Gates v. Pennsylvania R. R.

Opinion by

Mr. Chief Justice Sterrett,

On the motion to quash the writ in this case, the only question is, whether plaintiff’s appeal from the judgment non obstante veredicto, resulting in a reversal thereof and entry of judgment in his favor on the verdict, is a bar to this appeal by defendant. We are of opinion that it is not.

On the trial in the court below, the defence was twofold: («) that defendant was not liable, because the accident occurred within the lines of the public highway, and plaintiff’s remedy, if he had any, was against the township, and not against defendant company, and (5) that plaintiff’s contributory negligence was a bar to his recovery.

The court having refused to withdraw the case from the jury on the ground of contributory negligence, submitted that question to them, and they found in plaintiff’s favor, and assessed his damages, subject to the opinion of the court on the reserved question, raised by the first mentioned ground of de-. fence. Afterwards the question of law thus reserved was decided in favor of defendant, and thereupon judgment was entered against the plaintiff non obstante veredicto. From that he appealed, and the only question that was dr could be before us then was the validity of that judgment. In an opinion by our brother Mitchele, reported in 150 Pa. 50, we held that it was erroneous and entered judgment on the verdict, in favor of plaintiff, for the amount found by the jury. The record was remitted, and the effect of our reversal, etc., was to place the parties just where they would have been, if-the court below had, in the first place, entered the proper judgment. It therefore follows that defendant was entitled to appeal from the rulings of the court below on its second ground of defence, viz.: plaintiff’s alleged contributory negligence. On those rulings, defendant had not theretofore had a hearing in this court.

Appellant’s right to have errors, assigned to rulings of the court below on the subject of contributory negligence, reviewed by this court is well established. “ A judgment upon a writ of error sued out by one of the parties, is no bar to a subsequent writ of error at the suit of the other party, in which different errors are assigned: ” Ormsby v. Ihmsen, 34 Pa. 462. In Rand v. King, 134 Pa. 641, it was held that the modes of reviewing cases in this court by writ of error, certiorari and appeal which were in use prior to the act to May 9,1889, P. L. 158, still remain applicable to same kinds of cases, within same limits and with same effect as before; the only change made by that act is that now they are all called by the same name. As was well said in that case, “ the act does not profess to extend the right of review, to change its extent in cases already provided for, or to modify in any manner its exercise. It simply provides that dissimilar proceedings shall be called by the same name. An appeal, in name, may therefore be a writ of error or certiorari in legal effect, and it is necessary, in every case, to look into the record and determine at the outset of our examination whether what is ‘ called an appeal ’ is such in fact, or is a writ of error or a certiorari. The practical effect of calling proceedings so essentially unlike by the same name, is to obscure and divert attention from the peculiar characteristics of each. This increases the sense of uncertainty on the part of the practitioner, and the labor on the part of the appellate court.”

It follows from what has been said that the motion to quash should be denied.

The burden of defendant’s complaint, in the first and second specifications of error, is the refusal of the court to hold, as matter of law, that, under the evidence, plaintiff was guilty of contributory negligence, and the submission of that question to the jury.

An examination of the evidence convinces us that the action of the court was not erroneous. While there is some testimony tending to show that plaintiff was perhaps not as careful as he might have been, it is not of such a character as would have warranted the court in saying, as matter of law, that he was guilty of contributory negligence, and hence there was no error in submitting it, under proper instructions, to the constitutional triers of fact. Comprehensively defined, “ negligence is the absence of care according to the circumstances ; ” and it is always a question for the jury where there is a reasonable doubt, either as to the facts, or inferences of fact to be drawn from the testimony. When the measure of duty is ordinary and reasonable care, and when the degree of care varies according to the circumstances, the question of negligence is always for the jury; but, when facts constituting negligence are either admitted or conclusively established by undisputed evidence, it is of course the duty of the court to declare the law applicable thereto. These well settled principle’s are recognized in a long line of cases, among the later of which are the following : Railroad Co. v. White, 88 Pa. 327; Corbalis v. Newberry Twp., 132 Pa. 9 ; Dalton v. Tyrone Twp., 137 Pa. 18 ; Bradwell v. Railway Co., 139 Pa. 404; Baker v. Borough of North East, 151 Pa. 234; McGill v. Pittsburgh & Western Ry Co., 152 Pa. 331.

In the ease at bar there are no admitted or uncontroverted facts that would have justified the court in holding as requested by defendant’s first point.

For reasons already suggested, it would have been error to have affirmed defendant’s third point. Conceding, for argument sake merely, that plaintiff was running when he fell, it would by no means follow that he was guilty of contributory negligence. The learned judge’s answer to that point was quite as favorable to defendant as it should have been.

The case depended on questions of fact which were exclusively for the jury. They were fairly submitted, with instructions which appear to be adequate and free from any error that . would justify a reversal of the judgment.

Judgment affirmed.