McCarthy v. Philadelphia & Reading Railway Co.

211 Pa. 193 | Pa. | 1905

Opinion by

Mb. Justice Brown,

Five of the six assignments of error in this case relate to the admission of testimony. The first complaint of the appellant is that the court ought not to have permitted the plaintiff to testify that when he was injured he was on his way to Eighth street and Montgomery avenue, “ to get a job tending bar, with the intention of buying the place.” This was in reply to the question, “ What were you going there for? ” The purpose of this question was not asked, and the answer was admitted under a general objection. From all that appears from the record, no error was committed in admitting the testimony at the time it was received; but it is now argued on this appeal that it was improperly admitted, because, in the general charge to the jury, the court instructed them that, in estimating the plaintiff’s loss of earning power, they could take into consideration his testimony that he was on his way to a saloon, with the intention of trying to get employment as a barkeeper and of ultimately becoming the proprietor by buying it. The only error, if any, in connection with this testimony is in that part of the charge of the court relating to the same, but neither that portion of it nor any other part of it has been assigned as error. The first assignment must, there-, fore, be dismissed, for we can correct only such errors as are assigned.

The purpose of the testimony which is the subject of the fourth assignment was to show the loss of the plaintiff’s earning power as a bartender, which had been his occupation and which he could no longer follow by reason of his injuries. His testimony on this point was clearly proper, and the assignment relating to it is without merit. There is nothing in the testimony of the plaintiff, the admission of which is assigned as error in the second and third assignments, nor in that of Eagan, the gateman, the subject of the fifth assignment, which ought to. have been excluded. The plaintiff was standing on the rear step of the wagon and the gateman -was at the crossing. Each testified to just what had occurred and what the situation was at the time the driver of the ice wagon started to cross over the tracks and got upon them, and the testimony of each, which was objected to, had a very proper place in the proofs.

The remaining assignment is that the court erred in refusing the request of the defendant to direct a verdict in its favor. Its negligence was conceded on the trial, and the ground of the refused request was the alleged contributory negligence' of the plaintiff. The defendant submitted no evidence, and the learned judge, in the light of that offered by the plaintiff, refused to take from the jury the question of his contributory negligence and to judicially declare that it was a bar to his right to recover.

The ice wagon, when near the railroad crossing, was stopped by a trolley car in front of it, which had been stopped by the lowering of the gates. The plaintiff was standing on the step at the rear of the wagon. A man named Moore was standing on it beside him, to the right, with his left arm around plaintiff’s body, holding on to a strap with his left hand. The trolley flagman was on the tracks, and, after a north-bound train had passed and the gates been raised, he signaled to the motorman of the traction car to come on. It moved towards and crossed the tracks, followed by the ice wagon. According to one witness, when the horses’ heads were at the gates the driver stopped, and, according to another, he was about to stop. Be this as it may, the plaintiff says he was looking and listening, though his view to the south was obstructed by cars standing on the siding. Apprehensive that there might be danger, he called to the driver, “ you had better stop and take another look.” The driver then asked the gateman, “ How is it, John ? ” and the reply of the gateman, as he beckoned them on, was, “ All right, come on.” The plaintiff and the witness Hones, seated in the front of the wagon, not only heard Eagan, but saw him when he signaled the driver of the wagon to come on. Moore, who saw the approaching train when it was within a few feet of him, jumped from the wagon step and escaped. Under the foregoing state of facts, the court could not have pronounced the plaintiff guilty of contributory negligence, for it was the exclusive province of the jury to say whether he had or had not, under the circumstances, done all that was required of a prudent man. Approaching a grade railroad crossing, with his own view to the south cut off, up to the very point of crossing, he was on the lookout for danger, apprehensive that he might be in its path, and, but for the conduct of the gateman, it might be that he ought to have exercised a higher degree of care; but, whether he did exercise the proper degree was, under the circumstances detailed, for the jury. On the alert, looking as best he could for danger in the direction from which it came, he heard from the defendant’s employee, whose duty it was to guard against peril at the crossing, the assurance that the way was clear, and he saw the beckon to come over as the gateman said “ All right; come on.” Of our many cases which sustain the court in its refusal to direct a verdict for the defendant, on the ground of the plaintiff’s contributory negligence, reference need be made only to Fennell v. Harris et al., Receivers of the Philadelphia & Reading R. R. Co., 184 Pa. 578. We there said, under conditions to which our words were no more applicable than to those in. this case : “ It is a question of fact, as it seems to us, whether, in view of all the circumstances, the open gate, the repeated signals of the flagman, the absence of a warning by the train of its approach and the impossibility of seeing down the tracks until fairly upon them, the plaintiff omitted any precaution that a prudent man should have taken to secure his safety from danger. He was responsible for none of the circumstances to which we have referred. He had the assurance of the defendant company by the open gate and by the positive intimation of the flagman, that there was no train approaching within such a distance as could threaten his safety in crossing the tracks, and there was nothing to counteract this assurance or put him on notice of danger. He knew that his view of the tracks was obstructed, but one who had superior knowledge of the moving trains allayed his apprehensions by signaling him that it was safe to cross at that time, and that he should proceed to do so. In view of all these considerations and his own testimony the question of contributory negligence was surely not a question of law. It depended upon the plaintiff’s credibility, upon the situation of the obstruction to his view down the railroad, upon the opportunity to escape after he saw the train, upon the want of any warning of its approach by the train, and upon the conduct of the flagman.”

Moore, who was standing on the step, to the right of the plaintiff, with an arm around him, and obstructing his view, was able to see the approaching train when within a few feet of the wagon, and made a hairbreadth escape from danger by jumping. That he was able to do so, because he could see the danger when it was almost upon him, is no reason, as a matter of law, why McCarthy, who may not have been able to see it, ought also to have saved himself from it by jumping.

Judgment affirmed.