Crane v. Pennsylvania Railroad

Opinion by Mr. Justice Stewart, The plaintiff’s husband was killéd by a passing engine while attempting to cross the tracks of the defendant company at a public crossing with his team. The negligence charged in the statement was as follows : “ And the said defendant, through the carelessness and negligence of its servants and employees on aforesaid date, to wit: May 25, 1906, carelessly, wrongfully and negligently ran or drove one of said defendant’s engines rapidly, without giving warning, over and across said public highway at the crossing aforesaid, so that the said David Crane on said date, to wit: May 25, 1906, while passing along and upon said road or highway at the crossing aforesaid, using due care and caution, was struck,” etc. If we are to give the words here employed nothing beyond their exact and literal meaning, the charge of negligence was fully met and answered by the testimony of plaintiff’s own witnesses, for a number of them testified that a signal by whistle was given at the accustomed place. A strict construction would make the charge mean that no warning whatever was given; but it was evidently intended to charge that no adequate or sufficient warning as measured by the duty of the defendant under the circumstances was given. The learned trial judge so understood it; the case was tried on this theory, and the absence of exceptions shows the defendant’s acquiescence. Defendant’s fourth point, the refusal of which is the subject of the first assignment of error, was not directed to this feature of the case; it had reference, not to the charge of negligence contained in the statement, but to the law of the case, and was properly refused. The distinction made in the point between positive and negative testimony was correct enough, and so much of the point was affirmed, but it did not follow as a result that the verdict should be for the defendant. There can be no fixed and invariable standard of duty either with respect to the rate of speed to be observed by railroad companies at public crossings, or the manner in which approach to such crossings is to be signaled. All that can be said is, that it is the duty of a railroad company in the running of its trains to exercise care according to the circumstances, and when the railroad track crosses a much traveled street or highway, the [568] company is bound to exercise a degree of care commensurate with the danger; to give some sufficient notice of the trains’ approach, and to moderate the speed of the train to such a rate as, under the circumstances, is reasonably consistent with public safety. The law does not designate the mode in which these precautions against injury are to be exercised. This much was said in Lehigh Valley Railroad Co. v. Brandtmaier, 113 Pa. 610, and it has been many times repeated. In the present case while there was agreement between the witnesses that the whistle of the engine ivas sounded at or near the whistling post, more than a half mile west of the crossing, there was very positive disagreement as to whether it was sounded more than once, or whether any signal by bell had been given. One of plaintiff’s witnesses testified that although the engine on this particular occasion was running at unusual speed, yet some of the customary signals were omitted. It could not be said as matter of law that the one whistle which witnesses on both sides agree was given, was an adequate warning; therefore it became a question for the jury to determine from all the evidence in the case whether the defendant had come short of its duty in this regard, and a submission of the question was unavoidable. So to with respect to the question of the injured party’s contribute rj'' negligence. An imperative duty rested upon him to stop, look and listen ; and there was evidence going to show that he did this ; but the contention of the defendant was that he did not do it at the places or in the manner that proper regard for his own safety would have suggested. Whether he did all that he was bound to do depended upon the situation ás he found it, and the circumstances in which he was placed; and it became a question for the jury under proper instructions as to the law. The court’s refusal to give binding instructions for defendant is the subject of the second assignment, and this is overruled. The instruction of the court on the question of damages was meager; too meager perhaps to insure a full understanding by the jury of what the law contemplates in this regard. It is only necessary to a'dvert to this feature of the charge with this expression of its insufficiency, to secure fuller instruction at another trial of the case which must be the result of the [569] manifest error which is made the subject of the fourth and last assignment. In the general charge the learned judge instructed the jury as follows: “There is some evidence that the bell was not rung. If you find it was not rung, that would be an element of negligence on the part of the defendant company. ” However this expression may have been qualified in the answer to points submitted it stands out so conspicuously in the charge, and would necessarily be so misleading if uncorrected, that we cannot be sure that it did not influence the result. Whether the failure to ring the bell, if there was such failure, was negligence, became a question for the jury to determine from all the circumstances in the case ; it was not for the court to declare it as matter of law. Judgment reversed, and a venire facias de novo awarded.