Sgier v. Phila. & Reading Ry. Co.

Opinion by Mr. Justice Walling, On November 7, 1915, the plaintiff, Mrs. Sgier, was a passenger in a Ford, touring car going from Brooklyn, New York, to Philadelphia. The car was owned and driven by her uncle, Martin F. Brady. She sat with him, while Mrs. Brady and another lady occupied the rear seat. They were traveling on the Lincoln Highway, in Bucks County, going in a northerly direction, when they came to a four-track grade crossing of defendant’s railway, at Glen Lake. The gates on both sides were up and, just before reaching the first or south gate, they stopped to look and listen and, finding the tracks apparently clear, started forward. When approaching the north gate it came down suddenly so that the iron bar suspended at the end thereof broke through the top of the car and inflicted serious injuries upon Mrs. Sgier. Mr. Brady testified that he saw a man in the watch-house, which stood near where they came to the crossing; but so far as appears no one saw him operate the gate. However, when it came down a bell was rung and a train was approaching within two or three hundred feet. Defendant submitted no evidence, but asked the court to direct a verdict in its favor; which was declined and the jury found for plaintiffs. This appeal is by defendant from the judgment entered thereon. The case was for the jury. While there was no direct evidence that the gate in question was lowered by an employee of defendant, the circumstances warranted that conclusion. The gates were there to be operated on the approach of trains and one was then coming and a bell ringing. A man had just been seen in the gatehouse and so far as appears the gates do not operate automatically. Where a railroad appliance is in its proper place and performing its intended function, it is prima facie evidence that it is under the control of the company, and this applies as well to a safety gate as to a locomotive. The purpose of the gate is to protect the public, by moving downward and upward; and the presumption is that [347] such movements are under the control of the railroad company, and there is no evidence here to the contrary. It bears no analogy to the accidental fall of a trolley pole or of an electric wire. Under the circumstances, the question as to the negligent operation of the gates was for the jury. It is the duty of a railroad company to exercise reasonable care in operating safety gates so as to protect the traveler on the highway from the cars and from the gates: Thompson on Negligence, Vol. 2, Sec. 1533. The rule as to the operation of safety gates is illustrated in Hudson v. Lehigh Valley R. R. Co., 54 Pa. Superior Ct. 107, 110, where it is stated in the opinion by Judge Henderson : “It was manifestly his [the gate keeper’s] duty to lower the gates with due regard to the safety of persons who might be on the street or the sidewalk and when as in this instance it was known that a traveler was approaching the gate the full duty of the watchman was not performed when he lowered it without observing whether it was about to fall on a passer-by. The drop of the gate could easily have been arrested, and it was a question for the jury under the evidence whether the watchman exercised such care as the situation demanded.” The gates should be operated with due regard to the safety of those crossing the tracks as well as of those about, to enter thereon. It was not the lowering of the gates, but the manner in which it was done, that tended to show negligence. The accident happened at noon. Plaintiff’s automobile had just passed the gatehouse and must have been in full view of the gatekeeper. If he failed to see it, it was evidence of negligence, as it also was if he saw the automobile and dropped the gate upon it. 'The violence and rapidity with which the gate was lowered, and the fact that it struck the top of the automobile near the front, were also matters for the jury. While the mere happening of the accident did not raise a presumption of negligence, the circumstances shown were such as to make that a question of fact. Negligence may be established [348] by circumstantial evidence: Dougherty v. Philadelphia Rapid Transit Co., 257 Pa. 118; Janock v. B. & O. R. R. Co,, 252 Pa. 199. The undisputed evidence is that before entering upon the crossing the automobile stopped and the driver and plaintiff looked and listened for approaching trains; then, the gates being up, they went forward and the north gate did not start downward until they were nearly under it. So there is nothing in the case to convict Mrs. Sgier of contributory negligence, certainly nothing that the court could declare to be such. We cannot review the action of the trial court in passing upon an application for new trial except in case of manifest abuse of discretion, which is not shown here. So far as appears no request was made that the charge of the court be reduced to writing and filed of record, hence error cannot be assigned thereto: Lindsay v. Dutton, 227 Pa. 208; Foley v. Philadelphia R. T. Co., 240 Pa. 169; Sikorski v. Philadelphia and Reading Ry. Co., 260 Pa. 243; Curtis v. Winston, 186 Pa. 492. Even if properly before us, we find nothing in the charge that would justify a reversal. Before the jury retired, defendant’s counsel asked for a general exception to the court’s charge, but refused to allege any reason therefor and the court declined to grant such exception. After careful examination we are clearly of the opinion that the court did not err in so doing. Section 2 of the Act of May 11, 1911, P. L. 279, provides, inter alia, “Exceptions may be taken, without allowance by the trial judge, to any part or all of the charge, or to the answers to points, for any reason that may be alleged regarding the same in the hearing of the court, before the jury retires to consider its verdict.” The manifest purpose of requiring that the reason be stated in the hearing of the court is to give the latter an opportunity to correct errors if any and avoid a mistrial. While the judge may grant a general exception to the charge he is not required to do so unless some reason is [349] alleged. As the question is fully considered in the opinion of this court by Brother Moschzisker, recently filed, in Sikorski v. Philadelphia & Reading Railway Company, supra, we refrain from its further discussion. At the trial in the court below, after the evidence was closed and the arguments of counsel finished, and when the trial judge was proceeding to charge the jury, defendant’s counsel, having previously submitted a request for binding instructions, presented additional points which he requested the court to answer. After some discussion the trial judge declined to receive such points because not presented in time. The Act of March 24,1877, P. L. 38, 3 Stewart’s Purdon 3357, and also Philadelphia Court Rule 139, require that the points for charge be handed to the court before the close of the argument to the jury. The requirement is reasonable as the trial judge should have some time to consider the legal questions so raised, both in justice to himself and the litigants. The points were doubtless submitted in good faith but too late to require answers. The assignments of error are overruled and the judgment is affirmed.