Quigley v. Del. & H. Canal Co.

142 Pa. 388 | Pennsylvania Court of Common Pleas, Luzerne County | 1891

Opinion,

Mr. Justice Clark:

In the general charge, the court instructed the jury that, inasmuch as it cle.arly appeared in the testimony the engineer had the locomotive in such control that he was able to stop at least twenty feet above the crossing, it could not be said, under the circumstances of this case, that he was running at a negligent rate of speed; and that, if the usual warnings had been given, the engineer would be taken to have performed his full duty in stopping the engine before he arrived at the crossing.

But the jury found that no warning had been given; that the whistle was not blown, nor the bell rung; and, whilst we think the weight of the testimony was perhaps to a different effect, the court would not have been justified in withdrawing that question from the consideration of the jury. The testimony on part of the defendant, it is true, was positive. The engineer and the fireman, and also Hopkins, testified distinctly to the fact that the whistle was blown, not only at the bridge, one thousand feet, but at the third telegraph pole, four hundred feet above the crossing. The testimony on part of the plaintiff, however, was not of a purely negative character. Quigley and Muench testify that they did not hear either the whistle or the bell until about the time the lead horse was on the crossing. They say further, however, that, as the passenger train was about due, they were giving particular attention, were listening for the whistle, and that if. it had been blown they would have heard it. Under these circumstances, their testimony is more than merely negative, and therefore could not be disregarded. The jury has found the fact, and that this failure to give proper warning, as the engine approached the crossing, was an act of negligence on the part of the engineer which is to be imputed to the company.

The jury has also found, upon competent testimony and under proper instructions, that the driver of the wagon, before attempting to cross the railroad track, stopped at a proper place, and looked and listened for the approach of a train, and did not hear the engine; and that having started and driven upon the track, when he saw the engine approaching as it did, he acted as an ordinarily prudent man would have acted, in view of all the circumstances, in jumping off the wagon to avoid the peril which seemed imminent, and in abandoning the horses and wagon to the probable consequences.- The verdict of the jury involves the fact that the driver was not guilty of any negligence which contributed to the injury. Assuming this to be so, what was the proximate cause of the injury ? The purpose of giving a warning before a railroad train or locomotive engine comes to a crossing, as the learned judge very properly said in the general charge, is not only to prevent persons from driving on the track in front of the approaching train or engine, but also to give notice to travelers upon the highway, so that they may not approach within dangerous proximity to the train. The alleged neglect of this duty caused the driver of this wagon to go upon the track, and into the peril to which he was there seemingly exposed. The dropping of the lines and the leap from the wagon, according to the finding of the jury, were such acts as an ordinarily prudent person would have done to extricate himself from the threatened danger ; and they may therefore be said to have been necessitated by the negligent conduct of the company. It was the fright of the horses, and their abandonment by the driver, that caused the injury; but these causes were produced by the negligence of the defendant, who, without warning, ran the engine into such dangerous proximity to the wagon as to produce this fright of the horses, and to oblige the defendant, who felt that he was in peril, to jump from the wagon and let the horses go without control.

It might not, perhaps, have been foreseen exactly how, or to what extent, injury would result; but the engineer, as we said in Bunting v. Hogsett, 139 Pa. 363, would be held to have foreseen whatever consequences might ensue from his negligence without the intervention of some other independent agency; and both his employer and himself would be held for what might in the nature of things occur in consequence of that negligence, although in advance the actual result might have seemed improbable. It is not certainly known that the lines were caught in the wheel. The witnesses say that it is “ likely ” they did; we do know that they were liable to be caught in the wheels, and this would account for the lead horse having been turned around as he was. If the engineer, by his negligence, compelled the driver to abandon the horses, he would be presumed to have foreseen what was reasonably liable to occur. There was not any intervening cause, disconnected with the primary fault, and self-operating, shown to exist in this case, to affect the question of the defendant’s liability. The negligent act of the engineer was the natural, primary, .and proximate cause of the injury.

The judgment is affirmed.