Roland v. Philadelphia & Reading Railway Co.

Opinion by Mr. Justice Brown, The negligence of the defendant company and the contributory negligence of the deceased were for the jury. Neither question could have been taken from them. The contributory negligence of the deceased was submitted under instructions free from error, but the negligence of the defendant was taken from the jury, the trial judge instructing them that it had been negligent. For this error the judgment must be reversed. As the team approached the crossing the safety gates were up. From the testimony of Mohn, a witness to the accident, called by the. plaintiff, it is uncertain whether the watchman or gateman was at the crossing at the time the team was approaching; but because the undisputed evidence was that the gates were up, the court declared, as a matter of law, that the defendant was negligent, and instructed the jury to so find without regard to any other testimony in the case. By this they, of course, understood that the negligence which made the railroad company responsible for the collision was the failure to have the gates lowered as the team approached. The failure to have them lowered was evidence of negligence on the part of the defendant, to be taken into consideration by the jury in passing upon that question, but was not, in itself, without regard.to anything else that was proven, conclusive evidence of negligence: Lake Shore & M. S. Ry. Co. v. Frantz, 127 Pa. 297; Matthews v. Philadelphia & Reading R. R. Co., 161 Pa. 28. From other testimony in the case, if believed by the jury, they could fairly have found that the defendant had not been guilty of negligence. Witnesses called on its behalf testified that, for a distance of over seventy feet between a cooper shop and the track on which the collision occurred, [633] there was an unobstructed view of 1,300 feet in the direction from which the train was coming; that between the watch box and the track — a distance of more than forty feet — there was such a view of from 1,500 to 1,800 feet; that the whistle was blown at the whistling post east of the crossing and the bell rung from that point up to the crossing. If the jury had believed this, a proper conclusion might have been that the company had not been negligent; but they were not permitted to consider this testimony, and the first and third assignments of error must be sustained. Another error into which the court fell was in affirming plaintiff’s seventh point. The watchman may not have been able to read or write, nor to tell the time by watch or clock, but there was no evidence that he could not see and hear a train approaching, whether running on schedule time or not. There was nothing to show that he was not able to discharge the duties for which he was employed, and his alleged ignorance, as set forth in the point, had no relevancy to the issue and did not contribute in the slightest degree to the accident. The judgment is reversed and a venire facias de novo awarded.