Summers v. Bloomsburg & Sullivan Railroad

Opinion by W. D. Porter, J., The plaintiff seeks to recover damages for injuries received in a grade crossing accident and obtained a verdict and judgment in the court below. The appellant now contends that the court below erred in submitting the case to the jury, because : first, the evidence failed to established the negligence of the defendant company, and, second, it did establish the contributory negligence of the plaintiff. The accident occurred — 617 — in the night-time at a point where a public highway of the town of Bloomsburg obliquely intersects the tracks of the defendant company. The plaintiff testified that he stopped, looked and listened for approaching trains, at a point where he, standing up in his wagon, was thirty feet from the crossing, which would put the pair of mules which he was driving considerably nearer the track, that he heard no sound of whistle, bell or other warning of an approaching train, that it was dark and he could only see the track in the direction from which the train afterwards came for the length of a rail and a half, that he then.walked his team to the crossing and just as the front feet of the team were upon the track he saw the headlight of the locomotive coming around the curve to the eastward, that he attempted to back his team off the track, succeeded in getting the mule which had been on the side from which the train was coming clear of the track but the locomotive struck the end of the wagon tongue, knocked down and injured the other mule so that it had to be killed, and caused personal injuriés to plaintiff. It is true the testimony of the plaintiff as to the failure of the employees of the defendant company to give warning of the approach of the train was of a negative character, — he heard no signal. But he was corroborated by the testimony of the apparently disinterested witness Chrisman who from his position on the other side of the creek had an unobstructed view of the train for a long distance and almost until it reached the crossing. Chrisman testified that he heard the sound of the train approaching, and actually watched the train from the time it passed the whistle post, which was over a thousand feet from the crossing until it passed into the cut at the curve almost at the public crossing, and that no whistle was blown and no bell rung. This testimony was flatly contradicted by several witnesses who testified that the whistle was blown and that the bell was rung. The question of the negligence of the defendant company was one of fact to be determined by the jury, upon this conflicting evidence : Link v. Philadelphia & Reading R. R. Co., 165 Pa. 75. There was no conflict in the testimony as to the opportunity which a person traveling northward upon the public road had of observing the trains of the railroad company which approached from a northeastern direction. The signal post — 618 — where engines of the railroad company at that time whistled for the crossing was 1,098 feet northeast of the crossing. The railroad track at that point and from there almost to the crossing was located between a high cliff of almost perpendicular rocks on its south side and the bank of the creek to the northward. The track ran in a southwesterly direction from the whistle post, along the bank of the creek, to a point near the crossing when it curved sharply to the south, passed through a short, deep cut in the rocks and almost immediately onto the public highway which it crossed at an acute angle. A person standing at the intersection of the middle of the track with the middle of the highway could only see along the track in a northeasterly direction 200 feet, the further view being cut off by the high walls of rock around which the track abruptly curved. At a point distant from the center of the track, and measured along the center of the road, ten feet a man could bo seen standing on the track at a point 150 feet northeast of the crossing, but so obliquely did the railroad cross the highway that with the heads of a double team standing at that point one of the horses would be upon the tracks, while the other horse would have still ten feet to travel before reaching the nearest rail. At a point seventeen feet from the crossing a man could be seen standing upon the track 112 feet to the eastward, and at that point both horses of a double team would be clear of the track. At forty feet from the crossing the view of the track to the northeast of the crossing was limited to sixty-six feet, and at seventy-five feet from the crossing a traveler on the highway could see a man on the track only forty feet from the crossing. The opportunities for seeing a train approaching from the northeast by a person traveling along the public highway from the south, being thus limited, it was not only important that the railroad company should give some reasonable warning that appealed to the sense of hearing, but also that persons using the highway should make use of that sense. The plaintiff testified that he stopped, looked and listened ata point where he standing in his wagon was thirty feet from the crossing, which would probably put the heads of his team and the end of the wagon tongue about twenty feet from the crossing, although one of the mules must have been much nearer the eastern or southern rail of the track. This testimony was — 619 — flatly contradicted by a witness who stood on the other side of and some distance from the track, who said that he could see the team, and that it did not stop. This witness was to some extent corroborated by other witnesses, who while they could, not see the team testified that they heard the rattle of the wagon over the frozen ground and that there was no interruption of that noise until the accident occurred. The weight of the evidence may have been against the plaintiff upon this point, but considering the opportunities of the witnesses for observation we are not satisfied that the preponderance in favor of the defendant was so overwhelming as to justify the court in withdrawing the case from the consideration of the jury, upon the authority of Holden v. Penna. Railroad Co., 169 Pa. 1, in which ease the uncorroborated testimony of the plaintiff was flatly contradicted by the person driving the carriage and four other disinterested witnesses who saw the accident. The learned judge of the court below, in affirming the third point submitted by defendant, instructed the jury that the only evidence that the plaintiff stopped at a point thirty feet from the track was the testimony of the plaintiff himself; that he was contradicted by seven witnesses; •“ and that the testimony of these seven witnesses is of such weight and conclusiveness that the jury cannot capriciously disregard it and accept the unsupported testimony of the plaintiff that he did stop, and that if the jury believed the testimony of the defendant’s witnesses the verdict ought to be for the defendant.” The conflicting testimony upon this point was thus submitted to the jury in a manner of which the defendant company had no right to complain. The appellant contends that even if the plaintiff did stop at the point indicated by his testimony, the place was so manifestly not the proper one to stop under the circumstances, that it was the duty of the court to so declare and withdraw the case from the jury. It is by no means clear that the place at which plaintiff stopped was not the very best that he could have selected. Owing to the angle at which the track crossed the public highway, one of the mules which he was driving must have been very close to the track, it is at least doubtful whether it would have been prudent for him. to proceed further without stopping, and the evidence clearly indicates that there was no point more distant from the — 620 — crossing at which he could have obtained a more extended view. Had he gotten out and lead his team fifteen or twenty feet he would have been in the middle of the railroad track and would have been able to see an approaching train at a distance of 200 feet, but had a train then come round the curve he would have had to back his team more than ten feet before it would have been entirely clear of the track. This would have been an exceedingly dangerous undertaking, and would have probably resulted in the loss of the life of the plaintiff and the destruction of his team. The court below instructed the jury in this language: “ The whole duty of one about to cross the track of a steam road at grade is not in all cases confined to his stopping, looking and listening for the approach of a train. He must stop at a proper place, and when he proceeds he should continue to look and to observe the precautions which the danger of the situation requires. He should stop again if there is another place nearer the tracks from which he can better discern whether there is danger.” This is the very language which our Brother Morrison quoted in his opinion in the case of Fry v. Pennsylvania Railroad Company recently decided by this court. Whether the place at which the plaintiff stopped was the proper place for him to do so, and whether there was a second place at which he should have stopped, were under the evidence in this case questions of fact for the jury, aiid not matters of law for the court: Pennsylvania Railroad Company v. Ackerman, 74 Pa. 265; McGill v. Pittsburg & Western Ry. Co., 152 Pa. 331; Ely v. Pittsburg, etc., Railway Co., 158 Pa. 283; Link v. Phila. & Reading Railroad Co., 165 Pa. 75; Cookson v. Pittsburg, etc., Railway Company, 179 Pa. 184; Muckinhaupt v. Erie Railroad Co., 196 Pa. 213; Newman v. Delaware, etc., Railroad Company, 203 Pa. 530. The attempt of defendant’s counsel to prove by a mathematical demonstration that the defendant could not have stopped and looked without seeing the approaching train, is based upon the theory that the train was moving at the rate of five miles an hour. The rate at which the train was moving is by no means free from doubt. The engineer alone so testified, and the creditability of that witness was to be determined by the jury under all the circumstances. The fact that the train struck the plaintiff’s wagon so quickly after coming round the — 621 — curve would seem to indicate that the speed was greater than that which a person could walk. Chrisman, the witness who watched the train come a long distance before it turned into the curve, almost at the crossing, testified that the train was running at its usual rate and had not slackened its speed. Here was such a conflict of testimony as would not have warranted the court in determining the rate at which the train was moving as a matter of law, or assuming it as an undisputed fact. The assertion that the plaintiff knew there was a train then due at the crossing is not sustained by the evidence. All the witnesses agree that the train was behind time. Had it been on time it would have passed before the plaintiff came in sight of the crossing. There was no evidence that the defendant was aware the train was behind time, and he himself testifies that he believed it had passed. A careful consideration of the testimony convinces us that upon all the questions material to this issue there was a substantial conflict of testimony, and it was the duty of the court to submit the case to the jury: McNeal v. Pittsburg, etc., Railway Company, 131 Pa. 184; Davidson v. Lake Shore, etc., Railway Co., 171 Pa. 522. The judgment is affirmed.