Morrison v. Pittsburg, Cincinnati, Chicago & St. Louis Railway Co. , 26 Pa. Super. 338 ( 1904 )

Opinion by

Oelady, J.,

An explosion of a tank car loaded with naphtha in the defendant’s freight yards at Sheridan, near Pittsburg, on May 12, 1902, resulted in an exceptional destruction of life and property.

This suit and another were tried together before the same jury and resulted in verdicts in favor of the plaintiffs. While the defendant requested and had sealed an exception to the charge of the court there is no assignment alleging error to the general instructions given to the jury, the errors asserted being to the answers to points presented by the defendant, the principal of which is “ Under the pleadings and evidence in this case the verdict should be in favor of the defendant ” which was refused.

All the assignments of error go to the one question, the contributory negligence of the plaintiffs, and the argument of the defendant is summarized in the statement, viz : “ We contend that where one is in a place of safety at the time an act of negligence is committed which carries with it danger of personal injury, he cannot be heard to complain of the act of negligence if he subsequently, voluntarily, and without any necessity, leaves his place of safety and suffers personal injury as a result therefrom.”

The cases were zealously tried, and a voluminous amount of testimony taken, which, considered as a whole, left the question of the contributory negligence of the plaintiffs reasonably debatable, hence it was to be referred to the jury for its decision, and it was submitted in a charge which was fair, clear and adequate, the attention of the jury being specially called to the motive and reason moving the plaintiffs to be where they were at the time they received their injuries. The court said: “ If these parties went up there, without any business calling them there, or for the purpose of enjoying the display merely for the purpose of satisfying’ their curiosity and seeing, so to speak, the fireworks that were being displayed there, then they deliberately assumed that risk and they cannot recover. . . . They must be held to have gone there at their own risk .... or if they went to a position where they were not called to go, or where it was not necessary to. go, and there is no claim that there was any necessity bearing on these people, — where an ordinary prudent person would have concluded that there was danger, then that person was guilty of contributory negligence, and could not recover here. And it is for you to say whether they exercised all the care that prudent persons would have exercised under such circumstances. They were bound to exercise due care for their own safety; and if a reasonably prudent man would have concluded that they should have stayed in their houses, or even have concluded that they should have gone away from their houses to a safer place, then it was their duty to do it, and if they did not do it, they forfeited their right to recover here.”

While the foregoing are detached excerpts from the charge, the thought expressed was consistent throughout and could not be misunderstood. The circumstances were unusual and the alarm and excitement produced by such a catastrophe is evidenced in the conflicting testimony. The reason for the plaintiffs being within the range of danger when the explosion occurred was deemed a sufficient one by the jury and while the evidence does not relieve the mind from uncertainty it was for the jury under proper instructions.

No fixed measure of duty could be applied; the evidence could not be harmonized; there was a reasonable doubt as to the inferences to be drawn from the discordant testimony; the extent of knowledge of the danger and the degree of judgment to be exercised under the circumstances could not be declared as a matter of law and hence under all our authorities was properly referred to the jury for decision.

The assignments of error are overruled and the judgment is affirmed.