Stanton v. Scranton Traction Co.

Opinion by Rice, P. J., The appellant’s counsel insist, that, but for the bank of snow thrown up along the sidewalk by the property owners, the plaintiff could have crossed the defendant’s track without upsetting; that is, that he could have crossed it at right angles to the track, and if he had ’crossed at right angles his load would not have upset. Grant this, yet it is equally true, that, but for the depression in the traveled way caused by removing the snow from the defendant’s track and placing it on the highway at the sides of the track, he could have crossed diagonally from one side of the street to the other in safety, notwithstanding the embankment along the sidewalk. If either one of these conditions had been absent, it is altogether probable that his load would not have been upset; but how does that affect the liability of the company for what occurred afterwards ? The verdict of the jury has established the fact that the plaintiff was not negligent in being on the street or in crossing at the place he did or in the manner of crossing. We need not stop to argue, that under the circumstances developed on the trial these questions were for their determination. They were submitted with instructions to which no exception has been taken. We have a right, then, to assume, that when the plaintiff’s load was upset he was, without fault on his part, placed in a situation where he was warranted in doing what he did to right his load. It was after he had done that, and whilst holding the reins in one hand and the whiffletree in the other, he was about driving across the track to hitch his team to the load that (without negligence on his part as the jury have found) he slipped on the sloping bank of hard snow or ice, a foot high, at the side of the track, caused by the defendant’s act, and was injured. He was not injured by the capsizing of his load. It seems needless therefore to speculate as to the proportionate part which the bank of snow along the sidewalk contributed as a cause of that accident. It is very evident that it was not the sole efficient cause of his capsizing and of his being placed in the situation he was then in; and more to the point, it is evident that, as related to the [199] sloping embankment of hard snow or ice caused exclusively by the defendant’s act, it was not the proximate, but, at the very most, one of the remote causes of the injury he subsequently sustained. It is with the proximate cause of that that we are now concerned. Was the defendant negligent, and was the plaintiff’s injury the natural and probable consequence of its negligence — such a consequence as under the circumstances of the case ought to have been foreseen by it as likely to flow from its act? This is the test of the defendant’s liability, assuming as the jury have found under proper instructions that the plaintiff was not negligent. What ought to be done with the snow which falls upon the tracks of a street railway company, and which, if allowed to remain there would obstruct the operation of the road, is a difficult practical problem for the company and municipality to solve, and a difficult question for a court or jury to determine. We think, however, that the general principles as to the rights and duties of the company clearly enunciated in the charge delivered to the jury in the present case are just and reasonable. A street railway company must, of course, have the right to remove snow from its tracks. In the very nature of tilings this will cause a depression in the traveled way which in heavy snow falls may be considerable. Whatever the company may do with the snow thus removed, embankments will be created alongside the track, which, after thawing and again freezing, may become hard and slippery and to some extent an obstruction to travel. If the snow be taken away altogether, certainly no more can be expected of the company in the absence of any statute or ordinance on the subject. In such a case the obstruction consequent on its removal must be regarded as one of the unavoidable inconveniences, and, perhaps, dangers of travel in vehicles and on foot on a highway occupied by the tracks of a street railway company, for which it cannot be held responsible. But if the snow be cast on the highway alongside the track and be allowed to remain there, thus increasing the height of the embankments on either side, a question of liability is presented, which may receive different, but not necessarily inconsistent, answers in different cases. It certainly cannot be laid down as an unvarying rule applicable to every community and to every street or road, that the company may not cast the snow on the highway [200] at the sides of the track. This would be unreasonable. Nor on the other hand can it be said, that it may do so without regard, in the manner of disposing of it, to the effect which that accumulation will have on public travel. Any disposition that it makes of the snow must be made with due regard to the rights of travel upon the highway, and so as not to interfere needlessly, in a practical, sense, with the safety and convenience of persons lawfully using the street in an ordinary way. See Bowen v. Detroit City Ry. Co., 54 Mich. 496, Wallace v. Detroit City Ry. Co., 58 Mich. 231, Dixon v. Brooklyn Railway Co., 100 N. Y. 170, and Mahoney v. Met. Railway Co., 104 Mass. 73. This is but an adaptation of the general principle sic utere tuo ut alienum non Redas, and simply imposes the duty to exercise care according to the circumstances. The width of the street, the amount of travel upon it, the grade, the climate, the depth of the snow fall, the depth of the snow already upon the ground, the kinds of vehicles in common use, and many other circumstances of minor importance are all to be considered in determining what is due care in the disposition of the snow which the company removes from its tracks. It is not possible to lay down a single rule applicable alike to a crowded thoroughfare of a populous city and to a little traveled road where ample room is left on either side of the track for vehicles to pass and turn and all the different roads of varying conditions lying between those two extremes. A case, indeed, may be so plain, that it will be the duty of the court, taking a practical view justified by common knowledge and experience, to give the jury binding instructions, that the company has exercised all the care in the removal and disposition of the snow that could reasonably be expected. Doubtless with longer experience definite and fixed rules of law upon some branches or subdivisions of this subject will be evolved out of litigated cases, as has been done in other branches of the law of negligence. But in the present state of the law as adjudicated by the courts, we think the question, as it arises here, falls within the general principle, that what constitutes negligence where the standard shifts, not according to any common rule, depends upon the facts and circumstances developed at the trial and cannot he determined by the court, but must be submitted to the jury: D., L. & W. R. R. Co. v. Jones, 128 Pa. 308; Menner v. D. & H. Co., 7 Pa. Superior Ct. 135. [201] Without rehearsing the facts and attempting to show that the company did or did not exercise the care required by the circumstances we conclude, that the question whether or not the defendant needlessly — that is, by the omission to exercise reasonable prudence in view of the circumstances — interfered with the safety of persons lawfully using the street in an ordinary way was for the jury, and was submitted under properly guarded instructions. Upon the general question raised on the argument as to the negligence of the plaintiff in attempting to pass the obstruction, we cannot do better than to quote from Mahoney v. Railway Co., 104 Mass. 73, a case similar to this in many particulars: “ The fact that the plaintiff saw the obstruction created by the defendants, and knew its dangerous character, is not conclusive proof that he was negligent in attempting to pass it. A person who, in the lawful use of a highway, meets with an obstacle, may yet proceed if it is consistent with reasonable care so to do; and this is generally a question for the jury, depending upon the nature of the obstruction and all the circumstances surrounding the party. In the case at bar, if the plaintiff had reasonable cause to believe that he could pass the obstruction in safety, and used reasonable care in the attempt, he is entitled to recover. Horton v. Ipswich, 66 Mass. 488. It is a question for the jury to determine whether, under the circumstances, the plaintiff was justified in attempting to cross the street notwithstanding the obstruction, and whether in doing so he used due care.” Moreover, it is to be noticed, that the plaintiff was not in the position of an ordinary pedestrian, and could not give his undivided attention to the place where he was stepping; also that a choice of routes Avas not then presented to him. He was bound to do what he did, not only to get himself out of the difficulty, but also to get his load off the track where it was obstructing the passage of the street cars. The question is, Avhether he used due care under the circumstances. This also was for the jury and was submitted under instructions which have not been specifically assigned for error. We may therefore take that question as settled by the verdict of the jury. The plaintiff, then, was in the lawful and nonnegligent use [202] of the highway when, he was injured. The circumstances of his injury were not so extraordinary as to justify the court in declaring as matter of law that the defendant could not fairly be expected to foresee the probability of his receiving such a fall as a natural result of leaving the highway in such a condition. See Yoders v. Amwell Twp., 172 Pa. 447, 454. This was a question for the jury. This point, as well as the other questions in the case, is so thoroughly and satisfactorily considered in the charge to the jury and in the opinion subsequently filed by the learned judge who presided at the trial, that we do not deem it necessary to elaborate further. We find no error in the record, and the judgment is therefore affirmed.