162 Pa. 29 | Pa. | 1894
Opinion by
The direct and immediate cause of the injury of the plaintiff was the fright, and the running away, of the horse that was drawing the carriage in which the plaintiff and her friend were riding. There was no negligence alleged, or proved, in the running of the train, and there was no collision on the railroad. The fright of the horse was alleged by the plaintiff to have been occasioned by the act of warning by the flagman to prevent the ladies from driving across the main line immediately in front of an approaching train, and it was founded upon the
The foregoing was the testimony in chiéf of the witness. So that it was affirmatively proved by the plaintiff, by a wit
Supposing that Broad street crossing was 1200 feet distant, as this witness said, though the other witnesses said it was but
Another witness for the plaintiff, Schinleiver, testified : “ I noticed the two gentlemen on the opposite side of the main branch in an open top carriage, and I noticed them looking around; and in looking back to see what they were looking at I noticed a couple of ladies in a falling top, and I noticed that the flagman was standing there at his box and had the lantern, and whether he was swinging it I do not remember. I noticed the two ladies drive on, and just as they got in front of the flagman I noticed that he threw his lantern up, and the horse was frightened and turned to the right and crossed over the Doylestown platform. Q. Did he throw his hands up quickly or slowly with the lamp ? A. Pie threw them up as though he was excited. Q. How close was the flagman at that time to the horse’s face ? A. He might have been, I judge, five or six feet. . . . Q. You did not notice any train at all at that time? A. Not at that time ; no, sir. Q. Could you say how soon after the train arrived ? A. I looked over a short three minutes afterwards, and I noticed the train standing there. I could not tell when it arrived.”
This was the positive affirmative testimony given in evidence by the plaintiff. On cross-examination the same witness said lie had crossed over the moment he saw the horse rear to assist in caring for the women, and paid all his attention to them, and did not notice the arrival of the train, but that it was standing there at the station when he looked about three minutes later.
As a matter of course the negative testimony of the husbands that they heard no whistle, and saw no train, disappears from the case in the face of this positive testimony of the plaintiff, and it constitutes no element in the discussion.
The testimony of all of the defendant’s witnesses on this sub
It is manifest from this testimony that had the flagman not arrested the progress of the carriage it would inevitably have been run over and the death of both women would most prob- • ably have resulted.
Bloom, the flagman, after describing the manner of the accident, was asked: “ Q. How near, about, as far as you recollect, were you to the horse when you turned around? A. About twentjMive or thirty feet. Q. Somewheres there? A. Yes, sir. Q. Where was the train when you turned around? A. Right beyond the flag-box. Q. Coming right on to the crossing? A. Yes, sir. Q. Where were you standing? A. In Main street about six or seven feet from the track. Q. You were in the bed of Main street six or seven feet from the track ? A. Yes, sir. Q. And the train was coming on to the crossing? A. Yes, sir. ” These are the two men who had the best opportunity of observing the precise facts just as they occurred, and they both agree that the train was close to the crossing when the flagman slopped the horse.
Other observers entirely disinterested and having the very best means of knowing just what took place, gave entirely similar accounts of the occurrence. Henry Clark said: “In the first place I stood between the main line and the flag-box ; and as the train was coming up about half way between Broad street and Main street, I stepped around to the front of the flag-box to clear myself of the danger; and, as I wheeled to the front, I spied those women coming. As quick as I spied them I hallooed. They hallooed to me, ‘ catch the horse,’ and quick as they hallooed the horse was on his hind feet. He then bore off to the right and went right across the platform of the Doylestown branch and threw the women out, tore loose and went out Walnut street. ”
Isaiah L. Walker testified: “I stood in the Junction House yard that evening about sixty feet from the main track watch
This is a very precise and circumstantial account of the transaction showing the immediate succession of the events, and it proves beyond the possibility of a doubt that if the horse had not been stopped by the flagman he would have been on the track immediately in front of the locomotive. On cross-examination he was asked how near the flagman was to the horse when he threw up his hands, and he said, “I judge he was not over seven or eight or nine feet. Something like that. He was not far awajn Some one hallooed and he turned around and threw up his hands, and with that the horse flew to one side, and when the horse was about ready to jump the platform the train passed by.”
Sylvester Jenkins, another witness for defendant, said: “ The first I saw of the accident was the horse rearing on the street, turning to the right and running with the ladies over the platform and upset them. I saw nothing of the watchman. Q. Did you see the train come ? A. Yes, sir. Q. How soon after you saw the horse rear did the train come ? A. About half a min
From this testimony it can easily be imagined what would have happened if the flagman had not succeeded in arresting the progress of the horse over the .track. To the same effect is the testimony of Frank W. Dickinson, another witness for defendant. He was on the ground at the time of the accident. He was asked: “ Q. What did you see and what did you hear ? A. Just as I was crossing between the Doylestown track and the main north bound track I heard the whistle blow. Q. That is while you were in the bed of Main street? A. Yes, sir; on Main street between the Doylestown branch and the main line. Q. You heard a whistle blown ? A. Yes, sir; I passed over and as I looked down I saw the train very close. I had to hurry to cross. As I looked around I saw the horse rear, and by that the train cut my view.”
Another witness who was on the ground, Joseph Z. Kratz, testified: “I had been in the post office and came out there and stood there and talked with Mr. Hartzell. He was standing there near that post when I came out. I paid no attention to the railroad nor to the team. I heard a train coming and I looked up, and as I looked I saw the train was very near Main street, and as I looked up I saw the train, and the instant I looked up I looked where Mr. Bloom was and he was at his post giving the signal for danger. By that time he turned around and kind of raised his hands, and by that time the horse ran to his right and ran over the Doylestown platform and tore away from the carriage and threw these ladies out. Q. When the horse started to turn around where was the train? A. It might have been one hundred feet more orless from Main street. Q. It was approaching Main street ? A. Yes, sir. . . . It was all in an instant, my looking up and the train coming, and I looked where Bloom was and he was at his station and by that time the horse turned to his right and ran away. It was all in an instant. ... It was done very quick as I say. The train coming and him turning around and raising his hands and the horse running away, it was done in a very short time.”
Another witness, Michael H. Hartzel, said he was standing
Edwin K. Doulin, another witness for the defendant, after describing his position and what he saw of the men and their wives, testified: “ Just about the time they (the women) got cleverly about the Doylestown track, the flagman was standing across the middle of Main street swinging his lantern and I couldn’t say whether he threw his lantern up or not. Any way there was a train came along and it came so suddenly that I couldn’t be positive -what did happen. The first thing I saw the horse turned around to the right and ran up on the Doylestown platform and threw the ladies out and tore loose from the wagon and ran up Walnut street. Q. Did you see the train coming? A. Yes, sir. . . . It seemed to me that the train and the accident were both about together. I do not think the train was half a minute after the accident happened.”
Patrick McCloskey, having said he was between the two tracks when the accident happened, testified :• “ As I crossed the track I saw the two ladies coming in the buggy, and they got very near, almost between the two tracks, and at that time the train came and the horse reared up on his hind legs and turned to the right and the wheels of the carriage struck the platform of the Doylestown branch and the horse broke from the harness and ran out Walnut street and the ladies and boy were thrown out. Q. Did you hear or see the train come? A. I saw the train come, yes, sir. Q. When did you first see the train coming? A. Just before I crossed the main line track.”
Tyson, another witness for the defence, testified substantially to the same effect. Amongst other things he said : “ The team
John Austey, having said he passed the ladies within three or four feet, and that he saw them pass the Doylestown road, said : “ I didn’t see them stop. I didn’t notice them stop but I looked the other way, and the train was coming, and of course I looked back to the ladies to see how they would drive across the road, whether they would or not, and they drove near the road and the flagman was swinging his lamp like this (illustrating) and then I began to think how are they going to cross, and just as the horse reared the train came and the horse reared and turned around and the train went right by. Q. The horse reared and the train went right by ? A. The horse reared and turned to the right; turned across before he got to the platform, and the train went bj- before he got half way I should judge.”
It has been necessary to make these quotations from the testimony in order that we may consider intelligently the action of the learned court below in directing a verdict for the defendant. The case had been tried before and had resulted in a verdict for the plaintiff which had been set aside as being contrary to the evidence. The trial judge consulted with his colleagues and all were of opinion that there was no proof of negligence on the part of the defendant, that the injury was caused by the fright of the horse, and that the fright of the horse resulted from the action of the flagman in his effort to keep the horse from going on the track. They were also of the opinion that upon plaintiff’s own testimony the flagman was strictly in the line of his duty in his attempt to stop the wagon, and was not responsible for the manner of his effort, even upon the theory that he was waving them to come on, and was not waving them to stop, as he alleged. Upon the whole testimony the court below was of opinion that there could be no recovery under the evidence, and hence if a verdict for the plaintiff should be rendered it would have been their duty to set it aside. In such cases, as we have many times held, it is the duty of the court to direct a verdict for the defendant.
In Brown v. French, 104 Pa. 604, we held that one who, in a sudden emergency, acts according to his best judgment, or who, because of want of time in which to form a judgment, omits to act in the most judicious manner, is not chargeable with negligence. Such an act or omission, if faulty, may be called a mistake, but not carelessness. Said Gojrdon, J., in delivering the opinion: “Under such circumstances as these we cannot agree that a mistake in judgment is an act of care
In Sekerak v. Jutte, 153 Pa. 117, we held that a person who, without fault on his own part, finds himself in the presence of a sudden emergency which imperils the lives of others, and has but a moment of time in which to think and act,' cannot be charged with negligence if in acting he makes a mistake in judgment.
Other illustrations of this principle will be found in Hestonville, etc. Pass. Ry. Co. v. Kelley, 102 Pa. 115, and Oberdorfer v. R. R. Co., 149 Pa. 6. Further reference to authorities is unnecessary. On the whole case we are clearly of opinion that it was rightly determined by the learned court below. The contention that the signal given by the flagman was an invitation to the women to come on is foreign to the vital question of the cause. The women testified that they so regarded it, but the flagman and others said it was a signal of danger. But it is immaterial which it was, since it would^ have bee.n just as much the duty of the flagman to stop them, whether he had previously signaled them to come on or not.
Judgment affirmed.