Ash v. Wilmington & Northern R. R.

Opinion by Mr. Justice Williams, The plaintiff’s husband was crushed under the cars of the defendant company, and this action was brought by her to recover damages. The cars were at the time upon a siding or track belonging to the rolling mill of Kurtz & Son, and the plaintiff alleged that the death of her husband was due to the negligent handling of the cars, and to the neglect to give warning that the work of shifting the cars was in progress. The de [136] fendant denied the want of care by its servants, alleged that the cars were properly handled and the necessary signals given, and asserted that the injury to Mr. Ash was due to his own negligence. An examination of the testimony shows tHa't the stock and supplies used in the rolling mill were brought into it upon cars over this siding. Each morning, at about the same hour, an engine belonging to the defendant company came to the mill with loaded cars, and left them to be unloaded, as the material was needed in the mill during the day, and it took away the empty cars which had been unloaded during the previous day. Mr. Ash was a carpenter, and had been at work in or near the mill for ten or twelve days, and within a short distance of this siding. On the morning of the accident an engine was at work as usual shifting the cars upon this siding. Two empty cars had just been dropped into the mill and brought to a stop by the brake. The engine had gone a few rods for another, which it was shunting against the two empties in order to couple to them, preparatory to drawing them out of the mill and taking them away. Just at this moment Mr. Ash approached the track from one side, wi,th a piece of scantling in his hand, and, without stopping, looking or listening, stepped on the track in front of the .cars. The impact of the shunted car drove the others suddenly forward a few feet, and upon the body of Mr. Ash. These facts were not in controversy. What was their legal effect? The defendant’s 3d point drew the attention of the court to this question, and asked that the jury be instructed that, under the circumstances disclosed, “ Mr. Ash was bound to stop, look and listen,’ just before crossing the railroad track, and, as he did not do so, the plaintiff cannot recover.” The learned judge made answer as follows : “ As you will see by our general charge, I cannot affirm that point. I do not so understand the law.” The 5th point, among others, also raised the same question, and asked an instruction that the failure to stop, look and listen, was contributory negligence that would prevent a recovery. The learned judge again answered: “ I cannot affirm that point either,” and he proceeded to say upon the general subject thus brought to his attention: “We have said to you what our view of the law is upon that question, and therefore when the defendant asks me to say what is set forth in these points, I am [137] compelled to disaffirm them, because I differ with him in that view of the law.” Turning now to the general charge to ascertain what instruction the learned judge gave to the jury on the subject, we find the following: “ If, therefore, in your opinion this siding was being used at the time named, and Mr. Ash knew it, or the evidence is such as leads you to believe he should have known it, then it was his duty to stop, look and listen, before he attempted to cross it. It was just as dangerous for him to attempt to cross the track at that time as it was to cross any railroad track in active operation.” This left two questions for consideration in determining the measure of care incumbent on Mr. Ash. Was the siding being used at the time the accident happened ? If so, did Mr. Ash know it, or had he such knowledge as brought notice home to him of that fact ? The first of these was not a question but a fact, on which the plaintiff’s right to recover depended, and which was not controverted, and could not be. The jury was left, therefore, to inquire if Mr. Ash knew this fact, with the idea that if he did he was bound to the exercise of care, while if he did not, then no duty rested on him, but he was at liberty to go, as the evidence shows that he did go, upon the siding in front of the standing cars, without the slightest effort to inform himself of the situation. A single glance would have disclosed the impending danger, and enabled him to avoid it; but, if the jury should find that he did not know what that glance would have disclosed, he was not bound to make it. In other words, he was under no duty to inform himself. This is not an accurate statement of the rule, and, as applied to the facts of this case, was misleading. Mr. Ash had been at work in or close by this mill for ten days or more. Each morning an engine had brought several ears into the mill, and removed those left on the morning before. The existence of the siding, and the use to which it was put, were necessarily within the knowledge of the employees at work in and about the mill. Mr. Ash may not have known that it was in actual use when he approached it. Let us assume that the jury found that he did not, for reasons that were satisfactory to them, and sufficient to justify the finding. But he knew the fact that the siding was across his path, that two cars were upon it, that they were to be taken away at some [138] time that day, and he owed it to himself to see whether the work of removal was in actual progress before putting himself upon the track. If he had taken the trouble to look he would have seen the car approaching that the engine had just thrown in on the siding, and, by waiting for an instant, until the cars were removed, could have crossed the track in safety. Because he did not look, he put himself in the way of the cars just in time to lose his life. We think the jury should have been instructed that, whether he knew the siding was at that moment in actual use or not, it was his duty to inform himself of the situation, by the exercise of his own senses; and if his death was due to his neglect so to inform himself, such neglect was contributory negligence, and would prevent a recovery. If one approaching a crossing in a public street should rush forward without stopping, looking or listening for an approaching train, and reach the middle of the track, just in time to be crushed by a train that he would have seen if he had looked, no one would doubt that the failure to inform himself, or to try so to do, would be gross negligence. If one passing along a street in the daytime walks against a temporary obstruction lawfully in the highway, which he should have seen by the exercise of ordinarj' care, he must blame himself if he suffers harm by contact with it. It is not enough, therefore, that we try to avoid dangers of whose existence we have knowledge ; we must exercise ordinary care, by the use of our senses, to detect the presence of danger of which, until thus discovered, we were ignorant. This is the reason of the rule that one approaching the track of a railroad, with a view to cross it, must stop and look and listen. The instinct of self-preservation might be trusted to keep the traveler from getting in front o £ a train that he knew was approaching the crossing. The rule requires him to inform himself whether a train is approaching or not. When his senses afford him the information he acts upon it at his peril. So in the case in hand. We do not say that before crossing a siding like that belonging to this mill, a man must, under all circumstances, stop, look and listen, but we must say that it is his duty to see if it is in actual use at the time he approaches it, and not to walk into the open jaws of death, when the exercise of ordinary care would have made their position apparent. The judgment is reversed.