Owens v. Peoples Passenger Ry.

155 Pa. 334 | Pa. | 1893

Opinion by

Mr. Justice McCollum,

The specifications from one to six inclusive complain of the submission of the case to the jury and of the charge of the court. In support of the claim that the ease was not for the jury, it is urged that the evidence failed to show any negligence on the part of the appellant, and that it showed negligence on the part of the appellee which caused or contributed to the injury he received. It was conceded by the learned court below that if the appellant’s explanation of the occurrence was accepted by the jury as verity, there could be no recovery against the railway company. But unfortunately for the appellant its explanation was discredited by testimony on the part of the appellee which showed the absence of negligence on his part and the presence of negligence on its part. This conflict in testimony material to the issue made it necessary to refer the case to the jury to ascertain whether the cause of the accident was the mutual fault of the parties, and, if not, whether it was attributable to the default of the appellee or of the appellant. The reference of these questions to the jury resulted in a finding that it came from the unassisted negligence of the latter.

Wm. H. Owens, the appellee, was, at the time and place of the accident, in the service of the water department of the city of Philadelphia, and lawfully engaged in the prosecution of a work which it was the duty of the municipality to perform. It was a work which to some extent interfered with and obstructed the movement of the cars of the railway company, appellant, but the right of the city to occupy the street in the manner it did for the purpose of carrying it on, is not disputed. The appellee at the time he received the injury complained of was where his duty to his employer and the proper performance of the task to which he was assigned required him to be, and it is settled by the verdict that he was not negligent in being there. It was within the knowledge of the appellant company that the city’s employees were at work in and about the ditch at the point where the railway tracks crossed it. It was requested by these employees to send a man to superintend or assist in moving the cars at this point, and it complied with their request. Its method of effecting a crossing was to bring and stop its car as near to the ditch as was practicable, and having detached the horses from it and led them upon the street beyond the north rail of the track to again attach them to the car by means of a rope about fifteen feet in length and slowly draw it to the other side. In accomplishing this movement the horses were led by one of its employees walking backwards along the street outside of the north rail, its driver followed the horses holding the swingletrees in one hand, and the reins in the other, and its conductor occupied the front platform of the car with his hands upon the brake. It appears in the testimony without contradiction that when its employees were in readiness to move a car across the ditch in the manner stated, they were accustomed to notify the employees of the city at work there, and that the only time they omitted to do so was when they started the car by which the appellee was struck and injured. The excuse they make for this omission is that they looked ahead before starting the car, and discovered the way was clear. It is not possible to read the testimony on this point without receiving the impression from it that the city’s employees expected to have notice of the starting of the car in time to get out of its way, and that the employees of the railway company, with the single exception mentioned, gave it. It is manifest from the testimony of the company’s employees that they considered it was their duty to exercise care in the movement of the cars at this point for the protection of the men at work in and about the ditch, but it does not inform us whether this sense of duty was quickened by instructions from the company, or was the result of their own just appreciation of the situation. It seems to us, however, that the notice they were accustomed to give was a reasonable and prudent act under the circumstances shown. The value of such notice sufficiently appears in the fact that when it was given there was safety for the workmen, and the first omission to give it was followed by the injury which is the subject of this litigation.

The cases which are descriptive of the rights and duties of persons in crossing steam or street railways are not applicable to the situation presented by the evidence in this case. The city’s consent to the occupancy of a portion of the street by the railway company was not destructive of its right to repair or construct works necessary for the health of its inhabitants or the protection of their persons and property. In the exercise of this right it was bound to carefully avoid any unnecessary obstruction of the company’s road or interference with its operations, but it is not pretended there was such obstruction or interference in this case. It was engaged, with due regard to the interests of all concerned, in a necessary public work. It was exercising its lawful right in obedience to its obvious duty. The appellee was in its service and lawfully in the place where he was struck by the appellant’s car and permanently disabled. Was the injury he received caused by the negligence of the railway company? This was not, upon the conflicting evidence in the case, a question of law for the court, but it was a question of fact for the jury to whom it was referred. Was it submitted under correct instructions ? The appellee contends that it was not and criticises the portions of the charge which relate to contributory negligence and the measure of damages. An examination of the charge, however, shows that this criticism is without just foundation. It is true that the appellee’s first and second points contained no reference in terms to the effect of contributory negligence on his right to recover, but as the facts recited in the points conclusively negatived the existence of such negligence there was no error in the affirmance of them. When the affirmance of the points is considered in connection with the subsequent general instruction on the subject of contributory negligence, it is clear that the appellant was allowed the full benefit of any default of the appellee which was wholly or partially responsible for his injury. But in the testimony submitted by the appellee in support of his claim no such default appeared, and the jury were plainly told that, if they believed the evidence of the company’s employees, he was guilty of contributory negligence and could not recover.

In the instruction as to damages, there was no intimation that they “ were to be assessed without the application of any rule of law whatever,” as is claimed by the appellant. On this point the learned judge said to the jury: “ If you find for the plaintiff he is entitled to recover such an amount as will compensate him for his pain and suffering, for any amount of money that he has expended by reason of the injury, for any loss of wages that he has been deprived of or been unable to earn up to the present time by reason of the accident, and, if you believe it is a permanent injury, for loss of earning power for the balance of the time that the injury will prevent his working.” The compensation referred to in the language which constitutes the sixth specification was plainly such as was defined in that portion of the charge we have quoted. There was, therefore, no reasonable ground for misapprehending the instructions on this point, and as the appellant has not alleged that there is error in the instruction we have quoted, the subject requires no further consideration.

The remaining specifications may be considered together. They complain of the admission of evidence showing that the appellee was in the service of the city and in the proper performance of the work assigned to him, at the time he received his injury. We think the evidence in its general scope and purpose was relevant on the question of his alleged contributory negligence, and that there is nothing contained in the specifications which requires a reversal of the judgment. All the specifications of error are overruled.

Judgment affirmed.