McKee v. Bidwell , 74 Pa. 218 ( 1873 )

The opinion of the court was delivered, November 10th 1873, by

Mbrcur, J. —

It is well settled that in a case of undoubted evidence of clear negligence, it is the duty of the court to pronounce it such as matter of law : Pennsylvania Railroad Co. v. Ogier, 11 Casey 60; Catawissa Railroad Co. v. Armstrong, 2 P. F. Smith 282; Pittsburg and Connellsville Railroad Co. v. McClurg, 6 Id. 294. If, however, there-is no doubt as to the acts committed, yet if there be substantial doubts as to the inferences to be drawn from these acts, they should be submitted to the jury: Pennsylvania Railroad Co. v. Barnett, 9 P. F. Smith 259; Johnson v. Bruner, 11 Id. 58.

What is and what is not negligence in a particular case, is generally a question for the jury, and not for the court. This arises from the fact that the question of ordinary and reasonable care is generally involved. The degree of care required is changed by the circumstances 'of the case. Some circumstances require a higher and some a lesser degree of care. Hence generally negligence is a mixed question of law and fact. Under proper instructions it should usually be submitted to the jury, to find whether proper care has been exercised under the particular circumstances.

The plaintiff was in the employ of Haney & Co., whose business was to convey goods from the railroad depots to the merchants in the city of Pittsburg, to whom they were consigned. They had, upon several previous occasions, delivered goods to the defendant in the yard and upon the same platform where the goods were delivered at the time of the injury. Henry Perry, who was in company with the plaintiff, and driving the horses, testified that he had delivered goods there two or three times before the injury, and that “ this time the way was open into the yard.” William Wilson and Charles Turner, both employees of Haney & Co., each testified to having delivered goods to the defendant upon the same platform. Wilson swears: “ I got my book signed after I took them off the dray. I always went in the building to the office. The opening stands to the right of the large door. There is a door opening from office to wareroom. This is the only entrance I ever got in. The office is probably twenty-five or thirty feet from the large door. Sometimes the book was signed in the office when I went in, and sometimes was signed at the platform outside. No person ever did admonish or warn me not to come in that way. The person who came out of the office to receipt the book came through the building the same way that I went in.”

Turner swears that he went through the building to the office to have the receipt signed, and “ was never notified not to go into office through the building.”

Henry N. Breed, an employee of the defendant, testified that the door at platform leading into the building “ was as much a thoroughfare as any door about the building.” Subsequently he explained, saying: “I meant by a thoroughfare that i-t was used by the men employed about the building as much as any other door.” Again he says: “the persons who used this door were workmen, and persons who delivered freights there went into that door and went in there.” Having entered that door, they would go around to office-door. “We generally came out to receive freight. When persons went in, they would go in and around to office door; sometimes they would come to window and rap; when they did come in they would go in that way.”

It is true, Breed testified that on the door leading into the building was a notice — “ No admittance without permission from the office.” The plaintiff swears he did not see this notice ; nor does it appear that any of the employees of Haney & Co. ever saw it.

As matter of fact, it appears that the employees of Haney & Co., who delivered goods to the defendant, did, without permission from the office, pass in through that door on their way to the office to get a receipt; and this, so far as is shown, without any objection on the part of the defendant.

At the time of the injury, the plaintiff was in company with the driver of the team, assisting in the delivery of the goods to the defendant. He was further charged with the duty of procuring a receipt therefor. With the receipt-book in his hands, he entered the door on the way to the office, for the purpose of procuring the receipt. In ignorance of the hole, passing along, with the gaslight from the office thrown in his face, but not upon the hole, he fell therein. He had entered the same door through which other employees of Haney & Co. had been accustomed to pass for a like purpose. The plaintiff was at the defendant’s works for a lawful purpose, and upon business which made it proper for him to go to the office. Whether he had a right to enter that particular door which he did enter, for the purpose of passing to the office, and whether, having entered, he was afterwards guilty of negligence, should have been submitted to the jury. We think, therefore, the learned judge erred in directing a nonsuit.

Upon the question of the defendant’s negligence, we think the evidence covered by the first assignment of error will be admissible. Where a person was killed while standing upon a platform between two tracks, by a passing train overlapping a portion of the platform, it wras held admissible to show that the railroad company caused the platform to be removed the day after: Pennsylvania Railroad Co. v. Henderson, 1 P. F. Smith 315. The same principle is affirmed in West Chester and Philadelphia Railroad Co. v. McElwee, 17 P. F. Smith 311.

Judgment reversed, and a venire facias de novo awarded.

Agnew, J. —

I doubt as to the question of concurring negligence on the part of plaintiff, upon the facts in evidence.