Kelemenan v. Pittsburg, Harmony, Butler & New Castle Railway Co. , 52 Pa. Super. 52 ( 1912 )

Opinion by

Porter, J.,

The plaintiff brought this action to recover the value of three cows which had been killed while crossing a track of fhe defendant company, as alleged by plaintiff because of the negligent operation of one of defendant’s cars. He recovered a verdict and judgment in the court below and the defendant appeals.

The plaintiff occupied, as tenant, a farm through which the defendant operated an electric railway constructed upon a right of way which it had acquired by deed from the owners of the farm. The deed conveying the right of way contained the following covenant: “Said right of way hereby granted or mentioned and intended so to be with the appurtenances, shall be fenced with a five-strand barb wire fence on locust posts, to be set not farther than twelve feet apart. ■ And second party shall construct and maintain said fence. And further, said second party shall construct and maintain for said first parties five crossings to be put in where designated by said first parties.” The plaintiff produced evidence that the owners of the farm, from whom he rented, had given notice to the party who represented the defendant company in the erection of the fences, designating the points at which the crossings were to be located, one of which was at the point where this accident occurred. The fence was erected by the defendant company, upon both sides of the right of way, and at the point in question gates were placed in the fences at each side of the track, and those gates were there maintained by the defendant company, from the time the fine was constructed until after the date of the trial in the court below. The plaintiff produced evidence which, if believed, established that he and prior occupiers of the farm had during all of this period availed themselves of the gates thus provided by the company and used this place as a crossing for the purpose of driving their cattle to and from the fields to the barn yard. The court could not, in the face of this evidence declare as matter of law that the plaintiff did not have a right to drive his cattle across the tracks at this point, or that he was a trespasser in so doing. The court left to the jury, in a manner of which the defendant has no cause for complaint, the question whether this location had been designated as one of the crossings and used as such by the owners and occupiers of the farm. The covenants of a deed are to be construed in the light of the circumstances, in order tp accomplish the intention of the parties, and such a covenant as that here presented does not give' to the grantor a mere personal right to pass over the track; it is a covenant running with the land, and those who acquire title to the farm have a right to use the crossings. The question of the location and use of this crossing having been passed upon by the jury, and the appellant having withdrawn all the specifications of error as to the manner in which that question was submitted to the jury, the verdict must be accepted as establishing the right of the plaintiff to use the crossing. He was not a trespasser.

The testimony admitted under the exceptions upon which the third, fourth and fifth specifications of error are founded worked no injury to defendant's cause. The witnesses referred to did not testify that the car was being operated at a dangerous rate of speed, nor did they attempt to make any estimate of the rate of miles per hour at which it was moving, nor to compare its speed with that of cars operated upon any other lines. The testimony of those witnesses established that they had for a considerable period lived very near the line of the defendant company and had observed the speed at which its cars were operated, that two or three cars passed along the line every hour. One of the witnesses said that the car in question was running faster than the regular cars ran there. The second witness said that the car moved at about the same speed as the rest of the cars, and the third witness said, that the speed of the regular cars varied and that the car in question went as fast as any of them ever traveled past there. The court instructed the jury that: “The defendant company has a right to operate its cars over and along the track that is built by it through the farm occupied by the plaintiff, it being a private right of way, and so far as persons living along its tracks are concerned it has a right to operate its cars at such speed as it may desire. This instruction eliminated any question of negligence arising from the rate of speed at which the car was operated, and the third, fourth and fifth specifications of error are dismissed.

Several witnesses called by the plaintiff testified that the car had given no signal of its approach to the crossing. The defendant did not make any serious attempt to show that a signal had been given, it was maintaining that there 'was no crossing at that point and that it was not necessary to give any signal, announcing the approach of the car. The defendant was content, upon this branch óf the case, to produce evidence tending to establish that a whistle had been blown and bell rung before the car had passed another crossing, about 1,100 feet distant. The car was approaching this crossing over which the plaintiff had a lawful right to drive his cattle, and it was the duty of those operating the car either to give a signal in time to permit a party about to use the crossing to avoid the danger, or if a signal was not given, to approach the crossing with the car under such control that it could be stopped before the crossing was reached if, when the car reached a point from which the crossing became visible, it was found that persons or animals were crossing the track. The evidence certainly warranted a finding that this car gave no signal of its approach to the crossing. It warranted the further finding that when the car reached a point from which the crossing was visible it was either moving at such a rate of speed that it was impossible to stop it before the crossing was reached, or, if the car could have been stopped before reaching the crossing, those operating the car did not make proper efforts to stop it when they saw the cattle upon or at the edge of the track. The learned judge of the court below submitted the question of the negligence of the employees of the defendant company to the jury, with instructions which have not been assigned for error. The question of such negligence was for the jury, and it would have been improper for the court to give binding instructions in favor of the defendant. ■

The appellant has no just cause to complain of the manner in which the question of the contributory negligence of the plaintiff, or his servant, was submitted to the jury. The employee of the plaintiff who had been delegated by the latter to drive the cattle from the field, testified that he stood and watched the regular passenger car going past and then opened the gate on the side of the right of way next the barn, that he crossed the track and just before opening the gate for the cows, upon that side, looked up and down the track to see whether the track was clear after the other car had passed; seeing no car, he opened the gate, when three of the cows pushed past him, he again looked up the track and saw an approaching freight car, the car which killed the cattle, at the top of the hill 500 or 600 feet away. He then jumped in front of the remainder of the herd, some twelve or fourteen head of cattle, and prevented their entering upon the track, and the freight car ran down over the crossing and killed the three cows. This witness testified through an interpreter, and his cross-examination may have tended to throw some doubt upon whether he had looked up and down the track immediately before opening the gate, which permitted the cattle to go upon the track, but the truth of his testimony was for the jury. There can be no question that if this witness told the truth the cows were upon the track when the car appeared at the top of the hill, 500 or 600 feet .away. The court instructed the jury, upon this point, as follows: “Now did he look immediately before he opened the gates or admitted the cows to the right of way of the defendant company? If he did not look at that time, if he looked just before opening the gate when on the other side of the track and then walked from there over to the side of the track where the cows were and .opened the gate without looking between the time of open-ring the first gate and letting the cows out on the track he ■ would be guilty of contributory negligence and such contributory negligence would be attributable to the plaintiff and thereby defeat his right to recover.” This instruction properly fixed the measure of duty of the plaintiff and his employees in using this crossing; to require more would be practically to prevent his use of the crossing under any circumstances: Hanlon v. Traction Company, 28 Pa. Superior Ct. 223. The specifications which have not been withdrawn by the appellant are dismissed.

The judgment is affirmed.