111 Pa. 430 | Pa. | 1886
delivered the opinion of the court, January 25th, 1886.
In this as in nearly all cases of same class, the two controlling questions of fact before the court below were, 1st. Whether the death of plaintiff’s husband was caused by negligence of the defendant company, and 2nd. Whether deceased himself was guilty of contributory negligence. As to the first question, it is contended the charge of the learned judge, in relation to the duty of railroad companies at public crossings, was calculated to mislead the jury: and in support of this contention, detached portions of the charge, recited in the first and second assignments of error, are specially relied on. Considering these excerpts even apart from their context, we are not prepared to say there is any material error in either of them ; but, if any doubt exists as to that, it is immediately dispelled by reading them in connection with other portions of the gem eral charge. In other words, the charge as a whole appears to be a correct and adequate presentation of the case to the jury.
After referring to the fact that Isaac Coon was killed while in the act of crossing the track of defendant company’s road at Orthodox street and Trenton Avenue in the city of Philadelphia: that this action was brought by his widow,to recover the pecuniary damages sustained bvhis death; and accurately stating the measure of damages applicable in such cases, the learned judge clearly presented and explained to the jury the two questions of fact upon which the case hinged, saying, among other things, that it was the duty of deceased, as he approached the railroad track, to stop, look and listen, and exercise that caution which a reasonable man would take to avoid danger under the circumstances ; that the question there; fore, with regard to him, is whether he took those precautions. If he did, he was not guilty of contributory negligence : if he neglected to do so, he was guilty and plaintiff cannot recover. If he was not guilty of contributory negligence, and the accident
“Now, upon the present occasion the evidence is that there was no flagman at this place; he had gone home, it would seem from the evidence. It is perhaps fairly inferable from the evidence, that during the daytime, ordinarily, there is a flagman at this point, that he goes home at ten o’clock at night, and that he had gone home in accordance with his custom, at ten o’clock on that particular night. This particular place, then, therefore, had no flagman or watchman there to caution people not to cross ; and if there were an3r means of warning except to ring the bell or blow the whistle, I don’t remember it in the evidence. I don’t think there is any evidence of any precaution taken by the company to warn the public of approaching trains at this point, except it be by ringing of the bell and the blowing of the whistle. With regard to the ringing of the bell, the plaintiff’s evidence is that her witnesses heard no bell ring at all. Several of her witnesses testified to that, that so far as they knew or heard, no bell was rung. On the other hand, people on the engine, the fireman, the engineer, and the assistant fireman, * * * all testified that the bell was rung as they approached the crossing. With regard to the whistle, it must be conceded at least, there is no evidence to prove that an3r whistle was blown at all, until the train had got almost upon the crossing. The whistle, according to the engineer, was blown when he observed the man upon the track had not noticed the bell, and when, as he says, he was fifty yards away, and the man was in front of the
“ Whether, gentlemen, the bell was rung and when, whether the whistle was blown and when and how long, are facts which it is your province to determine and not mine. The question in the case is whether sufficient precautions were taken in view of the rate of speed at which the train is actually proceeding ; whether sufficient precautions were taken, on the part of the company to prevent this accident; whether they took those precautions that are usually taken, Vhich experience has demonstrated to be necessary in order to prevent an accident of this kind. If they did take those precautions then they are not to blame, and your verdict should be for the defendant. If they omitted those necessary and usual precautions, and if that omission was the cause of Isaac Coon’s death, then the plaintiff is entitled to the verdict at your hands, if you find that Isaac Coon himself, in attempting to cross the track, exercised those ordinary precautions which a prudent and reasonable man would exercise under the circumstances.”
We have thus quoted, at considerable length, from the charge for the purpose of showing how elearty and accurately the questions involved in the ease were presented to the jury, in connection with the testimony bearing thereon. To some extent at least the evidence was conflicting, and it was undoubtedly the exclusive province of the jury to determine what the facts were. If they found, in accordance with the testimony of plaintiff’s witnesses, that no timely or sufficient warning was given to deceased of the rapid approach of the train, not even by ringing the bell, they had-an undoubted right to draw the conclusion that the company was guilty of gross negligence. On the other hand, if they found that the bell was rung as testified to by defendant’s witnesses, it is still their duty to say, whether that, under the circumstances of the case, was sufficient warning. Whether the ringing of a locomotive bell, without blowing the whistle in time to avoid danger, is a sufficient warning of the approach of a train to a public crossing depends on the circumstances, of which generally in actions for negligence, it is for the jury to judge: Longenecker v. The Pa. R. R. Co., 105 Pa. St., 328.
The second specification of error, as will be seen, consists of the last sentence but one, and the first clause of the last sentence in the charge, omitting the qualification contained in the last clause of the sentence. This part of the charge was not
'As to the third and last specification, it is sufficient to say ■the court was not requested to instruct “ the jury to find for defendant.” If such' instruction had been asked, it would have been manifest error to have given it, under' the circumstances discloséd by the testimony. The case, under all the evidence, was clearly for the jury on both of the controlling questions of fact involved therein. What constitutes negligence, in a giveil exigency, is generally a question for the jury and not for the court. Negligence is want of ordinary care ■under the circumstances. No fixed rule of duty, applicable to all cases, can be established. A course of conduct justly regarded as resulting from the exercise of ordinary'care, under •some circumstances, would exhibit the grossest' negligence under other circumstances; the opportunity for déliberation and action, the degree of dangér, and many' other considerations of like nature, affect the standard, of care which may be reasonably required in a particular case. When the standard shifts, not according to any certain rule, but with the facts and circumstances developed at the trial, it cannot be determined by the court, but must be submitted to the jury. There are cases, however, in which a court can determine that omissions constitute negligence; but, they aré exceptional— those in which the precise measure of duty is determinate the 'same under all circumstances. When the duty is defined, a .failure to perform it is, of course, negligence and may be so declared by the court: Schum v. The Penna. R. R. Co., 107 Pa. St., 8, and cases there cited. The case before us is clearly not within any of the exceptions to the general rule above stated.
Judgment affirmed.
