Pennsylvania Railroad v. Goodman

| Pa. | Jul 6, 1869

The opinion of the court was delivered,

by Agnew, J.

The verdict in this case appears to us to have been very unwarranted, and ought to have been set aside. The evidence of negligence on part of the plaintiff below in approaching the railroad crossing is very strong. An accurate survey of the road travelled by the plaintiff and the railroad has been made. Seventeen Jhundred feet of the Colebrook road by which the plaintiff approached the crossing has a descending grade to the railroad of 48 feet, diminishing gradually and with very little unevenness. The civil engineer, in walking these 1700 feet, kept his eye on the whistling post from which the train had come, and which stood 825 feet from the crossing, and he testifies he had the post in sight all the way to the crossing, except at a single spot where he lost the view, but could regain it by a single step backward or forward. The plaintiff’s witnesses admit that the railroad track is in sight all the way except at a spot from 15 to 20 yards from the crossing. Thus, for 1700 feet the railroad is clearly in view until the traveller on the Colebrook road reaches within 60 feet of the crossing, and then the view is intercepted only a few feet. This was to the eyes of persons on foot; but the seat of an ordinary light wagon is about 4 feet from the ground, while to the eye of" a man of ordinary height it is about 2J feet more from the seat, making about 6J feet from the ground, thus giving 'to one seated in a wagon a foot or more height. The speed of the train at this point was according to schedule-time 27 miles an hour, and by the testimony of the engineer and another, 28 miles. The speed of the plaintiff was 4 miles an hour or more — but assume 4-|- miles. The train then travelled at a speed of 6†¶ greater than the plaintiff, the former going 41 feet in a second, and the latter 6¡% in the same time. Their relative distances from the crossing were therefore as follows: When-the plaintiff was 60 feet off the train was 372 feet — plaintiff 133, the train at the whistling post 825 feet, and when the train was one-third of a mile 1760 feet off, the plaintiff was 284 feet. The civil engineer testifies that when standing at a point on the Colebrook road, 50 feet from the- crossing, he could see the rodmen on the railroad 1222 from the crossing — at 150 feet he could see 1750 — at 250 feet he could see to the mile-post 2000 feet from the crossing, and at the stable 734 feet, he could see along the railroad 2600, and more — while at the top of the rise (1700 feet off) he could see from 3000 to 4000 feet along the railroad. Thus it is ascertainable, from the testimony of both sides, that when the train was 1760 feet from the crossing, and the plaintiff 284 feet, he could see the train approaching while he travelled 224 feet, until.ho reached the point 60 feet from the crossing where it is said the view is intercepted a few yards, and when he .had arrived at this point the train was within 372 feet of the crossing. The fact that he did see the train is also testified to by seven witnesses, of whom four were passengers having no interest in the suit, all of whom prove his admissions that he saw the train, but his horse became unmanageable, and he could not hold him. Another important fact is, that the locomotive struck the hind wheel of the wagon, showing that the plaintiff must have crossed just in front of#the train. Now, the seat of an ordinary wagon to the head of the horse is from 12 to 15 feet. Assuming the latter, and the train was within 93 feet when the horse came to the railroad. Thus we have the case of a traveller in an open wagon, in broad daylight, descending a gradual slope for more than a quarter of a mile within plain view of a railroad upon which a train could be seen coming at a great distance, meeting that train and crossing the track so exactly in time that the hind end of his wagon is-struck by the engine. There cannot be a doubt that the event happened either from the unruliness of the horse or from the most culpable negligence of the plaintiff in not looking out for a coming train. It was either his misfortune o.r his fault, for neither of which was the company liable. And as to the company, the weight of the evidence is, that the engineer gave the signal for crossing the road. Eight witnesses, of whom four were passengers, swear affirmatively that they heard the whistle. On part of the plaintiff, five Say they heard no whistle, and five that they heard a whistle at or near the crossing, which some called the downbrake signal. Thus one half contradict the other half, while those who say they heard the downbrake whistle are clearly mistaken, as from the testimony it is clear this train used the Lockridge patent chainbrake, which is controlled by the engineer on the engine. Handbrakes cannot be used with the patent brake, so that there is no need of a signal to the brakeman. The truth, therefore, clearly is, that five of the plaintiff’s witnesses corroborate the defendants’ witnesses, that the road signal was given, only differing in the place where it was given; to'wit, nearer to the crossing.

This is not a case where negligence can be presumed against the railroad company, the plaintiff not being a passenger. Each party was in the lawful use of an appropriate highway, and each was bound to a correlative duty, the plaintiff to approach the crossing cautiously, and to observe the approach of trains, and the defendants to give the timely and proper warning of the coming of the train. From the facts before us we think the verdict ought to have been different and that the court below should have set it aside. Yet we perceive no means of reaching the injustice on a writ of error, without ourselves undertaking to decide the facts which fell within the province of the jury. The credibility of the witnesses, together with the varied facts and contradictions in the testimony, necessarily carried the case to them; and our difficulty is, we cannot say the court erred in point of law without deciding that the judge should have taken the facts from the jury and instructed them peremptorily that the plaintiff was guilty of concurring negligence. The charge of the court is fair and sound. A judge is not bound to express his opinion on the facts; though we think in this case he would have done a service to justice, had he pointed out to the jury with some emphasis the true attitude of the case on its facts.

Looking at the entire charge on the subject of damages, we think it clearly confined the damages to a pecuniary compensation for the loss of Mrs. Goodman’s service. The court told the jury in express language that nothing is allowable for the suffering of the deceased, nor for the wounded feelings of the plaintiff. They said also that the plaintiff's loss was to be measured by a just estimate of the services and companionship of the wife. It is thought that this meant by way of solace for the loss of companionship. But all the judge said on this point made it evident he did not mean compensation by way of solace, and could not have been so understood by the jury. Companionship was evidently-used to express the relation of the deceased in the character of the service she performed. He merely meant to say that the loss should be measured by the value of her services as a wife or companion. The form- of expression perhaps was not the best selection of words, yet it certainly meant no more than that the pecuniary loss was to be measured by the nature of the service characterized as it was by the relation in which the parties stood to each other. Certainly the service of a wife is pecuniarily more valuable than that of a mere hireling. The frugality, industry, usefulness, attention, and tender solicitude of a wife and the mother of children, surely make her services greater than those of an ordinary servant, and therefore worth more. These elements are not to be excluded from the consideration of a jury in making a mere money estimate of value. Finding no error we can reach, the judgment must be affirmed.