Cookson v. Pittsburg & Western Railway Co.

Opinion by Mr. Justice Mitchell, The appellant’s train was run northward and after detaching three cars upon a siding by a flying switch, was continued over and beyond the public road, and then backed oyer the crossing again with no brakeman at the rear, and no warning except the' ringing of the bell at the other end, even this being disputed. Under such circumstances the appellant’s negligence, though not formally conceded, did not admit of serious contention. The public road had a down grade towards the track, and plaintiff’s decedent stopped at a point about one hundred and seventy-five feet from the crossing. Here she waited some minutes until the three cars were switched off, and the train had proceeded north over the crossing. She then drove on, and was struck by the train as it reached the crossing the second time, running backwards. The first three assignments of error are to the admission of the opinions of witnesses that the place where the deceased stopped to look and listen, was the best or at least a proper place. The subject of the admissibility of a witness’s opinion was considered in Graham v. Penn. Co., 189 Pa. 149, and the rule there settled that where mere descriptive language is inadequate to convey to the jury the precise facts, or their bearing on the issue, the description by the witness must of necessity be allowed to be supplemented by his opinion, in order to put the jury in position to make the final decision of the fact. But whenever the circumstances can be fully and adequately described to the jury, and are such that their bearing on the issue can be estimated by all men without special knowledge or training, opinions of witnesses, expert or other, are not admissible. This rule was followed in McNerney v. Reading, 150 Pa. 611, and Dooner v. Canal Co., 164 Pa. 17. As already said, the distance at which the deceased stopped was considerable, but evidence was given on the part of plaintiff that this point was on the rise of the hill, and that the view was obstructed more and more in descending to the track, by a stone wall on the right, and by buildings on the left, and particularly on this occasion [194] by one of the cars just switched off by this train, which stopped before it got entirely across the road. There was another place where perhaps a better view of the tracks could be had, but it was so close as to be dangerous in case the horses should become frightened. As the relative advantages and disadvantages of the two places could only be described in a general way, it was a fair case for the witnesses who were familiar with both to supplement their descriptions with their opinions in aid of the jury in reaching a decision. The main argument of appellant however is that the evidence shows incontrovertibly that the deceased was negligent in not stopping at the second point already referred to, a level space just before reaching the track, and therefore the verdict should have been directed for the defendant. The evidence is uniform that there were but two places where a stop could be profitably made, one at considerable distance and the other very close to the crossing. Each had its advantages and its disadvantages. The deceased chose the remoter point, and there was evidence that in so doing she followed the usual habit of people at that crossing. This evidence of itself prevented the court from deciding it to be negligence per se. The usual and customary place of stopping by people using a road cannot be said as matter of law to be an improper or negligent place. The standard of negligence is what persons of ordinary prudence and carefulness would do under the same circumstances, and a general habit of the public to stop in a certain place, is persuasive evidence that that place is the right one. The further the stopping place is from the track the greater will be the chance of an intervening peril before actual crossing. The duty of the traveler is therefore not only to keep a vigilant and continuous lookout, but to stop if a second place affords any increased facility to discover impending danger, but whether there is any such second place is a question of fact which is for the jury if at all in doubt. On this branch the present case is closely analogous and governed by Whitman v. Penn. R. R. Co., 156 Pa. 175, and the remarks there made are applicable to the facts here, “ If notwithstanding the drawbacks of the place where plaintiff stopped, it still had sufficient advantages over other places to make it the habitual choice of travelers on that road, only a jury can say whether or not it was the hest or a proper place to stop, and [195] even if it was, whether considering its disadvantages it was negligence in the plaintiff not to stop a second time on the level before reaching the track.” See also Ely v. Rwy. Co., 158 Pa. 233. Several of the assignments of error are to the language of the charge. Its tone lacked judicial calmness, and in parts at least came dangerously near being inflammatory as to damages, in an action of a class that peculiarly imposes on the judge the duty to repress natural sympathy with the injured and the suffering, and to hold the jury firmly down to the consideration of strict rights and responsibilities. Our books are not without cases of reversal for errors of this kind. But the nature of the issue and the evidence and law applicable to it were correctly set before the jury, and though the tone of the charge was objectionable, we do not think it was so erroneous that we should reverse for that cause alone. Judgment affirmed.