Reading & Columbia R. R. v. Ritchie

Mr. Justice Green delivered the opinion of the court, March 19th 1883. It is difficult to understand upon what theory of the testimony, the verdict in this case was rendered by the jury, or permitted by the court. There was no proof of negligence by the defendant, and there was affirmative, uncontradicted, and unim [431] peached testimony showing contributory negligence on the part of the deceased. Four of the plaintiff’s witnesses, being 'all who were in the vicinity at the time of the accident, to wit, James Sell, Charles II. Miller, Daniel Leininger and Daniel Adams, testified that three whistles were blown, one long and two short, by the approaching engine, before it reached the crossing, and they were all heard by all of the witnesses. Three of these witnesses were at or near the Fritztown station, and one Daniel Adams was at the tool house along the railroad, about two hundred to three hundred yards beyond the crossing at which the, accident occurred. The train was going east from Lancaster to Reading ; the place of the accident was a public road crossing, skuate about nine hundred and fifty feet east, or. towards Reading, from the Fritztown station. The first or long whistle was blown just above a bend in the road, before reaching the Fritztown station, and the second and third were blown after turning the bend and coming within sight of a signal board at the station to denote whether the train should stop for passengers. In addition to the foregoing, another witness, Isaac Steffy, testified that he was at the tool house with Daniel Adams when the accident happened, and heard the whistle of'the approaching train. He also said he had measured the distance from the crossing to the tool house and it was one thousand and thirty-four feet, so that it was an undisputed fact that notice of the approach of the train was given, in the usual way, by the, sound of a steam whistle, which was loud enough to be heard a' considerable distance beyond the place of the accident." Another witness for the defendant, George Freeman, living’ between five hundred and six hundred yards from the Fritzown, station also heard the whistle. Four witnesses for'the plaintiffs', and two for the defendant, concur in their testimony that the alarm was given, and at a sufficient time before the crossing was reached, to enable a person approaching the railroad along the public road to abstain from an attempt to cross. Two witnesses, one for the plaintiff, and one for the defendant, testify that they heard the alarm at a point several hundred yards beyond the crossing. There is no opposing or contradictory testimony in. the .case. Facts thus established cannot be spoken of by the court or considered by the jury as disputed or controverted facts. They are entirely undisputed, proved by both sides and denied b,y neither. Hence the learned judge of the court below was clearly and gravely in error in leaving the question whether the whistles were sounded, to the jury, :as an open and undetermined question to be decided by them,‘.as was done in the portion of the charge covered by the fifth assign^ ment. This error was seriously enhanced by the subsequent language of the same assignment, in which the court told the [432] jury that although the sound of the whistles was heard by persons beyond the place of the accident, it might be no evidence that it was heard by the person injured. Again in the same assignment the learned court propounded the ease of an engineer willfully rushing upon a man whom he saw on the track before him, making no effort to stop, when he knew the man could not escape in time, as a possible answer to the proof of notice by the whistles. As there was not a particle of proof of any such state of facts in this case, such a line of remark was entirely unwarranted and was error of the gravest character. It could only serve the purpose of misleading the jury. Upon the entirely undisputed testimony it was tlie clear duty of the court below to charge the jury that the defendant was not guilty of negligence so far as giving notice of the approach of the train was concerned. The only other possible basis for a charge of negligence to rest upon was the speed of the train, but here also there is an entire absence of testimony to support the charge. The train was going at the rate of twenty-five to thirty miles an hour, according to the testimony of the witnesses who spoke upon that subject. Had it been running at tli'at rate through the streets of a town or village the question of negligence in this respect could well have been left to the jury who would no doubt have determined it against the company. But there was neither town nor village, nor any aggregation of houses,at the place of this crossing. The village of Fritztown was half a mile distant.' John Sell, one of the plaintiff’s witnesses, said the nearest house to the crossing was one hnndred to two hundred yards away, and that the next nearest houses were two, which were three' hundred yards off. He also said there was no village either at the crossing or at the Fritztown station. There was a short and shallow cut about ten or eleven feet deep at and near the crossing, on the railroad and on the public road. The railroad extended from the crossing to the station in a straight line so that a person standing on the track or within twelve or fifteen feet of the track at the crossing could see the road all the way to the station. In such circumstances it cannot be considered that a speed of twenty-five to thirty miles an hour is any evidence of negligence. The very purpose of locomotion by steam upon railways is the accomplishment of a high rate of speed in the movement of passengers and freight. It is authorized by law, and a railroad company in propelling its trains at high speed along its tracks in the open country is simply engaged in the lawful exercise of its franchise. If it is evidence of negligence that a train is run at this rate of speed, it must be because running at a less rate is a legal duty, but there is no such duty established either by statute or decision. While there may of [433] course, be circumstances which require a diminished speed, it is only the force of those circumstances which creates such a duty. None of them are here present. This train was running through the open country, in its accustomed course, in the exercise of the lawful powers of the company, with no dwellings or other building in immediate proximity, neither through nor over any municipal streets, and in observance of the law requiring signals of its approach. In such circumstances we fail to discover any evidence of negligence in the mere fact that the rate of speed was twenty-five to thirty miles an hour. In addition to the foregoing consideration there was affimative and uncontradicted evidence showing that the deceased was guilty of contributory negligence. But one witness saw him approach the track. He saw the deceased first on the public road at a distance of about 100 yards from the railroad moving directly towards the track and proceeding, without stopping until the moment of the accident, when he could no longer see him on account of the cars being higher than the wagon. He was asked. Q. Up to the time you last saw the wagon did ho stop the team at all ? A. When I did not see him any more the not seeing him, and the crash of the accident, and the horse running'away on the other side was about one and the same moment. Q. But during the time you saw him he did not stop? A. No, sir. There was not a particle of testimony in contradiction of this, and the mere fact of the accident was so strongly in corroborationof it, that it is impossible to believe that the deceased performed his legal duty of stopping, looking both ways and listening for approaching trains before going upon the track. The presumption that he did, was overcome by the opposite proof. The court should have instructed the jury in plain and simple words that if they believed the witness, the deceased was guilty of contributory negligence and their verdict should be for the defendant. In Pennsylvania R. R. Co. v. Beale, on p. 509, we said : “ But the fact of collision shows the necessity there was of stopping, and therefore in every case of collision the rule must be an unbending one.”. . . . “ There never was a more important principle settled than tliiit the fact of the failure to stop immediately before crossing a railroad track is not merely evidence of negligence for the jury, but negligence per se and a question for the court.” In Pennsylvania R. R. Co. v. Weber, 26 P. F. S. on p. 168, Mr. Justice Williams, delivering the opinion of the court said: “If as suggested in the point, the uncontradicted evidence in the case shows that the decedent did not stop before driving on the track, then he omitted a plain and positive duty, and the court should have declared its omission negligence as a matter of law. But if there was no direct [434] and positive evidence showing that he did not stop before driving on the track, then the learned judge was clearly right in refusing to withdraw the case from, the jury and in saying as he did ; c We cannot affirm this point, but say again, that the first presumption of law is that he did stop, look and listen. But this presumptiou will give way to the actual truth that he did not do so.’ ” Of course, where there is no direct testimony on the subject the presumption is sufficient and will prevail. But where there is affirmative, direct and credible testimony that the person injured went upon the track without stopping to look and listen, the presumption is rebutted and displaced. The learned court was also in error in saying that the rules of the company required that trains should not be run over crossings faster than at the rate of six miles an hour. That restriction applied to certain specified cuts, but not to crossings generally, and the remark would naturally tend to mislead the jury. We think also that the seventh assignment is sustained. It must be confessed that it is not easy to understand the precise meaning of the charge, and there is in some portions of it a liability to conflicting interpretations which might confuse the mind of the ordinary juror. Upon the whole case we are clearly of opinion that the fifth point of the defendant should have been affirmed and a verdict for the defendant directed. Judgment reversed.