State ex rel. Foy v. Philadelphia, Wilmington & Baltimore Railroad

Bartol, C. J., delivered the opinion of the Court. John B. Foy while crossing the railroad of the appellee was struck by a passing train and killed, and this suit was instituted for the use of his widow and children to recover damages on account of his death. In order to maintain the action it was incumbent on the plaintiff to prove that Foy’s death was caused by-the — 83 — negligence of defendant’s agents, and it must not appear from the evidence that want of ordinary care and prudence on the part of the deceased, directly contributed to his death. - After the testimony on both sides was closed, the Court below rejected the several prayers offered by the plaintiff, and by granting the first and second prayers of the defendant, instructed the jury : 1 st. That there was no sufficient evidence of negligence ou the part of defendant or defendant’s agents to entitle the plaintiff to recover. 2nd. That plaintiff was not entitled to recover, because the negligence of the deceased directly contributed to cause his death. Theaccident occurred at Perrymansville, Harford County, on the 21st day of January 1875, between 2 and half-past 2 o’clock in the afternoon. At that place the railroad runs on a level nearly east and west, and for about 2-t- miles on each side of that point, in a straight line. The county road crosses it at right angles. It appears from the proof that Eoy left Quinlan’s store, situated on the county road, about 500 yards north from the crossing, to go to his home on the south side of the railroad, about 2-*- miles from Perrymansville. He was riding alone in a covered carriage, called by the witness “ a box carriage,” with the curtains closed, buttoned down on each side and behind, but open in front. Driving at a slow pace, about four miles an hour, he continued on his way without stopping, and as he was crossing the railroad, the “limited express train ” going westward]y, struck against the carriage and killed him. Perrymansville is a railway station, at which some of the trains stop, but “limited express trains” did not stop there. It is situated in a rural district, not in a town or village. — 84 — It appears by the plat as explained by the witnesses, that the station-house and warehouse belonging to the railroad company are on the north side of the railroad; the former about 65 to TO yards east from the crossing, and the latter about 200 yards. The space between them being about 130 yards. North of the railroad, and on the east side of the county road ninety-five yards from the crossing is a barrack, south-east from that about twenty yards distant, are a corn-house and stable, and between them and the station-house is a shed and water-closet. In passing from Quinlan’s store to the crossing, the sight of the railroad on the east is partially obstructed by these' buildings ; and as stated by the witness James H. Michael, for thirty-five steps before reaching the crossing the station-house and warehouse totally obstruct the view. The train was moving at the usual speed, forty to fifty miles an hour. The usual signal was given by blowing the whistle at the whistling post, about one-fourth of a mile before reaching the crossing. The conductor and engineer were both on the locomotive, looking out, and as the train was passing the station-house, saw Foy’s horse and wagon approaching the track, when two short sharp whistles were given, the usual danger signal ; it was then impossible to stop tlie train or to avoid the collision. These are the uncontested facts as disclosed hy the evidence,'so far as it is material to state them, and the question is do thóy furnish any evidence, which it was proper to submit to the jury, of negligence on the part of the railroad company or its agents in the management of the train? We have looked in vain for any such evidence, and the learned and ingenious counsel of appellant has failed to point it out. The railroad company was engaged in the prosecution of its lawful business. It was bound only to use ordinary and reasonable care to avoid inflicting injury upon others. — 85 — There is no proof of incapacity of the agents in charge of the train, or of any negligence on their part. It is said there was no sufficient lookout upon the train, but there is no evidence whatever to sustain this charge. The only testimony on this subject is that of the engineer and conductor, both of whom were on the locomotive looking out. The charge rests exclusively on the fact that they did not see Eoy’s horse and carriage until the train was passing the station, but it is shown by the evidence of the plaintiff that for thirty-five yards before reaching the crossing the sight was obstructed by the warehouse and station house. The whistle which was sounded at a quarter of a mile from the crossing, was the usual warning, and if Foy had used his eyes and his ears, as it was his duty to do, would have been an all-sufficient warning to him to prevent the accident. Again it is said the train was behind the usual time. There is some evidence of this, several witnesses so testify, one of them, Jas. H, Michael, saying it was about twenty-five minutes past two. The schedule time was seven minutes past two. The conductor and engineer, who are more likely to be accurate, testified that it was two minutes later, reaching Perrymansville at nine minutes past two. But assuming the testimony of Mr. Michael to be correct, it is well known that railway trains are liable to be detained by various causes, without any fault of the company, and negligence cannot be imputed to it from the fact that a train may be behind the usual time. The fact that the train was later than usual might have some bearing upon the question of contributory negligence on Foy’s part, but in no manner affects the question of negligence on the part of the company. It is contended that some one ought to have been stationed at the crossing to give notice of danger, but the law does not impose the obligation upon a railroad company to station persons at every crossing of a public road — 86 — to warn travellers of approaching trains, and there is nothing in the evidence to show -that at this particular place such a precaution was necessary or reasonable. In the case of Stubley vs. The London and North-Western Railway Co., Law Rep., 1 Exch., 13, where a similar question arose, Bramwell, B., said “Need there be any one to warn persons of a train, which they can see so far off, that if they only take the trouble to look out for it, it cannot overtake them in crossing.” * * * * “If such a precaution is necessary here, it must also be used elsewhere; and the argument would show that on every road, every canal, every railway in the' kingdom, means must be taken to warn people against the consequences of their own folly.” And in the same case, Chaunell, B., said, in reply to the same argument: “But passengers crossing the rails are bound to exercise ordinary and reasonable care for their own safety, and to look this way and that to see if danger is to be apprehended.” We refer also to Skelton vs. L. and N. W. Railway Co., L. Rep., 2 C. P., 631. In these cases, and also in Cliff vs. Midland Railway Co., Law Rep., 5 Q. B., 258, the case of Bilbee vs. London and Brighton R. R. Co., so much relied on by the appellant, is commented on and explained as resting upon its special circumstances, none of which belong to the present case. The undisputed facts of this case as shown by the testimony, seem to us to furnish strong ground for the conclusion that the death of the deceased was caused directly by his own negligence, or want of ordinary and reasonable care. But without going, into that question, we base our decision upon the total failure of evidence to establish negligence on the part of the defendant or its agents. The onus being on the plaintiff to prove this as the ground of the action, and having failed to offer any evidence tending to prove this, it was not error to grant the defendant’s first prayer. — 87 — (Decided June 15th, 1877.) The fact of negligence is for the jury to decide whore there is evidence legally sufficient to prove it, but in the absence of such evidence, it is the duty of the Court to withhold the case from the jury. In the language of Williams, J., in Toomey vs. The L. Br. and S. C. Railway Co., 3 C. B., N. S., 146, (91 Eng. C. L. R ,) quoted with approval by Erle, C. J., in Cotton vs. Wood, 8 J. Scott, N. S., 98 Eng C. L., 572. “ A scintilla of evidence, or a mere surmise that there may have been negligence on the part of the defendant, clearly would not justify the Judge in leaving the case to the jury ; there must be evidence upon which they might reasonably and properly conclude that there was negligence.” See also Cornman vs. E. C. Railway, Co., 4 Hurl. & Nor., 781. Being of opinion that the defendant’s first prayer was properly granted, the judgment will be affirmed. Judgment affirmed.