262 Pa. 307 | Pa. | 1918
Lead Opinion
Opinion by
This suit was brought by the plaintiff to recover damages for the death of her husband, who was killed at a grade crossing of the defendant company at Linfield, Montgomery County, Pennsylvania, on the first day of May, 1915. At the time of the accident Howard S. Benner, the husband of the appellee, was driving across the tracks of the railroad company in a one-horse buggy about half-past five in the afternoon.
The public road over this crossing is forty-eight feet wide, and is an old, well-defined road. Just before the public road crosses the railroad tracks, at the right-hand approaching the crossing from the east, there is a spur or side-track, leading from the freight station, which ends at the road with a bumper. At the time of the accident two or more box cars were standing close to the bumper, and this, with the freight house and freight shed, obscured the view at that point in the direction from which the train approached. The public highway crosses over five tracks. The first track is another siding, which is known as the Cold Storage Company siding, and runs in front of the station and down to the plant of the Cold Storage Company. The next track is the slow speed, northbound track. The third track is the fast speed, northbound track. The fourth track is the fast speed, southbound track. The fifth track is the slow speed, southbound track. At the time of the accident, according to the testimony, there were several box cars also on the cold storage siding; but the witnesses differ as to the precise location of these cars and the extent of the obstruction of the view.
If, therefore, Benner had stopped at a point sixteen and one-half feet from the first track he would have had some view of the track on which the train approached. The fact that his view was impeded by cars on the cold storage siding did not relieve him from the obligation to stop. It imposed a further duty to proceed with due care; but stopping in the first instance was absolutely essential.
Two witnesses were produced by the plaintiff, who saw the accident and the action of Benner as he approached the crossing. One, John Seeler, an intending passenger, was waiting on the station platform, on the southern end. This witness says that Benner drove up to the first track or siding, and that at a point actually on the tracks, with the horse’s front feet between the first track and the slow, northbound track, he stopped for a few seconds. The top of the buggy was up. The witness could not tell just what Benner did after he drove on the track. After stopping for a few seconds he drove on at a slow walk; immediately after he started a fast express train came around the curve, and Benner was struck and killed.
It is perfectly clear, therefore, from the' testimony offered by the plaintiff that Benner did not stop, look and listen before he crossed any of the tracks. It is true that he stopped on the tracks, but that is not a compliance with the rule.
The learned judge of the court below submitted the case to the jury and entered judgment on the verdict, assigning as. a reason therefor that as the accident did not happen on the cold storage siding the failure of Benner to stop before he entered on this track was not negligence. He further held that the question of whether or not he was negligent, as he was injured on one of the other tracks, under all the circumstances was to be submitted to the jury and determined by them. This is not the law. It is an absolute and unbending rule that a tráveler upon the public highway must stop, look and listen at a point before he crosses any tracks. If he has done this and then proceeds, the question whether or not he has exercised proper care in crossing the railroad as he proceeds and whether it is necessary for him to stop again is a question for the jury. But if he fails to stop, look and listen before he goes on any track he is thereby convicted of negligence, and, no matter what the other circumstances, he cannot recover.
In Ihrig v. Erie Railroad Company, 210 Pa. 98, it is said: “It is argued that the rule that a traveler before
What the appellee asks us to do in the present case is to make an exception of this case and to say that because Benner was not injured on the first track his failure to stop before crossing it did not produce the accident. This is bending the rule which has been declared to be unbending. No one can say that if he had stopped at a point before crossing the first track a sufficient length of time to make proper observation he would not have discovered the approach of the train, or if he had stopped and proceeded would have reached the scene of the accident soon enough to collide with the train that killed him. The fact that the first track was a siding did not relieve Benner from the obligation of the rule. This is clearly pointed out by the late Mr. Justice Potter in Peoples v. Penna. R. R. Co., 251 Pa. 275.
It is further argued that Benner was relieved from the obligation to stop because of the obstructions which prevented his view before crossing the cold storage siding, but if this be true, another duty was imposed upon him.
“Where a driver stops at a point where an obstruction prevents a proper view of the railroad he is about to cross, he must descend from his vehicle, and, if necessary, walk to a point where the prospect is clear”: Siever v. Pittsburgh, C., C. & St. L. R. R. Co., 252 Pa. 1; Earl v. Philadelphia & Reading Railway Co., 248 Pa. 193; Mankewicz v. Lehigh Valley R. R. Co., 214 Pa. 386; Kinter v. Penna. R. R. Co., 204 Pa. 497.
We therefore hold that the plaintiff’s case develops such evidence of negligence on the part of Benner, the decedent, that, notwithstanding the alleged negligence of the railway company, there can be no recovery.
The fifth, sixth and eighth assignments of error are sustained, and the judgment is reversed.
Dissenting Opinion
Dissenting Opinion by
October 7,1918:
The verdict and judgment below were for the plaintiff. This court now proposes to enter judgment for the defendant non obstante veredicto. In considering whether or not such a judgment ought to be entered, of course every fact and inference of fact, favorable to plaintiff, which a jury might find to be true, must be conclusively accepted as true; and every allegation of fact, unfavorable to plaintiff, which a jury might reject, must be rejected. Viewed in this light, and leaving out of consideration for the present the presumption of law hereinafter considered, the relevant facts of the case are as follows:
At Linfield, Montgomery County, Pennsylvania, a public road crosses the railroad tracks of the defendant company. At the time of the accident no safety gates, automatic bells, flagmen, or other devices were there to warn those about to cross the tracks. There were six tracks running, approximately north and south. Looking from east to west, the first was a siding, which
At that time plaintiff’s husband was driving westwardly on said road. He was alone in a buggy. The distance from the nose of the horse to the buggy was approximately nine to ten feet. No witness saw him stop before he reached and was on or partly over the cold storage siding. Some witnesses say he did not stop before then, some that he did not stop at all, but one said he might have so stopped, but the witness did not see it. His supposed failure to stop before reaching the cold storage siding, constitutes the contributory negligence alleged against him. When he reached
Under the above facts it is admitted that the case was for the jury on the question of defendant’s negligence; but it is contended, and the opinion of the majority of the court decides, that deceased’s failure to stop before crossing the cold storage siding, constituted conclusive evidence of his contributory negligence.
I cannot concur in that conclusion. In effect it holds that a man may be adjudged guilty of contributory negligence, and the defendant who has injured him relieved of all liability, although in fact he was guilty of no negligence which contributed to his injury. The utmost point to which the majority opinion is willing to go, is in the statement that “no one can say that, if he had stopped at a point before crossing the first track [thereby meaning the cold storage siding] a sufficient length of time to make proper observation, he would not have discovered the approach of the train, or, if he had stopped and proceeded, would have reached the scene of the
Inasmuch, therefore, as admittedly there was sufficient evidence from which the jury could and did find the defendant guilty of negligence, the syllogism is complete: (a) Defendant was guilty of negligence in killing plaintiff’s husband; (b) Unless plaintiff’s husband was guilty of contributory negligence, plaintiff can recover for defendant’s negligence; (c) Plaintiff’s husband was not guilty of contributory negligence, for the reason that “no one can say” that he was. Hence plaintiff can recover.
Notwithstanding this logical conclusion, the majority opinion says she 'cannot recover because, as alleged, her husband did not “stop” before crossing the cold storage siding, as he was bound to do, in compliance with the “absolute and unbending rule that a traveler upon the public highway must stop, look and listen before he crosses any tracks.” If this case was within the reason and spirit of that rule, which was adopted by this court more than half a century ago, and has been adhered to steadfastly ever since, then must we apply it here, however much we may doubt the propriety of a court (whose only duty is to decide as to the legal rights and liabilities of the particular litigants before it) foreclosing the rights of future unheard litigants, by an arbitrary rule, without legislative action, when in the nature of things the rights of those future litigants may be materially different, owing to the varying facts. Since that rule was first adopted and published, the members of thirty-one legislatures and one constitutional convention have been elected, met and adjourned, leaving it still in force, and because thereof, despite doubts as to the wisdom of
Moreover, the purpose of adopting this rule as a fixed and arbitrary one, and of now enforcing it, is that our people may know that they and those dependent upon them will alone be the sufferers if they do not give heed to it, thereby building up the habit of obedience to its requirements. But to extend it as now proposed would not aid in accomplishing this purpose, for it would run counter to the habits and customs of our people, and a rule which does that would not in practice obtain even a passing currency. He little knows our American people who imagines that they will obey a rule which uselessly attempts to delay them in the ends they seek to accomplish. Tell them they must not cross a siding wherever cars are, or are soon liable, to be shifted, and they will understand and recognize that they should obey it. But tell them that they must not do so though there is no motive power on the siding with which to move the cars, and they will neither understand nor obey. Over a siding, in the condition the cold storage siding was at the time of this accident, even the proverbial tortise could have passed in safety. Every one who then saw the siding knew that was so; and every one, even all those who adopted and those who enforce the rule of “stop, look and listen,” in all human probability would have acted just as plaintiff’s husband did. To say then that plaintiff cannot recover because
The opinion of the majority, after saying that the deceased should have stopped before entering upon the cold storage siding, asserts that if he has done so, and then proceeds, “the question whether or not he has exercised proper care in crossing the railroad as he proceeds and whether it is necessary for him to stop again is a question for the jury.” That is, the majority opinion concludes that if he had stopped where he could have seen nothing, the question would have been one for the jury, even though he did not stop between the siding and the main tracks, where alone he could see before entering upon the dangerous part of the crossing. To justify that conclusion the majority opinion says that if he “had stopped at a point sixteen and one-half feet from the first track [the cold storage siding] he would have had some view .of the track on which the train approached,” overlooking the fact that the witness relied on for that conclusion had said, as indeed quoted in the majority opinion itself, that this would have been so only “if there were no cars on the cold storage siding,” where in fact there were then such cars; and overlooking also, as testified to by three witnesses, that no view could be obtained anywhere short of the cold storage siding. Moreover, instead of the law being as stated in that excerpt, the precise reverse is true, for it has been repeatedly held that it is negligence per se to stop only at a point where you cannot see: Ely v. Pittsburgh, C., C. & St. L. Ry., 158 Pa. 233, 237; Mankewicz v. Lehigh Valley R. R., 214 Pa. 386; Bistider v. Lehigh Valley R. R., 224 Pa. 615.
There are not less than three answers to the allegation of conclusive contributory negligence in this case:
1st. Plaintiff’s decedent was killed, and from that fact arises a presumption that he did “stop, look and listen,”
In Pennsylvania R. R. Co. v. Weiss, supra, it is said: “The presumption of a fact in law, which carries a case to a jury, necessarily leaves them in possession of the case. True, the evidence to rebut the presumption may be very strong, yet it is a matter for the jury and not for the court. The force of the evidence may or may not be sufficient to convince them that the natural presumption arising from human instinct is repelled. But before they can come to this conclusion they must consider the circumstances under which the repelling witnesses testify. They may be such as not to convince a rational mind that the deceased heedlessly rushed into danger, or the character of the witnesses and their appearance before the jury may render them unworthy of belief, consequently the jury only can determine the fact put in issue by the presumption of law.”
It is true that if plaintiff’s case had itself overthrown the presumption, the court would have been bound to decide according to the fact thus proved, but such testimony must be “clear and indisputable”; and it may be said here, as was said in Unger v. Philadelphia, B. & W. R. R. Co., 217 Pa. 106, 109: “The plaintiff’s case rested upon the presumption of care, unrebutted by proof that would have warranted the court in holding that it was overcome, and upon testimony tending to show negligence on the part of the defendant. It was clearly for the jury.”
2d. Had deceased stopped at the point suggested in the majority opinion he could have seen nothing. Three witnesses so testified. But, assuming, the contrary,- the
■When he approached the crossing he had the choice of not stopping at all, which from ample evidence the jury found was not what he did; or of stopping where the majority opinion says he might have stopped, and where, as three witnesses testified, he could have seen nothing if he, did; or of stopping at the point where it is alleged he first did stop, and where for the first time he had a view of the tracks. This was on or partly over the cold storage siding. If it be that he took the risk of an injury from a train on that siding, the answer is he received no such injury, and that act in no way contributed to the injury he did receive. If he had stopped, where the majority opinion says he should have stopped, or at any point short of the cold storage siding, in view of the fact that he could see nothing, the only thing he could have done would have been to tie his horse or get some one to hold it, — for he would have been guilty of negligence had he left it unfastened and unattended on the public highway, — alight from his buggy, and go forward, risking the imaginary danger of the cold storage siding, and stop, look and listen at the very place he actually did, then return, untie the horse, enter the buggy, and drive over the same ground he had walked over, and then beyond and across the tracks. Thus to do would have occupied at least three times that required for a train, traveling as this one was, to reach the point
Obviously, therefore, the only reasonable and sensible thing to do', was exactly what he did. Neither in this class of cases, nor any other, does the law require of a man that he do a vain and useless thing, and so we said in Bard v. Philadelphia & Reading Ry. Co., 199 Pa. 94, 99. Or, as was said in Barthelmas v. L. S. & M. S. Ry. Co., 225 Pa. 597, 601: “The rule which imposes on the traveler the duty of . stopping, looking and listening before entering on a crossing, implies antecedently that there is a safe place where he may stop, and by the exercise of his senses of seeing and hearing, inform himself as to the situation with respect to safety.” In this case deceased did stop at the very first place where he could see and hear, and yet the opinion of the majority condemns him because he did not do that which, by the verdict of the jury, founded on the testimony of three witnesses, and by mathematical demonstrations, would have been a vain and useless thing even if done.
3d. Moreover, the opinion of the majority is in direct antagonism to the reason and spirit of the rule itself. It will hardly be contended that a failure to stop, look and listen would relieve a negligent defendant from liability, if, for instance, plaintiff would have gotten safely across but for a defect in the crossing itself. At any rate, we held in Baughman v. Shenango & Allegheny R. R. Co., 92 Pa. 335, that such a contention is of no avail. What then is the reason for the rule? In North Penna. R. R. Co. v. Heileman, 49 Pa. 60, 64, it is said that the reason is “because movement upon such a road is more speedy, and the consequences of a collision are usually so disastrous.” As those disastrous consequences are the result of the rapid movement, it follows that the reason of the rule is the necessary rapidity of railroad travel. It is for that very reason that we have not required those crossing trolley tracks to stop before so doing, despite the very high speed with which the trolleys run: Carson v.
But the like reason exists in regard to sidings leading only to private plants. Trains move slowly thereover, much slower than the trolley cars on their tracks; and the movement of cars on such sidings is much less frequent than those on trolley tracks. Consequently, a no more stringent rule should be applied, and no case suggests otherwise unless it be Peoples v. Penna. R. R., 251 Pa. 275, cited in the opinion of the majority. If that case applied a more stringent rule, I would be in favor of so modifying it as to conform to reasonable requirements. But it does not do so. There the plaintiff was injured on the siding itself, which was “in frequent and daily use by the railroad company.” Had he looked he would have seen that the cars on that siding were then being shifted, but he did not, and his automobile was struck “immediately upon its getting upon the railroad track.” In the present case there was no injury upon the siding. That was crossed in safety, as it was plainly to be seen it could be; and stopping on it, in order to look and listen, was the only safe and sensible thing to do before attempting to cross the dangerous main tracks.
Perhaps the case in our reports, which is most nearly like the present, is Gray v. Penna. R. R., 172 Pa. 383. There, as here, there was a siding and main track, the former occupied by freight cars which obstructed a view of the latter until the former was passed. Deceased “stopped on the side track at the end of the freight cars,” and was killed while crossing the main track. We permitted a recovery by plaintiff.
In my judgment this case, upon the evidence, was for the jury, and for that reason I dissent from the judgment of the majority.
Mr. Justice Stewart joins in this dissent.
