but they Avould equally clearly be correct if applied to the negligence of the defendant. They must be examined and judged in connection v/itb their immediate context. Tbe passage from the charge that the gates being up was an invitation to cross, folIoavs immediately after a refusal to say that it was negligence in law, and a reference of it to tbe jury as a question of negligence in fact, and is followed in tbe same immediate connection by tlie qualification that “ at tbe same time, it would not excuse him from exercising due care in approaching and crossing tbe traek, and finding out whether or not tliere were approaching cars ; ” and what was meant by due care, is defined, a few sentences farther on, by the instruction that it “ was the duty of the plaintiff to use care in approaching the tracks, to stop and look and listen for approaching cars.”

The answer to the plaintiff’s first point is very similar, and if regarded separately may also be taken as applied either to the plaintiff’s or the defendant’s conduct, but taken with its context it appears to apply to the defendant, and this is made entirely clear by the unqualified affirmance of defendant’s third point, that the fact of the gates being open would not excuse the plaintiff from the duty of stopping to look and listen before attempting to cross.

Taking the passages as a whole, with what preceded and followed, though the distinction between what was meant to define the plaintiff’s own duty, and what was said with reference to defendant’s negligence, is not so clearly expressed as would be desirable, yet on a fair survey of the general effect we cannot say that it did not give the jury correct instruction as to the law.

The same course of remark is applicable to the portion of the charge relating to the damages. The fifth error complained of is the charge that the jury may consider the pain and suffering the plaintiff “ has undergone, and may undergo in the future.” The expression is not felicitous, and there is a notable absence throughout the charge of the word compensation, which should always be made prominent in cases of this class. See remarks on this subject in Collins v. Leafey, 124 Pa. 203. But the idea of compensation was clearly in the judge’s mind and was fairly brought before the jury in the enumeration of the elements of the damages they should award if they should find for the plaintiff. These are stated by the learned judge in the general charge to be the expenses of plaintiff’s sickness, the loss of wages he has suffered and will suffer, and the pain and suffering he “has undergone and may undergo,” and in the answer to plaintiff’s fourth point, where the pain and suffering are expressly limited to that “ already experienced, and likely to be yet experienced.” Taking all this together, the idea of compensation, though not made as distinct and prominent as is desirable, was fairly put before the jury, and it would be hypercritical and unjust to separate the single phrase “ may undergo ” from its context, and say that it gave the jury an unbridled license in the ascertainment of the damages, or left them without any guide at all as in Phila. & R. R. Co. v. Adams, 89 Pa. 31, and Collins v. Leafey, 124 Pa. 203.

Though open to criticism in the several points reviewed, the charge as a whole contained no substantial error.

Judgment affirmed.