155 Pa. 548 | Pa. | 1893
Lead Opinion
Opinion by
It must be accepted as settled by the evidence and the verdict that James Ham was wrongfully ejected from the car, and did not enter on the track as a.trespasser or by his own fault. Cases therefore like Mulherrin v. R. R. Co., 81 Pa. 366, and R. R. Co. v. Collins, 87 Pa. 405, and others which hold that a man who steps his foot on a railroad track except at a public crossing does so at his own peril, and that it is negligence per se, have no application.
That this was the proper rule for the guidance of the jury does not admit of question. Ham as already noted was put in a place of danger without fault of his own; he was bound to use care, diligence and judgment to get out at the first opportunity ; but using these he was not chargeable with responsibility for the result, and the standard of the care, diligence and judgment he was bound to use, was the common standard of the ordinary prudent and careful man.
This was the rule which was claimed by the appellant when the case was here before, and which we then said was applicable. Ham v. Canal Co., 142 Pa. 617. But a single expression in the opinion has led the appellant to claim now that nothing short of “ imperious necessity ” will excuse Ham for continuing on the track. In that case certain points were presented by the defendant, based on hypothetical statements of the facts which if true entitled the points to an affirmance. Our brother Green reviewed the evidence, and in doing so used the expression that w'hether the distance from where Ham was put off the car to where he was struck was four thousand feet as claimed by plain
We see no benefit in a detailed review of the evidence. It is mainly the same as when the case was here before, though somewhat strengthened for the plaintiff. There was much testimony as to the feasibility of getting off the track at various points and without crossing the bridge where the accident happened, and the jury might well have so found. But there was also much testimony to the contrary, and the preponderance was not so great and the result so one-sided that the court could have pronounced it as a matter of law. Whether a safe road was there or not was only a part of the question. There still remained whether Ham, with ordinary diligence and prudence could have seen it, and seeing ought to have taken it. A man familiar with a locality may take an uninviting path, knowing it will lead him aright, while a careful man not knowing how it may turn out, nor even whither it may lead, may well be exonerated from negligence in not making the experiment, though it would in fact have been the best thing to do. The elements of prudent conduct on the part of Ham were too many and too varied to be determined except by the jury, and’ the rule laid down for the jury’s guidance was in accordance with the settled law. If they have made a mistake in its application the remedy is not with us.
Nor do we find any error in the reference to the view of the ground by some of the jurors. They were told that they had the aid of their own observations “ to supplement the testimony of the witnesses.” This was not substituting their eyes exclusively for the evidence in the case, but using them as an aid in weighing and applying it. Though not so explicit and full as the charge in Flower v. R. R. Co., 132 Pa. 524, it was in substantial accordance with it.
Judgment affirmed.
Dissenting Opinion
When this case was here before, 142 Pa. 617, we said, “ that the presence of the man on the track at so remote a point cannot be justified except upon clear proof of a most imperious necessity: ” and also that, “ It is not possible that when a person is ejected from a train he is at liberty to walk upon the track of the road for any considerable distance, or for any distance more than is absolutely necessary to enable him to reach a position of safety.”
We also held that there was no proof of that kind of necessity in the case and reversed the judgment of the court below chiefly on that ground. On the last trial of the case in the court below the defendant submitted a point in the following words, viz : “ That the presence of James Ham upon the track at Bridge No. 9, where the accident happened, could only be justified by a most imperious necessity, and there is no sufficient proof of any such necessity in this case.” To this point the learned court below made answer as follows, “ That point is refused.”
The defendant’s third point was, “ That there is no sufficient evidence in this case that James Ham was compelled to walk upon the track from the point where he was ejected to Bridge No. 9 where he met with the injury.” This point was also refused.
In charging the jury and answering the points submitted on both sides the court below entirely ignored the rule of duty as we declared it, and announced another and very different rule, to wit, that the deceased was only bound to exercise ordinary care and prudence, and if a person of ordinary care and prudence would have walked on the track as Ham did, and was killed by an approaching engine, he was not guilty of contributory negligence, and the plaintiff would be entitled to recover. The thirteenth point of the plaintiff was in the following words, “ All the care that was required of James Ham after being put off the car, is simply the ordinary care and diligence of a reasonably prudent man under the circumstances.” This point was affirmed without qualification.
Passing by the question of good or bad grace of the lower court in refusing to obey the ruling of its superior, it is very evident that both of these rules of duty cannot be correct.
But abstractly, on the intrinsic merits of the question, how can it be contended that because a man has been wrongfully ejected from a train, he is at liberty to take possession of a railroad track and to walk upon it for an indefinite distance and an indefinite time to be determined by the caprice, whim or prejudice of an irresponsible jury. If such a right exists, the right of the railroad company to occupy its tracks with its traffic must be suspended until the right of the ejected passenger ceases, which no man can tell under the rule of ordinary prudence. For there cannot be two conflicting legal rights to the occupancy of a railroad track at the same time and place. If one exists the other does not, because it cannot, and all the business of the road must be stopped at the point in question while the superior legal right of the ejected passenger is being exercised. If the ejected passenger has the right to walk upon the track between the rails for half a mile, or a mile, or any number of miles that a jury might be willing to say an ordinarily prudent man would have walked, it is manifest that the railroad company has no legal right to run its cars on the same track at the same time. In no case that we have been referred to, and in no text book, has such a doctrine ever been asserted, nor do we conceive it ever will be.
There are cases of course where a passenger has been wrong
But in this case there were no such circumstances, nor any other circumstances of an exceptional character, which rendered it necessary or desirable, or prudent, for Ham to occupy the track and walk between the rails over the entire space between the point of ejection and on the bridge where he was killed. In the former opinion the evidence was fully and patently re-, viewed showing the various means of egress from the railroad by which Ham and his companion Jones could have left the track. It is not necessary to repeat them here. But there was another and more apparent, and immediately available, means of avoiding the track, which was not then discussed. Attention had not been called to it on the argument, but since the present argument it has become more conspicuous, and while it has not been developed in the testimony to any thing like the
The main, and by far the most important, witness for the plaintiff, Thomas Jones, who, when Ham was ejected, got off the car and joined him and walked all the way with him on the roadbed and on the bridge where he was killed, gave most direct and important testimony on this subject. I quote the following: “ Q. Ham stood about thirty feet from you when you landed? A. Thirty or forty feet. Q. Was he walking on the track? A. He was walking between the two tracks I believe. ... Q. Did you go back to him ? A. I said a moment ago that I did not. Q. Did he come up to you? A. Yes,-sir. Q. Then what did you do ? A. We staid and considered what to do and we thought it was just about as near for us to go to Forest City as to go back. ... Q. And didn’t you and Ham then start following up the train? A. We started towards Forest City. Q. Didn’t you follow the train right up as soon as you started? A. We couldn’t follow the train. The train was quicker than we. We followed the same way but on a different track. Q. You followed the train ? A. We followed the train on another track. We went on the down track. . . . Q. If you had gone back and found a place to go up you could have gone on the road to Forest City? A. Gone back where? Q. Gone back anywhere ? A. I don’t know. I didn’t go back. We were just about half way and we thought it was just about as quick to go to Forest City as to go to Carbondale.”
Describing what took place on No. 9 Bridge, he was asked:
He was also asked: “ Q. When you first got off what was said as to which way you would take to get off ? A. I didn’t know anything about the road and I thought it would be as near to go to Forest City as to go to Carbondale.”
In describing his jump on the bridge he was asked r “ Q. You jumped on to the tie ? A. I jumped and I struck the tie and I couldn’t steady myself there and I went down. That is the way I have told it all the while. Q. How far was it that you jumped ? A. I couldn’t tell you how far. I said it was from seven to eight feet high, I never measured it. Q. How far across? A. Well you can say what distance it is between the up track and the down track as well as I can.”
The testimony of Thomas Jones was exactly the same on the second trial as on the first. He was not examined on the second trial, but the notes of his testimony on the first trial were read in evidence. Now his testimony establishes conclusively, so far as the plaintiff’s case is concerned, several matters of the greatest consequence in this connection. (1) That he and Ham went voluntarily upon the railroad towards Forest City instead of back to Carbondale, it was only a question of convenience. (2) That while they were going foward from the time they started they walked upon’one of the tracks. (3) That' the track they walked on was not the one the train moved on but the other one, the down track. That is, they walked directly towards trains approaching them in their front, and consequently had merely to look directly before them for the only trains which could harm them. (4) The deceased James Ham left the space between the tracks where he would have been safe and entered upon the space between the rails on the down track and continued there until, (5) he was struck on the bridge on the same track.
All of these facts are conclusively established against the plaintiff by her own witnesses and are therefore to be treated
It certainly was not necessary for him to be there in any conceivable point of view. It was broad daylight, four o’clock in the afternoon, on the third day of November. It was not storming, and there was absolutely nothing to prevent his deliberate choice of at least the safest mode of proceeding along the track if he did not choose to depart from it altogether. Instead of doing that he chose the most dangerous path and place that was possible.
Had he remained in the space between the tracks where he was when he started he would presumably have been perfectly safe. The exact distance between the tracks does not appear in the testimony, but, as the writer understands, the regulation distance between the tracks of a double-track railroad is seven feet, and there is no testimony to show that these tracks were any closer. The witness Jones says that on the bridge where he jumped it was the distance between the up track and the down track, showing that the two tracks were as far apart there as on the roadbed beyond the bridge.
Nor can Ham’s choice of his route be defended upon the ground of reasonable prudence. If any trains were moving he was certain to encounter them upon the track he chose. Had he chosen the other track he would not, and could not, have met with the accident which destroyed his life. But it is preposterous to say that having a choice between an open pathway between the two tracks, up to, and on, the bridge, and the space between the rails of the track upon which he walked, he was reasonably prudent in choosing the latter. Why should he walk on the track ? Why should he walk on the narrow space between the rails and on the cross ties, in the very throat of manifest danger, when there was a wider space with no cross ties and no rails and no possible approaching engine from before or behind, lying right beside him ? When he was on the bridge, where he had no right to be in any conceivable view of the case, he was obliged to walk on the timbers of the bridge whether he was between the rails of the track or outside of them. Why then should he walk on the track between the rails ? Why not
We abandoned the abject slavery to insensate and untruthful verdicts when we declared that, “ It is in vain for a man to say that he looked and listened, if in despite of what his eyes and ears must have told him, he walked directly in front of a moving locomotive.” . While this doctrine was first declared in the affirmance of a judgment of nonsuit, Carroll v. Railroad, 12 W. N. 348, we have constantly followed and enforced it in many cases in which verdicts for the plaintiff were founded and defended in this court upon just such testimony: Railroad v. Mooney, 126 Pa. 244; Railroad v. Bell, 122 Pa. 58, and many other cases. It is not likely that we will ever return to the thraldom from which we have escaped.
It is to be added that on the trial no testimony was given to show that it was either necessary, or reasonably prudent, for Ham to walk between the rails of the track, either on the roadbed or on the bridge, especially on the down track. There was not a particle of testimony given to show that there was no room for him to walk on the space between the tracks, or on the open spaces outside of both tracks. On the contrary it appeared by the testimony of Jones, the plaintiff’s own witness, that there was such space between the tracks, and that there was another track on either of which if Ham had walked he would not have been hurt. In that state of the testimony it is perfectly clear to my mind that either upon the doctrine of neces
Thus far I have considered the case chiefly upon its facts. It is now desirable to consider it upon its law. Is the doctrine of reasonable prudence applicable to such a ease ? Is it the law that a wrongfully ejected passenger may occupy the track longitudinally, walking between the rails, when it is not absolutely necessary for him to do so ? This court, in this very case, said that it was not, but the court below said it was. We have not been referred to a single case or text-writer’s opinion, holding that such was the law. Is the proposition supported by reason or analogous principles ? In my judgment certainly not. If we consider the question analogically we have a most emphatic illustration close at hand, and under constant consideration. It is the perfectly well established law of this commonwealth, that all travelers on highways which are crossed by railroads, have a legal right to occupy the tracks of the railroads for the purpose of crossing them. This is a pure legal right which entitles the traveler to the temporary occupancy of the track. But we have never yet tolerated the proposition that he might go upon the track, if, in the opinion of a jury, a reasonably prudent person would do so. We have never permitted the doctrine of reasonable prudence to prevail to the slightest extent in the exercise of this undoubted legal right of temporary occupancy. On the contrary we have always held that in exercising this right the traveler must first stop, look both ways and listen for approaching trains, before setting foot upon the track, and that if he fails to do this he is guilty of contributory negligence and can not recover. We enforce this doctrine whenever the Eacts in evidence show that this preliminary duty has not been discharged, without the slightest attention to the verdicts of juries who have disregarded the law and the evidence. In other words, although the right of a traveler on a highway, to go upon the track of a railway for the purpose of crossing it, is an absolute right and therefore quite as high, indeed higher than, the right of a traveler ejected from a train, it can only be exercised subject to strict conditions, the nonobservance of which forfeits all right of recovery for injury or death. In the present case iu order that a recovery can be had we must suspend the
In considering the legal aspect of the subject it will be instructive to review some of the very numerous utterances of this court respecting the occupancy of railway tracks by individuals.
To this point the court below answered as follows : “ If the plaintiff knew his cow was wandering on the railroad, it was his duty to drive her therefrom. He had no right to suffer her to be there, and if he did suffer it, knowing her to be there, he was guilty of such negligence as should prevent his recovery. But if his cow casually wandered away, ordinary care being used to restrain her, the simple fact of her being on the track, would not excuse the defendant’s negligence.” It will thus be seen that in that case as in the present, ordinary care is contrasted with necessity, in the temporary occupancy of the track, but this court utterly scouted the distinction and reversed the judgment, which was of course given for the plaintiff on the verdict, and refused a new venire.
In 1855, in the case of Railroad v. Norton, 24 Pa. 465, the plaintiff, who was in the employ of the Phila. & Read. R. R. Co. sawing wood for them on a contract for that purpose, had, by authority of an agent of the company, fastened his sawing machine to one of the rails of the track, and was injured by the engine of another company which had a right of passage over the track. The company defended upon the allegation of contributory negligence, to which the plaintiff replied by assert
How much farther this court went in the case just cited than it is at all necessary to go in the present, is manifest at a glance. The plaintiff there was occupying the track for weeks in succession by the direct authority of the company’s agent. He was an employee of the company and in no sense could he be treated as a trespasser. Yet his occupancy of the track was denounced by this court in the sternest language as disqualifying him from any right of recovery. That plaintiff planted himself on the rails, just as this plaintiff did, but with this difference, that he was distinctly authorized to do so, while this one was not. If the doctrine of reasonable prudence in such occupancy could ever have a lodgment in our jurisprudence in this class of cases, how eminently fitting would have been its application in such a ease. In that case, as in this, the counsel for the plaintiff contended in this Court that if the plaintiff conducted himself with ordinary care, although he
In Railroad v. Hummel, 44 Pa. 375, we said, Strong, J.: “ It is time it should be understood in this state that the use of a railroad track, cutting or embankment, is exclusive of the public everywhere, except where a way crosses it. This has more than once been said, and it must be so held not only for the protection of property, but, what is far more important, for the preservation of personal security and even of life.” This was said in a case in which a child was on the track, who was not responsible for contributory negligence.
In the next case to which I refer the facts were so closely analogous to those of the present case, in so far as the occupancy of the track was concerned, that they gave occasion for the application of the very principle for which I contend. It is Mulherrin v. Del. Lack. & Western R. R. Co., 81 Pa. 366. The opinion was delivered by Mr. Justice Paxson, late Chief Justice of this court, and in it he states the facts thus : “ The injury was caused by the train of the Delaware, Lackawanna & Western Railroad Company. The track was owned by the Lackawanna & Bloomsburg Railroad Company. The former company had the right of trackage over the road by virtue of an agreement between the two companies and the train of the Delaware, Lackawanna & Western Railroad Company was lawfully upon the track. There are two tracks at the point where the injury occurred. Between the inside rails of the said tracks there is a space of seven feet in width, leaving a clear space between passing trains of about three and a half feet in width, while outside the southern track there is room to walk without danger. Patrick Mulherrin, the plaintiff, was in the employment of the Lackawanna & Bloomsburg Company as a brakeman. On the morning of 29th of June 1871, he was on his train approaching Scranton from a northerly direction; when near Jackson street he got off from his train to turn the switch, and having performed this duty, he went to the watchman’s house, near the switch, where he remained some time in conversation with the watchman, then lighted his pipe and started towards Scranton to join his train, walking on the north
The jury returned a verdict for the plaintiff, and this court reversed the judgment without a venire, holding the above instruction to be erroneous, for the reason that the plaintiff was not necessarily on the track, there being room between the tracks and outside the southern track where he could have walked with safety. Mr. Justice Paxson, after quoting from Railroad v. Norton, supra, the language cited above, said: “ Except at crossings where the public have a right of way, a man who steps his foot upon a railroad track does so at his peril. The company have not only a right of way but such right is exclusive at all times and for all purposes. This is necessary, not only for the proper protection of' the company’s rights, but also for the safety of the traveling public. It is not right that the lives of hundreds of persons should be placed in peril for the convenience of a single foolhardy man, who desires to walk upon the track. ... In this case the plaintiff was not in the employ of the defendants, but was a brakeman of the Lackawanna & Bloomsburg Company. The evidence clearly shows that he was not necessarily on the track when he was struck by the train. He got off his train to perform a duty, 4to wit, the adjustment of a switch. That duty had been performed when he sought to rejoin his train. If in doing this
This is precisely the doctrine for which I contend. Although as a brakeman whose duty it was to adjust switches and therefore to be upon the track at times, nevertheless, it was not necessary for him to be upon the track at the time and place where he was struck, because he could have walked in the space between the tracks or on the outside of one of them, and therefore he was not protected while walking on the track. No doctrine of ordinary prudence was even offered in support of his occupancy of the track, and if it had been, it would certainly have been rejected in view of what was said in the opinion.
In the case of Aiken v. Pa. R. R. Co., 130 Pa. 380, a foot passenger along a highway crossed by tracks attempted to pass over the tracks—there were ten or eleven of them—and when he had crossed six or seven of them, he and his companion saw an approaching train. The companion stopped in the space where they were standing, but the deceased passed on, and was struck and killed by the train. There was evidence that the tracks were obstructed by standing cars, piles of pipe and railroad ties obstructing the view on one side, and on the other side was an engine blowing off steam. The defendant asked the court for binding instructions which were refused by the court
This jury, under the instructions of the court, had found that a man of reasonable prudence would have attempted to cross the tracks as the deceased did, but this court paid not the slightest attention to the verdict, and utterly repudiated the doctrine of reasonable prudence, although the deceased was a traveler on the highway and had a legal right to occupy the tracks for the purpose of crossing them. If we will not permit the doctrine of reasonable prudence to protect a traveler on the highway in the exercise of his legal right of crossing, how can we possibly permit it to protect a person who deliberately occupies the track and walks along and on the track for a distance
In the case of Railroad v. Norton, supra, we held that not even the company itself, nor any of its officers or employees,
Entertaining these views, as I do, with the most profound and abiding conviction of their correctness, I find it impossible to assent to the decision of the court in the present case, and I therefore respectfully dissent from the same. I would reverse the judgment on all the assignments of error except the ninth.