Pyne v. Delaware, Lackawanna & Western Railroad , 212 Pa. 143 ( 1905 )

Opinion by

Me. Justice Elkin,

The answer of the appellant to the claim of the appellee is, first, that there was no negligence on part of defendant, and second, there was such contributory negligence by the plaintiff as to prevent his recovery in this action. The accident occurred at a grade crossing familiar to both parties. It was the duty of the appellant to use due care and caution in running its engine and hauling its train at this point, and to give suitable and timely warning of the approach thereof, by ringing a bell, blowing a whistle, or giving other danger signals. Did it meet this requirement of the law ? If so, there can be no recovery.

The appellee testified that no whistle was blown nor bell rung, and that no other danger signal was given. Two other witnesses corroborated his testimony in this respect in whole or in part. The appellant produced eight or nine witnesses who testified that the whistle was blown and bell rung at the proper places before approaching the crossing. Here, then, is a conflict of testimony which is generally for the jury. In such cases the court should call the attention of the jury to the kind and character of the testimony offered so that intelligent consideration may be given and correct conclusion may be reached. The appellant contends that the learned trial judge erred in not so doing. The court was not requested to call attention to the so-called positive and negative testimony of witnesses by a point submitted for the purpose, and we must therefore examine the general charge to see whether the cáse was properly presented to the jury. While the court did not specifically call the attention of the jury to the kind and quality of testimony submitted, yet the charge as a whole fully covered every point involved in the case, and under the circumstances we think the matter complained of is not reversible error. The learned court fairly left the entire question to the jury, where it properly belonged.

It was the duty of the appellee to stop, look and listen before going upon the crossing, and even after starting over the same it was his further duty to exercise reasonable and due care in order to avoid danger and accidents. If he failed to stop before going upon the track, he would have been guilty of negligence per se. It is conceded, however, that he stopped at the usual place and looked up and down the tracks while a freight train was passing. He waited until this train had passed the crossing upwards of 300 feet. He then stood up in his wagon and saw a freight train about three fourths of a mile away, coming in the same direction and on the same track as the one that had just passed. He also saw a work train of five or six flat cars standing on the second switch about thirty feet to the south side of the crossing. He looked up and down the track before starting his team, .but his general view was obstructed by the freight train which had slowed down, and to some extent by the work train and the breaker. He did not see the approaching passenger train which struck him, on the north-bound main track, until it was about .100 feet distant from the crossing. He could not then save himself and extricate his team from the impending danger. • What was his duty under the circumstances ? The answer is, ordinary and reasonable care.. Did the degree of care required vary under the facts of this case? . We think it did. If so, it was for the jury to determine whether he performed his duty under all the circumstances. Where there is doubt as to the inference to be drawn from the facts, or where the measure of duty is ordinary and reasonable care, and the degree of care required varies with the circumstances, the question of negligence is necessarily for the jury: Pennsylvania Railroad Co. v. White, 88 Pa. 327; Penna. R. R. Co. v. Peters, 116 Pa. 206; Rusterholtz v. New York, etc., Railroad Co., 191 Pa. 390; Cohen v. Philadelphia and Reading Railroad Co., 211 Pa. 227.

Under these authorities as applied to the facts of this case, it was for the jury to say whether the appellee exercised that ordinary and reasonable care required of him under all the circumstances, with'which.he found himself surrounded. The eharge of the learned trial judge fairly and adequately presented the case to the.consideration of the jury.

Assignments of error overruled and judgment affirmed.