North Pennsylvania Railroad v. Heileman

The opinion of the court was delivered, by Strong, J. 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 [63] was submitted to the jury, and of the mode of submission there is no complaint. But the contest in the court below involved also the inquiry how far, if at all, the negligent conduct of the plaintiff had contributed to the hurt sustained by him. There was evidence that as he approached the crossing of the railroad he was seated far back in his covered wagon with the curtains down (closed), that the curtains were tight, though there was a small glass window on each side, and that a person coming down Dauphin street in the direction in which he came, could have seen the railroad track had he looked out, for from seventy to seventy-five yards from its intersection with Dauphin street. Such evidence justified the defendants in proposing their points to the court, 'the first of which was as follows: “.That it is the duty of a traveller approaching a railroad crossing to look along the line of the railroad and see if any train is coming; and if the jury believe the plaintiff failed to take such a precaution, he was guilty of negligence and cannot recover in this suit.” This point the court answered by saying: “ This is one of the reasonable precautions a man is bound to use, and its absence is evidence of neglect.” This was not a full answer to the point. The court conceded that looking out for the approach of a train is a duty, when a traveller is about to cross a railroad track, but instead of charging the jury that failure to look out is negligence, instructed them that it was evidence of negligence. This was not all the defendants asked nor all they were entitled to have. Absence of such a precaution was more than evidence of negligence. It was negligence itself, and it was such as may have contributed directly to the injury, for the uncontradicted evidence was that the plaintiff drove his horse and wagon slowly upon the track in front of the passing locomotive. If he did this without looking along the track, he acted without any precaution against a known danger, and he was not entitled to recover if his want of precaution contributed to his hurt. 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 [64] failure, and pronounces it negligence. Of this there are many illustrations. 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.