49 Pa. 60 | Pa. | 1865
The opinion of the court was delivered, by
The plaintiff sued for an injury to himself and his property, caused, as he alleged, by the negligence of the defendants. It was the result of a collision. The accident occurred at the intersection of the defendants’ railroad with Dauphin street, along which the plaintiff was driving a horse attached to a covered wagon. At the crossing a regular passenger train on t'he railroad came into contact with the horse and wagon, in consequence, as was averred, of the carelessness of the defendants’ agents. Whether there was such carelessness
That what constitutes negligence in a particular case is generally a question for the jury and not for the court is undoubtedly true, because negligence is want of ordinary care. To determine whether there has been any involves, therefore, two inquiries: first, what would have been ordinary care under the circumstances; and, second, whether the conduct of the person charged with negligence came up to that standard. In most cases the standard is variable, and it must be found by a jury. But when the standard is fixed, where the measure of duty is defined by the law, entire omission to perform it is negligence. In such a case the jury have but one of these inquiries to make. They have only to find whether he upon whom the duty rests has performed it. If he has not, the law fixes the character of his
Now, that it is the duty of a traveller when approaching the intersection of a railroad with a common highway to look out for approaching trains or engines, the court below asserted more than once, and correctly. That standard of duty is fixed by the law/ At the place of intersection there are concurrent rights. Neither the traveller on the common highway nor the railroad company has an exclusive right of passage. Even on a common road, travellers must look out for the approach of other vehicles passing. And this is the more necessary at a railroad crossing, because movement upon such a road is more speedy, and because the consequences of a collision are usually so disastrous. Precaution, looking out for danger, is therefore a duty. It was well said in- Reeves v. The Delaware and Lackawanna Railroad Company, 6 Casey 464: “ The traveller has the obligation of prudence upon him; he is bound to stop and look out for trains, and may not rush heedlessly, or remain unnecessarily in a spot over which the law allows engines of fearful power to be propelled.” Not looking for a coming train is not merely an imperfect performance of duty; it is an entire failure of performance. Had the court been asked to declare failure to look out, until the plaintiff was within a certain distance of the intersection, to be negligence, the case would have been different. That was the state of facts in Pennsylvania Railroad Company v. Ogier, 11 Casey 60. There it would necessarily have been for the jury to determine what degree of vigilance he should have exercised. But not looking at all is an entire absence of vigilance. We think, therefore, the court should have instructed the jury that it was negligence itself, and not merely evidence of it, from which they might or might not find it. This would have left to them to find whether the plaintiff had looked for a train, and if he had not, whether his neglect to look had been a contributing cause of the injury he had received.
The second point proposed was but a repetition of the first, and the answer is obnoxious to the same criticism.
Judgment reversed, and a venire de novo awarded.