In thе court below, John Moore, a citizen of Delaware and administrator of Earl H. Moore, deceased, recovered a verdict against the Baltimore & Ohio Railroad Company, a corporate citizen of Maryland, for damages caused by said company by running over and killing the decedent. On entry of judgment thereon, the railroad sued out this writ of error.' The facts and testimony pertinent to the decision of the single question to which we address ourselves in'this opinion are these:
The decedent, a boy of 10, came on foot to a public road grade crossing of the railroad some 500 yards northeast of what was known as the Kiamensi crossing of the railroad. He was seen standing at the crossing waiting for a freight train to pass south bound on the track nearest him. Near this time an express was approaching north bound on the track beyond. Subsеquently the boy’s body was found north of the crossing at a distance variously testified to from 25 to 400 feet, and his cap from 25 to 110 feet. No one saw the accident. The plaintiff contended the boy was killed while attempting to follow the road across the tracks; the defendant that he was struсk while trespassing along the track. At the trial, the court, over defendant’s objection, admitted testimony of two witnesses who said they had narrowly escaped injury at the crossing, and the question involved is the alleged error of the court in so doing. Heller, one of these two witnesses, testified as follows:
“Q. How did you happen to be familiar? A. I almost lost my harness there. I came pretty near getting hit with the train there.
“Q. You say you are familiar with this crossing? A. Yes, sir.
“Q. Wore the conditions at that crossing with respect to obstruction during a year prior to May 1, 1924, substantially the same as they were in May, 1924? A. Yes, sir; they were very bad.
“Q. During that year did you or not have a narrow escape at that crossing? A. Yes, sir.
“Q. State what experience, if any, with respect to the crossing, you had during the prior year. A. I had to travel that crossing day in and day out. I had to cross that crossing to deliver milk.
“Q. During that time, what, if anything, happened to you at that crossing? A. How is that?
“Q. What, if anything, hapрened to you at that crossing? A. Did anything happen to me?
“Q. Whether you had or nearly had an accident? A. I nearly had an accident.”
In refusing a new trial the court filed an opinion, in which it cited the cases pro and con, but did not decide, the question, saying it was convinced “that the admissiоn of the testimony in question did not affect the substantial rights of the parties,” and that consequently it does not afford a ground for a new trial. Judicial Code, § 269; 40 Stat. 1181 (Comp. St. Ann. Supp. 1919, § 1246). We cannot agree with this. The record shows there was a colloquy over the admission of the testimony, that the decisiоns cited by the court in support of its admission were called to its attention, and the judge, in admitting the testimony, said, and this was its final word to the jury on the subject, for no qualification of it was made in the charge: “Consequently, while I admit it for such value and weight that may bo given it by the jury, it is nevertheless evidence оf such a character that should be considered by you most carefully in determining whether or not it tends to establish the dangerous character.” Dignified by discussion, decided competent by admission, and emphasized as to be considered most carefully by the jury, we feel its admission, if wrong, must have, injuriоusly affected the defendant’s side of the ease.
This brings us to the question of its admissibility. No statute or decision of the stale of Delaware — and, we add, of the other states comprising the Third Circuit — is shown which warrant the admission of such testimony. Are we constrained by federal decision to take a new departure, and now admit testimony such as was here received? In the first place, every damage ease stands on its own particular facts. In this ease, we have a pedestrian stopping at a grade crossing awaiting the passage of a freight train in one direction. We have a fast passenger train oncoming in the opposite direction on another track, which was hidden from , view by the freight train. The danger con-, fronting the boy was the grave danger which a double-track railroad crossing is to every one who walks over it, and, being necessarily' dangerous, due care on the part of the railroad in operating, and the pedestrian in walking across, were necessary. In an issue based on this situation — a pedestrian stopped near the track and faced by a passing freight train; his view of the other track shut off, and with no knowlеdge of the approach of a fast express train on the other track; and the relative duties of both the boy and the railroad to both use due care — is such a situation, affected, enlightened, by the fact that a man who was driving a slow-going milk wagon had, under some undisclosed situation, a narrow escape at this crossing.
Turning to the federal cases cited by the judge in his opinion, we note that the only one of the federal decisions cited that is binding on the federal courts of this circuit is that of the Supreme Court of the United States in Columbia v. Arnes,
Recognizing the principle thаt testimony of other accidents is inadmissible “where it tended to introduce collateral issues and thus mislead the jury from the matter directly in controversy,” the court called attention to the fact that by the pleading “the' character of the place” was in issue, and these former аccidents, as it said, “were proved simply as circumstances which, with other evidence, tended to show the dangerous character of the sidewalk in its unguarded condition. The frequency of accidents at a particular place would seem to be good evidence of its dangerous 'character; at least, it is some evidence to that effect. Persons are not wont to seek such places, and do not willingly fall into them. Here the character, of the place was one of the subjects of inquiry to which attention was called by the nature of the action and the pleadings, and the defendant should have been prepared to show-its real character in the face of any proof bearing on that subject.” In -addition, attention was called to the fact that notice was thereby brought home to the city as follows: “Besides this, as publicity was necessarily given to the accident, they also tended to show that the dangerous .character of the locality was brought to the attention of the city authorities.”
It will thus be seen that what the court had before it was a sidewalk fault, about which fault there was no dispute, and that a man walking along it as everybody -walked had the same fall that other walkers had. The issue was the negligence of the city in maintaining such an abrupt break in the sidewalk, and negligence was established by two things: Hirst, its liability to cause falls; and, secondly, the negligence of the city in not changing it. The testimony of the city’s policeman tended to show the frequent falls incident to its ordinary use by passers-by j'. and, second, notice to the city through the publicity of such.falls and the knowledge of its servant, the policeman.
A 'Study of this case and- of the authori- ■■ ties cited by the Supreme Court in its support shows that the basic thing in each of them was that a specific physical defect was a negligent structure, whose existence, if proved, constituted the negligence on which the ease was based. Noting each of them, Quinlan v. Utica,
- In House v. Metcalf,
Based on this case of the Supreme Court of the United States as a warrant, it is now sought in this present case to justify the admission of testimony of a wholly different character. In the eases cited the issue was the dangerous character per se of the offending article, the abrupt step in the sidewalk, the cross-waterway in the road, the open cellar door, the ridge of ice across the sidewalk, the open unlighted drawbridge approach, the startling and needless shriek of a locomotive, the high, moving, overshot water wheel near the highway, the lumber pile near the unguarded bridge, in all of which the negligent or nonnegligent character of a concrete object was involved, and where the testimony admitted went to, tho faulty, or nonfaulty, character of the structure. But in the present case we have a public road and railroad intersecting, both properly constructed; both pedestrians and trains can lawfully use the crossing, and the issue here is not the character of the crossing, hut the alleged negligent use of the crossing by the railroad. The testimony here admitted was that, in the opinion of a witness who attempted to cross in a wagon, he had had a narrow escape, and the jury told that this was “evidence of such' a character that should be bonsidered by you most carefully in determining whether or not it tends to establish thе dangerous character of the crossing.” In excluding such testimony a court is certain it is adhering to the issue raised by the pleadings, while in admitting it a court is uncertain as to how far it may influence a jury and divert attention from such pleaded issue.
The experience of courts is that there is a constant danger, in damage cases, of juries deciding them on irrelevant issues, and we have no inclination, in this circuit, to increase that danger by diverting a jury’s attention from the accident case before them to some other accident.
"We are consequently constrained on this single ground to reverse this case, which otherwise was faultlessly tried.