19 Pa. Super. 365 | Pa. Super. Ct. | 1902
Lead Opinion
Opinion by
The nonsuit in this case was entered upon a somewhat unusual state of facts. The servant of the plaintiff was driving, in the afternoon, a farm wagon, drawn by two wheel horses and a leader, upon Darby road, in the borough of Darby, a populous suburb of the city of Philadelphia. Upon this road were two trolley tracks. Across it ran the double tracks of the defendant railroad company at grade. The crossing was protected by gates in charge of a gateman. To ease the crossing for vehicles the highway was planked across the defendant’s tracks. These planks were, at the time of the accident out of which this action grew, somewhat slippery by reason of a thin coating of ice. The wagon was pulled slightly out of the road way. The horses got upon the track of the railroad. The wagon was impeded by some snow. The surface between the railroad trades being slippery, the horses were unable to mové the wagon. A couple of minutes were consumed in efforts to compel the horses to draw the wagon across. A station of the railroad company was close to the highway. The driver of the wagon was notified that a fast train, known as the “ Blue Line,” was due to pass in about two minutes. Finding the horses unable to start the load, the driver (with some assistance) succeeded in detaching the lead horse, but before he could detach the wheelers, the train arrived and killed the two horses. Effort was made by the employees of the railroad to give notice to the approaching train by dispatching a man toward it with a red flag. A block signal, in the opposite direction seventy-five feet beyond the highway, was dropped. When the accident occurred the train was running at the schedule rate of fully sixty miles an hour. The highway crossing was visible to one standing on the track used by the approaching train, at about 4,400 feet, looking through a tunnel. The engineer of the train testified that he could not have stopped his train in less than one half to three quarters of a mile. The train was stopped a short distance beyond the block signal.
The court below entered the nonsuit on the ground that there was no sufficient proof that the injury to the plaintiff was due
It is to be remarked before discussing these propositions that the condition of the crossing by reason of the ice upon it, is not alleged to be negligence; nor is there any complaint of failure of duty on the part of the persons in charge of the station to act promptly and wisely in the emergency; nor of the gate-man who had charge and control of the protections to the crossing. The wagon of the plaintiff had ample time to make the crossing before the approach of the train, had it been made even in a dilatory manner. T.j.e presence of the horses upon the railroad tracks was due to the unusual circumstance of the stalling of the wagon at the edge of the crossing.
1. In actions for injuries received at the hands of both steam and trolley roads, the element of speed is of frequent presence. In some of the cases proof of excessive speed has been sufficient to carry the case to the jury on the question of negligence. The train, in the case before us, was moving at a great speed, according to the engineer’s testimony, fully sixty miles an hour. But a few years ago, in the beginnings of rapid transit, such a rate of speed would have been regarded as worse than perilous to passengers and to public. Now, however, such a rate of speed in railroad trains is known to be demanded by the public and furnished by the transporting companies. Its use, however, over grade crossings is attended with great danger, and the policy of the law in Pennsylvania is to discourage and prevent such crossings. Where, however, they do exist, the railroad companies are bound to regard the peril and to furnish proper safeguards. These safeguards must be adequate to protect both passengers and public against all dangers of the crossings which may arise from the usual and ordinary use of such crossings. Proof of excessive speed at á crossing, when accompanied by the exhibition of facts showing proper safeguards for the customary and ordinary use of the crossing, is insufficient to take the case to the jury on the question of negligence. Con
2. The second proposition on which the appellant relies is, that the engineer-failed in duty in not stopping on the signals which were given. There is some testimony that the crossing could be seen at a distance of some 4,400 feet, looking through a tunnel, and that the block signal, about seventy-five feet beyond the crossing, was set to hold the train. Such a signal, as is well known, indicates to the engineer that the block beyond the signal is closed. It is no indication to him that he cannot run up to the signal, or of any danger between him and the signal. The setting of the block signal, therefore, is, in this case, an unimportant matter, save as it shows the efforts on the part of the employees of the railroad to avert the collision.
When it became apparent that the horses could not draw the wagon over the tracks, an employee of the railroad ran in the direction of the approaching train with a flag, and reached a point, perhaps 500 feet from the crossing Avhen the train swung into view. A short distance further on another man attempted to signal the train by waving his coat. In must be remembered that while Ave are uoav discussing distances of some magnitude, we are dealing with excessively small fractions of time. Charging the engineer Avith vision of the horses upon the track at a
In this discussion we have endeavored to give to the plain
Judgment affirmed.
Dissenting Opinion
dissenting:
Whether in view of all the circumstances — the location of the crossing in a populous suburb of the city of Philadelphia; its condition as to ice and snow on the day in question, because of which the plaintiff’s team was stalled; its distance from the point where it would come in view of the engineer of an approaching train looking out for the crossing and the block signal at that point; the time that would elapse in traversing that distance; the condition of the block signal, and the other warnings that were given — the duty of exercising due care required the train to be stopped so as to avoid the collision, and whether it could have been stopped were questions of fact which I respectfully but earnestly contend should have been submitted to the jury. This is not one of those clear cases in which it is the duty or the province of the court to declare as a matter of law that the defendant, performed its whole duty.
Therefore, I am nnable to concur in the judgment about to be entered.