O'Toole v. Pittsburgh & Lake Erie R. R.

Opinion by Mr. Justice Dean, The defendant operates a steam railroad running through the borough of Newcastle. Its road crosses at grade South' Mill street diagonally. The New Castle Electric Street Railway has its rails longitudinally on the same street; hence the two tracks cross each other at grade on this street. There are guard gates at the crossing, under the control of the defendant, to be raised or lowered on the approach of a locomotive to the crossing. On the 14th of March, 1891, the plaintiff, a shoemaker by trade, a cripple from birth in both feet, took a seat in the [104] street car to go north, through the town. When the oar came to a point about seventy-five feet from the crossing, a locomotive approached going southwest, the watchman lowered the gates, the street car stopped, the locomotive crossed, the watchman raised the gates, the car started, and as it reached the railroad track was struck by another locomotive following the one that had passed. There is some conflict in the testimony as to whether the gate was wholly or partly closed at the moment of collision. A house obstructs the view of the track in the direction from which the locomotive came, except when quite near the point of crossing. The plaintiff, in the collision, was thrown out and seriously-injured. Under the instructions of the court, the verdict was for defendant. There was some evidence, on part of defendant, that the collision was wholly the result of the negligence of the street car company ; that those in charge of the car disregarded the warning of the watchman and the lowering of the gate for the second locomotive to pass. But that the collision was the result of the negligence of one or other company'-, or of the concurring negligence of both, could not have been doubted on the evidence. The learned judge of the court below, on the evidence, properly instructed the jury : (1) That if the collision was the result of negligence of both parties, each was answerable to plaintiff, and he could maintain his suit against either. (2) If the collision was the result wholly of the negligence of the street car company'-, the defendant was not answerable. But the plaintiff, in his several assignments of error, complains of the instructions with reference to his duty as a passenger under the circumstances here developed. The 5th and 6th assignments in substance embrace this alleged error. The court instructed the jury: “ If Michael O’Toole upon that street car could have seen the engine, and did not undertake to see it, or did not exercise reasonable care for the purpose of ascertaining whether they could proceed across the railway track in safety, then he would be guilty of contributory negligence. . . . And if, by looking up the railroad at that time, he could have learned whether an engine was or was not approaching, and could at that time have gotten off the car if he discovered an engine approaching, and did not do that, then he would be guilty of contributory negligence and could not recover.” [105] Then farther on is this instruction: “ But the fact that safety-gates are erected does not in any way affect the responsibility or the liability of the railroad company in the operation of its railroad, or in the management of its trains. . . . But if you conclude that the gates were not lowered, that fact of itself is not sufficient to warrant you in finding a verdict for the plaintiff. Had the plaintiff been walking along the street, the fact that the gates were not lowered would not be an invitation to him to cross the railroad in violation of the rule of law that he shall stop, look and listen, when approaching a railroad crossing. And that rule is not taken away because the plaintiff happened to be in a street car at the time.” Defendant’s counsel argues that these are mere excerpts from the charge, and standing alone do not present fairly the instruction really given to the jury; that this can only be properly understood when read in connection with what preceded and followed. Certainly, the charge must be taken as a whole, to arrive at the correct meaning. We have carefully read it in the light of the evidence, and are forced to the conclusion the tendency was to mislead the jury. We find no evidence which warranted such instruction. Negligence is the absence of care according to the circumstances. There was evidence here from which the jury might have found there was no negligence on part of defendant, and that the street car company was negligent; they might have found the defendant was negligent and the street car company was not; they might havé found both were negligent. But a careful search for any evidence of negligence, under the circumstances, on part of plaintiff, has been fruitless. He was a passenger of the street car company, which had contracted to carry him safely; he had a right to presume they would exercise the care required in this undertaking. When the car approached the crossing, it stopped; he was in no danger then, and had no reason to apprehend any; when it started, he had a right to believe it did so because the crossing was clear; running a distance of about seventy-five feet, the collision occurred: in the very few seconds which were necessary to accomplish this distance, the court in substance instructs the jury that it was plaintiff’s duty to be on the lookout to learn if the railroad track could be safely crossed; and if, by so doing, [106] he could have seen the approaching locomotive, ordinary care required him to jump off. To impose such a duty on a passenger under these circumstances is going much further than any court has yet gone. All experience has demonstrated that to get off a moving car is highly dangerous; therefore, it is held that such an act is negligence per se, and the passenger if thereby injured, except in very rare cases, is guilty of contributory negligence and cannot recover. Hence here, if the plaintiff had been on the lookout, and had seen the approaching locomotive, ordinary care did not require he should make a dangerous jump to escape a problematical collision. Admit he had some reason to apprehend danger if he remained in the car, at the worst, this was only to him, a possible danger; a' careful man, ignorant of the power of control of the engineer over the locomotive or of the motorman over the electric car, and knowing nothing of the rules governing them in approaching the crossing, might very well think one or the other would stop before reaching it. He had no right or power to control or direct those in charge of either; he was warranted in assuming that they knew their business better than a shoemaker, and would by proper care avert the possible collision. Therefore, holding him rigidly to the rule of ordinary care, at best, he had a choice of perils; a choice to be exercised on the instant, by a man crippled in both feet, and consequently a not very agile jumper. He had been put in this position by no act of his own, but by the negligence of one or other, or both of the railroad companies. We fail to see any evidence of absence of ordinary care here, under these circumstances. The instruction, in substance, that ordinary care required plaintiff to perform the duties of conductor and motorman; that practically, he was to exercise the same care as if he had been driving his own horse, “ stop, look and listen,” was erroneous, and calculated to mislead the jury. It would have been but a step further, and a short step at that, to have directed the jury to inquire whether plaintiff had not been guilty of contributory negligence in taking passage on a street car which he knew in its route would cross a steam railroad at grade. The law imposes no such duty upon the traveler by public conveyance, as laid down in this charge. The cases of Crescent Township v. Anderson, 114 Pa. 648, [107] and Dean v. Pa. R. R. Co., 129 Pa. 514, cited and relied on by appellee as sustaining the instruction complained of, really recognize the opposite doctrine. Both are cases Avhere the plaintiffs, when injured, were riding in private vehicles driven by another, and both were injured by the contributory negligence of the driver, and a third party, the defendant. In both, the decision was put on the ground that the negligence of the driver of the horse was apparent, and he was to some extent under the direction or control of the party injured. There was no attempt, by remonstrance or otherwise, by the party injured, to restrain the negligent driver. The negligence of the driver was not, in either case, imputed to an innocent plaintiff, but the latter was held to have participated in the negligence which caused the accident. Carlisle v. Brisbane, 118 Pa. 544, is to the same effect, and the decision is expressly put on the ground that, although the conveyance was a private one, the injured party did not, to any degree, participate in the alleged negligence of the driver. The plaintiff here was a passenger in a public conveyance ; he conformed to the rules of the company ; kept his seat, relying on the vigilance and care of those in charge of the car, as his contract gave him the right to do. There was upon him no duty of moving the car with caution at dangerous crossings; no duty of watching for possible collisions, and jumping off in apprehension of them. Consequently the learned court below erred in its instructions embraced in plaintiff’s 5th and 6th assignments of error. The judgment is reversed and v. f. d. n. awarded.