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

Alvey, C. J., delivered the opinion of the Court. In this case, there is hut a single exception, and that was taken by the defendants to the granting by the Court of the plaintiff’s first prayer, and the rejection by the Court of the second, third, fourth, sixth and seventh prayers of the defendants. The defendants made special •exception to the plaintiff’s first and other prayers, upon the ground that there was no evidence legally sufficient to support them; but as to the first of those prayers the objection was overruled. We have examined carefully the evidence set out in the record, and are of opinion that there was evidence legally sufficient to require the case to be submitted to the jury. We shall not, however, enter into any recital of the facts; but whether the accident was occasioned by the negligence of the defendants’ agents exclusively, if by their negligence at all, or by that of the equitable plaintiff alone, or by the negligence of the defendants’ agents and that of the equitable plaintiff operating concurrently, were questions proper for the jury to determine, under all the facts of the case. But while the Court was correct in overruling the objection to the legal sufficiency of the evidence, we are of opinion that there was error committed in granting the first prayer offered on the part of the plaintiff. By that [509] prayer, the jury were instructed that if they found that the accident occurred by the willful act, default or negligence of the defendants, ©r either of them, or of their servants, then the jury might find for the plaintiff, with such damages, &c. As an abstract proposition, the prayer is correct enough, but in view of the evidence it is faulty. The error of the instruction consists in the entire omission to require the jury to pass upon the question of the. contributory negligence of the equitable plaintiff. The evidence reflecting upon that question was entirely ignored by the terms of the instruction, and yet the jury were told that they could find for the plaintiff upon the inculpatory facts stated in the prayer. This was calculated to mislead, to say the least of it. As the prayer was intended to present the case to the jury in such form, and upon such hypothesis of fact, as would entitle the plaintiff to recover, irrespective of everything else in the case, it should have embraced the inquiry into the question of the contributory negligence of the equitable plaintiff ; as the finding upon that question might have been a complete bar to any right of the plaintiff to recover, notwithstanding the inculpatory facts stated as the basis of the instruction. It is because of this omission that the first prayer of the plaintiff was erroneously granted. It is argued, however, that the error of this instruction was rectified and rendered harmless, by the terms of the first prayer on the part of the defendants, which was granted. But we do not think so. By that prayer of the defendants, the jury were instructed as to the onus of proof of negligence to render the defendants liable, and that unless the accident producing the injury complained of was caused solely by the negligence of the defendants, the verdict should be for the defendants. But this instruction makes no specific reference whatever to any of the facts relied on to establish the existence of contributory negligence on the part of the equitable plaintiff. In [510] regard to that, the jury were left wholly uninstructed. The defendants were entitled to have the jury specifically instructed as to the legal effect of the evidence relied on to prove that the equitable plaintiff had been guilty of such contributory negligence as would, by the established rules of law, defeat the claim of the plaintiff to recover. And such instructions were sought by the second, third, fourth and sixth prayers offered by the defendants, but which were rejected by the Court. We, however, fail to perceive any good reason why those prayers should not have been granted. If it fie true, as stated in those prayers, that all the conditions and surroundings of the crossing were well known and familiar to the equitable plaintiff, and that the approach of the train to the crossing.could have been easily seen or heard by him, in time to have avoided the accident, and he failed to exercise reasonable precaution in that respect; or that the flagman stationed at the crossing gave the usual and well understood signal of the approach of the train, which was seen by the equitable plaintiff, but was not heeded by him, and he, notwithstanding such signal, persisted in his attempt to cross the tracks of the road; then, clearly, the plaintiff would not be entitled to recover. But, on the •other hand, if the equitable plaintiff was really misled by any such misconduct of the flagman as was calculated to mislead a rational person, in the exercise of reasonable ■care, under all the circumstances of the case, and that, by reason of the fact that he was so misled, the accident occurred, then the right of action would exist, and the plaintiff would be entitled to recover. These questions of fact the prayers of the defendants proposed to submit to the jury, and we think correctly; as upon their determination would depend the liability of the defendants. In regard to the seventh prayer of the defendants, it is open to some objection, and the Court committed no error in rejecting it. [511] (Decided 28th January, 1887.) This Court, within the last few years, has had repeated occasions to pass upon the questions involved in this case; and, in those cases, the legal principles applicable here are fully stated. We therefore deem it unnecessary to repeat those principles in this case. The last case upon the subject, in which the principles of law applicable to this class of cases are fully stated, is that of Phil., W. & B. R. Co. vs. Hogeland, ante p., 149, in which some of the preceding but recent cases in this Court are referred to ; and we think the second, third, fourth and sixth prayers of the defendants are fully ^mbraced and supported by those decisions. We must, therefore, reverse the judgment of the Court below, and remand the case for a new trial. Judgment reversed, and new trial awarded.