
    WILLIAMSPORT & NORTH BRANCH R. R. CO. VS. WEISS.
    Where a man stopped at a railroad crossing, where the view was obstructed, until an engine and some freight cars passed, and then not hearing anything, drove on, and was struck by some moving cars, that had been detached from the train, he was not necessarily guilty of contributory negligence.
    Error to Common Pleas of Lycoming County. No. 110 January Term, 1885.
    The facts of the case appear in the charge of the Court which was as follows:
    Gentlemen oe the Jury : — The issue which you Lave been sworn to try arises in an action on the case brought by Edward Weiss against tbe Williamsport and North Branch Bail road. Company. This action is brought by the plaintiff' to recover damages which he alleges he has sustained by tbe negligence of. tbe railroad company. Tbe cáse is peculiar in some of its aspects, and is different from any case in the books. It lies very close to the border of tbe eases which the Courts decide. I am of the opinion that it will be your duty in this case to decide it and not tbe Court. In all cases of this kind it is necessary for the plaintiff to show by satisfactory proof certain things. Otherwise lie cannot recover. Eirst he must show to you that he has been damaged. Second he must show that those damages. were the result of an injury — or arose from the negligence of the other party to the suit. You are not to presume that the railroad company committed negligence. The plaintiff must show it by proof that the damage was caused by their negligence. If it appears in the case that the plaintiff in any way contributed to the happenings of the accident then he cannot recover. Because if there is some blame on the plaintiff and some on the railroad company no Court and no jury have scales to measure what it ivas. That is true in all cases of this kind. There are no means of ascertaining how much fault there is on one part or another. It is only, when the plaintiff shows you that the injury arises from the fault of the defendant that he is entitled to recover.
    The railroad company defendant is a corporation which operates the line of railroad, .from Hall’s to Hughesville in this County. In the Borough of Hughesville the railroad crosses Water street. At that place the railroad is a straight line. About the middle of this straight line Water street crosses the railroad. On one side of this railroad were a number of piles of lumber — on the side of the track from which the plaintiff was approaching. The persons in charge of the railroad had made np a train of cars some distance abo ve, and were proceeding down towards the station. The track in the direction in which the ears were coming- is slightly inclined — so much so that a car will move of its own gravity. . As this train came within about 175 or 180 feet of this crossing two or three of the cars were detached, and a person left ou them to take care of them. They intended to stop them when they got over the crossing. The engine with two or three cars proceeded forwards in order to get away from them and give them room. After the locomotive had passed a point 135 feet beyond the crossing the cars in the rear had come to the crossing, and as they carno there they struck a wagon in which'the plaintiff was sitting. Just how far beyond the crossing the engine and cars were is not distinctly shown. One witness says he was 135 feet down and the engine and cars had passed him. How long before is not in evidence. A minute. would make a great difference, or a half minute. .'Depending on the momentum of the train. The testimony shows that they were pursuing their usual manner of transacting that business. You will notice from the drafts that there is but one track, but the switch below comes up so that the frog is on the upper side and the rails are right on the street. So perl taps there are four rails in the street, two being straight and two diagonal. Mr. Hill, who was on the forward cars, saw the plaintiff, or saw persons in a'wagon and called to them. Other witnesses who were in the vicinity heard him calling. As the car went forward the horse went on the track, and the horse seemed to stop suddenly, went forward, and the car struck the wagon.
    Now, whether or not there was any negligence on the part of the railroad company in moving their cars on their track at the public crossing will be one of' the questions for you to determine. This was at a public crossing. Both the parties have rights there. The plaintiff and all the public have rights there, and the rail road company has rights there. The railroad company is the owner of the right of way and of its track for the purpose of running steam cars. It is true that in their yard where the public have no rights they may run théir ears with or without engines, but when they come to a- point where the public have rights they must conduct themselves in such a way as will give the public warning. It is in evidence in this case that half these cars had been detached before they came to the crossing. If those in charge had taken the train on and uncoupled the cars where they wanted them there would have been no accident to record against anybody.. It was because they detached these ■ cars above the crossing and went forward and allowed a space to intervene that occasioned this accident. So far as the appearance from that side is concerned. ; If that is the ordinary and usual way of doing their business in respect to the circumstances by which they are surrounded, there is no negligence. You will remember the testimony in regard to that. That a great deal of the loading is done in that way — that lumber is piled in this street and along this track, and for the convenience' of the persons loading the cars are shoved back and forth as the necessities of the shippers may require. If in doing this they have taken all proper precaution to protect the public there is no negligence. If there is no negligence in the manner in which they managed their trains that day, then the plaintiff has no case hei’e. You go no further in the case. If there was no negligence on the part of the railroad company in their conduct then the case ends at that point, and your verdict is for the defendant. If, on the other hand, when you come to that part of the case you should be satisfied that there was negligence on the part of the railroad company then you go further. Because if there was negligence on the part of the railroad company it does not follow that the plaintiff is entitled to recover. That is only one branch. Was there any contributory negligence on the other side ? On the part of the plaintiff? Because if there was he cannot recover here, even if there was any fault on the part of the other party.
    Now, the plaintiff in this case during the day had gone with one Charles Wolf across this'very place, but a short time before the accident occurred. They had driven across there, and it was when they were returning that the accident occurred. This man Wolf was accustomed to be about the station, and had knowledge of the manner in which they did business, and how the lumber was piled and how trains were moved. The plaintiff placed himself in the custody of Charles Wolf when he got into his wagon. So if there is any negligence on the part of ■ Charles Wolf or on the part of Edward Weiss — if either are guilty of any negligence — -then the plaintiff in this case cannot recover.
    This accident happened on the 3rd of April, 1883, at about 11 o’clock in the day. A clear dqy. Charles Wolf, who was driving this team, had crossed this track that day six different times before this accident happened at this very place. As they came down to recross — within thirty or forty feet — they saw the train or smoke of the engine, and stopped. They waited there until the engine and cars had passed. Then they drove forward, and as the horse got on the track somebody halloaed “Whoa,” and the horse stopped. Wolf hit him with the-whip, the horse went forward and the accident occurred. Here is one of the troublesome points in this case ; to ' define the duties of the plaintiff and Charles Wolf in this case. The law requires that when a man approaches a grade crossing-it is his duty to stop, look and listen. If he cannot see, and if there is such noise that he cannot hear, it is his duty to get out of the wagon and take his horse by the head, and he or somebody else should go forward and ascertain whether or not there is any danger. Wolf and Weiss came up to this track and did stop. And it was afterwards — after the train had passed that they started forward and were struck by the detached cars that were coming on some two hundred feet behind.
    Now, if Edward Weiss or Charles Wolf knew that these other-ears were coming, or if they had knowledge of the manner in which the railroad company did business there that they did drop cars and allowed them to come following along — cars without an engine — they are bound to exercise whatever knowledge they had — then notwithstanding the train had passed they were bound to go foi-ward and see if any other cars were coming. If they had no knowledge on that subject they -were only bound' to exercise ordinary prudence and care. Hence the difficulty in applying the fixed rule. The Court cannot define negligence as applied to all cases. What would be common care and prudence, in handling sand would be culpable negligence in handling gun powder. Negligence is the absence of such care as a prudent and cautious man would exercise under whatever circumstances you choose to place him. Every man is bound to exercise that care and caution which a prudent man would do when occasion arises. If he makes a mistake of judgment that would not apply. It is said that when Wolf got on-to this track and saw the cars he struck his horse with the whip and brought the wagon on the track and the accident occurred. On the other hand it might bo said that if Hill had not halloaed “Whoa” nothing but the horse would have been on the track, and the man would not have been injured. These might be mistakes of judgment. The rule of law on this point is well established ; it is this: ' One, who without negligence, has placed himself in a position of danger is not responsible for an error of judgment in extricating himself from the peril so he exercises it in good faith. You will remember also in looking at the case — on the part of the plaintiff — whether there is any contributory negligence — you will observe the situation of the obstructions along the track and what their height was. And whether by exercising ordinary care they could have seen the coming of the car. Always remembering that if you find as a fact that this man Wolf had knowledge of the manner of doing business he must have it in his mind at the time and in addition to that he is bound to exercise his eyes and ears. You will observe what the opportunities were for his healing or seeing this car, and if either could have been done he was bound to protect himself and those under him. If he neglected to do what a prudent and cautious man would have done, then it is negligence on their part and the plaintiff cannot recover. With these general remarks I think the answers to the points will cover the entire case.
    Plaintiff’s counsel requests the Court to charge the jury.
    First. That if the jury believes from the evidence in the cause that danger might have been reasonably apprehended at the public crossing where the injuries complained of were sustained, then it was the duty of the company defendant to have given timely and proper warning of the approach of the train before reaching the crossing, and a neglect to give such timely and proper warning would be negligence on the part of the company ^defendant.
    That point is affirmed. They were bound to give proper notice and to conduct themselves in a proper manner as I have before stated. And the evidence is that J. P. II. Hill was on the first car approaching the crossing, and that he did call out twice-'That, I think, is the evidence.
    " ‘ Second. That if from all the evidence in the cause the jury believes the plaintiff tó be entitled to recover, then their verdict ■should be for direct expenses incurred by the plaintiff. For the privation and inconvenience he has been subjected to, for the pain and suffering he has endured bodily and mentally, and which he is likely to experience, and for the pecuniary loss he lias sustained and that he is likely to hereafter sustain in consequence of injuries received.
    That point is affirmed as a general proposition. But you will remember there is no evidence of Mr. Weiss having paid any sum of money as expenses. Indeed on the contrary the evidence is that the gentleman in charge of the railroad, without stopping to inquire who was in fault employed physicians and nurses and paid them. This is not to be construed as an admission of liability on their part for the accident. Because it was done immediately and from entirely different motives, and is not to be construed against them. In arriving at the pecuniary loss and damage in this case, you will, of course, take into account the fact that the plaintiff is about seventy-five years of age. That his occupation was that of a tailor, and was more engaged in mending than making new articles of clothing. That he -made •eight or nine dollars a week, and was employed half the time. These are to be considered in ascertaining the amount — if you find a verdict for the plaintiff. If he is to suffer in the future you will estimate that. How much has he lost in the past ? Of course that is the last point that comes in for consideration in a case of this kind. You start out first with the evidence that there was an accident. Was it the fault of the railroad company ? If it was not then the case stops there. You find a verdict for the defendant. If it was the fault of the railroad compauy then you go next to the question: Was there any fault on the other side ? If all the fault was on the part of the railroad company then the plaintiff would be entitled to recover. Then the question is how much ?
    Counsel for the defendant have requested us to charge you as follows:
    ■ First. That the burden of proving negligence is upon the plaintiff in this case; that there was any negligence on the part of. the defendant is not to be presumed.
    Thao point is affirmed. It is what I have repeated.
    . Second. That • the injury in this ease must have resulted wholly from the negligence of the defendant to entitle the plaintiff to recover.
    That point we also affirm.
    Third. That if the jury believe from the evidence that the injury resulted in any measure from the negligence of the plaintiff, or the negligence of those in whose company he was, the plaintiff is chargable with contributory negligence and cannot recover.
    That point is also affirmed.
    
      Fourth. That if the jury believe from the evidence that the view on the side of the railroad track to which the plaintiff was approaching, was obstructed, it was the duty of the plaintiff and the person with him in charge of the wagon in which said plaintiff was riding, to stop before attempting to cross the track, and if necessary to see to get out of the wagon, and look up and down the railroad, and the omission to do so constitutes contributory negligence, and the plaintiff cannot recover in this case.
    That point is affirmed as a general proposition of the law, but as applicable to this case after the engine and the cars had passed, for which the plaintiff had stopped and waited, it is submitted to you in a little different form. In these words: “If under the circumstances an ordinarily prudent and cautious man would have gotten out of his wagon and approached the track at the head of his horse, etc., until he could see if there was any danger of an approaching train, it was the duty of the plaintiff and of Challes Wolf, who was driving the wagon, one or either to do so, and if their neglect to do so contributed to this injury the plaintiff cannot recover.
    Fifth. That the defendant cannot be charged with the negligence of the driver in charge of the wagon in which the plaintiff' was riding at the time he received the injury for which this suit is brought, the said driver not being an agent or employee of the company.
    That point of course is affirmed. The railroad company is not responsible for the conduct of the driver.
    Sixth. That if the jury believe that Charles Wplf, the driver of the wagon in which the plaintiff was a passenger was guilty of the slightest contributory negligence — even if the defendant was guilty of negligence, the piaintiff cannot recover.
    That point is also affirmed. It is what I have already stated. If there is fault on the part of Charles Wolf still this plaintiff cannot recover even if there is fault on the other part.
    Seventh. That as the plaintiff has shown that he was approaching a crossing of great danger, that the driver of the vehicle was well acquainted with it and crossed it every day, that his horse was gentle and accustomed to the cars, that the view of the track was obstructed by piles of lumber, that it was the duty of the plaintiff to alight froto the wagon and look up 'and down the track for approaching trains, and having failed to do so he cannot recover in this action.
    That point I answer if the jury find the facts as stated here, as a general proposition it would be true. It is only for you to determine as applied to this case after the first part of the train had passed. The evidence is that these parties did stop and wait until the engine and cars had passed. Whether there was any negligence in their conduct after' that is a question which goes to you in this form :
    “If under the circumstances an ordinarily cautious and prudent man would have gotten out of his wagon, etc., to see if there was danger 'from an approaching train, it was the duty of this plaintiff and Charles Wolf to do so. And if their neglect to do so contributed to this injury then the plaintiff cannot recover.”
    Eighth. That under all the evidence in this case the verdict must be for the defendant.
    That point I decline -to answer as requested. I am of the opinion that this case is one for the jury to decide under the law as I have given it to you. You will go into the investigation of this case first by ascertaining whether there was an accident. About that there is no doubt. Was the injury complained of the result of negligence on the part of the railroad company ? That must be proven. It is not to be presumed that there w'as negligence. It must be shown. If Yhere is proof that satisfies you that there was negligence then you go to the next point. If you are not satisfied of the negligence on the part of the defendant the case stops there. If there was negligence you go to the next inquiry, and that is whether or not the plaintiff or Charles Wolf by their negligence contributed to the happening of the accident. There again the presumption is that they did their duty, and that a man always does what is necessary for the protection of Iris own life. If the fault is all the fault of the railroad company and no fault on the part of Charles Wolf, then the plaintiff is entitled to recover, and then you proceed to the next question and ascertain how much damage the plaintiff has sustained.
    The jury rendered a verdict in favor of the plaintiff for $150. The railroad company then took a writ of error, complaining of the action of the Court in refusing to direct a verdict for the defendant.
    
      Messrs. H. C. Parsons and Crawford & Reeder, Esqs. for plaintiff in error
    argued that there was negligence on the part of the plaintiff; Penna. R. R. Co. vs. Beale, 73 Pa. 504; Hanover R. R. Co. vs. Coyle, 55 Pa. 396; North Pennsylvania R. R. Co. vs. Heileman, 49 Pa. 60; Central R. R. of N. J. vs. Feller, 84 Pa. 226; Rung vs. Shoneberger, 2 Watts 27; Carroll vs. Pennsylvania R. R. Co., 12 W. N. C. 348; Reeves vs. Delaware L. & W. R. R. Co., 30 Pa. 464; Waters vs. Wing, 59 Pa. 211.
    
      William W. Hart, Esq., contra
    
    cited Penna. R. R. Co. vs. Ackerman, 74 Pa. 265; Phila. & R. R. R. Co. vs. Spearen, 47 Pa. 300; West Chester & P. R. R. vs. McElwee, 67 Pa. 311; North Pa. R. R. Co. vs. Kirk, 90 Pa. 15; Schum vs. Penna. R. R. Co., 107 Pa. 8; Longnecker vs. Penna. R. R. Co., 105 Pa. 328; Penna. R. R. Co. vs. Goodman, 62 Pa. 329; Phila., W. & B. R. R. vs. Stinger, 78 Penna., 219; Kay vs. Penna. R. R. Co., 65 Pa. 269.
   The Supreme Court affirmed the judgment of the Common Pleas on March 2, 1885, in the following opinion:

Per Curiam.

This was a case for the jury. The question of negligence by the railroad company, and of contributory negligence by the defendant in error, were fairly submitted in a correct charge. The weight of evidence and the credibility of the witnesses, cannot be reviewed here. The evidence was sufficient to. send the case to the jury, and that fact disposes of the case here.

Judgment affirmed.  