
    HOWARD VS. PHILADELPHIA & READING R. R. CO.
    The finding of facts by a referee will not be- disturbed if there is any evidence to support it.
    Running a train at a speed of 20 miles an hour at an unprotected •crossing is not necessarily negligence.
    Error to Common Pleas No. 3 of Philadelphia County. No. 94 January Term, 1884.
    This case was referred to G. M. Dallas, Esq., as referee under the Act of May 14, 1874, and his report and decision was as follows:
    This action has been submitted to my decision under the Act -of May 14, 1874, by agreement in writing duly filed of record -in the office of the Prothonotary of the court in which the suit is pending, where also there has been duly filed my acceptance of the office of Referee and the appointment of a time and place of hearing, together with the agreement of counsel to the place appointed, and my oath faithfully and impartially to perform my duties as such Referee.
    
      The Act provides that the Referee shall, in all things pertaining to the trial and decision, of the case, have the powers and perform the duties that would belong to the court under a like submission. The case has now been duly tried before me, and the duties of the court under a like submission are prescribed by the Act of April 22, 1874, which provides, as to the decision, that it shall be in writing, stating separately and distinctly the' facts found, the answers to any points submitted in writing by counsel and the conclusions of law, and shall be filed in' the office of the Prothonatary.
    [Before deciding the case in accordance with these directions of the statute, I will dispose of an application which was-made on behalf of the defendants during the trial, and not then passed upon by me. Defendants’ counsel asked a witness-for defendants upon re-examination the following question." “What was your object in saying to Mr. Magee that you would not settle the wagon case unless you settled the whole case — ■ that is, you would settle both cases or neither case?” To this-question plaintiff’s counsel objected. I overruled the objection, because it seemed to me to be apparent, from the course of the preceding- cross-examination, that plaintiffs counsel contemplated urging upon the argument that the motive of the witness (an agent of the defendants), in declining to settle with Mr. Magee for his wagon unless the claim of the plaintiff for personal injuries should also be settled, zvas to induce Magee (the employer of the plaintiff) to assist in bringing about an unfair settlement with the plaintiff, and I thought that it zvas due-to the zvitness that he should be allozved to make his ozvn statement of zvhat his motive zvas. To this ruling an exception for plaintiff was noted. Subsequently, and before the evidence for defendants was closed, their counsel asked leave to withdraw from the testhnony and its consideration by the Referee the question above quoted and the answer thereto. This application was resisted, and its determination reserved. I now, upon tlm authority of Unaugst vs. Kraemer 8 W. & S. 391, and Miller vs. Miller, 4 Barr 317, grant the -application and strike out the question and anszver referred to, and zvill decide 
      
      the case zvitliout considering the evidence so stricken out, and as if had not been offered or received.] .
    This is an action on the case wherein the plaintiff seeks to recover damages for injury to himself, resulting from a collision of a locomotive engine and train of cars, operated by the defendants, with the wagon upon which the plaintiff was seated. The pleas were not guilty and release, and to the latter plea plaintiff replied, that the release was executed when plaintiff was of unsound mind and understanding, caused by the injuries in the declaration mentioned, and when plaintiff had no sufficient, due and legal knowledge of said alleged release, or of its intent and effect.
    
      I. — The Facts Found.
    
    The defendants wrere operating and managing the Norris-town branch of the Philadelphia and Reading Railroad, upon and before and after March io, 1881. Upon that .day, at about fifty minutes after seven o’clock in the evening, the plaintiff attempted to cross that railroad with a wagon and pair of horses. The wagon was struck by a locomotive, and the plaintiff was thrown about thirty feet and was seriously injured. The collision occurred upon the Twenty-second street crossing. The plaintiff was driving down Twenty-second street towards the south, and the train to which the locomotive was attached was going towards the west. The train was upon the northernmost of the two tracts. The plan in evidence, marked '“No. 4, April 27, 1883, G. M. D.,” correcty represents the place where the collision occurred and its neighborhood, as .of the time of the occurrence, except that it does not exhibit the fact that there was then some lumber deposited between the watch-box and the houses in its rear, and certain trees Which were then standing have since been cut down and their stumps ;only are indicated upon the plan.
    This was a public crossing, and Twenty-second street was a frequented highway, but at the point in question, álthough within the limits of the city of Philadelphia, the country was suburban and generally open, and but little built upon.'
    
      [The plaintiff’s counsel asked one witness, without objection, whether or not this crossing was dangerous, and he replied that it was. Subsequently he asked another witness the same question, and I sustained an objection of defendants’ counsel thereto; but I attach no importance to this, for I would not rely upon the opinions of witnesses upon this subject, in view of the fact that, by request of counsel of both parties, and in their company, I went upon the ground myself. My own observation is the real basis of my conclusion, which would be the same as it is if the witness last referred to had been permitted to and had testified that the crossing was a dangrous one.]
    My finding is that this crossing was dangerous in the sense in which all grade crossings are dangerous, and also that, in some degree, it was peculiarly dangerous, but I purposely avoid the use of adjectives. I do not find that it was very dangerous. From a point upon Twenty-second street, about one hundred and eighty-six feet northward of the track, a train approaching that street as this one did could not be seen by a person driving-on Twenty-second street towards the railroad, as this plaintiff was driving, immediately before the collision occurred. The buildings and fence shown upon the plan before referred to wholly prevented the track from being seen from any part of Twenty-second street, from the point already mentioned to the corner of the house to the rear of the watch-box and nearest to it. [But before reaching the point at one hundred and eighty-six feet northward of the railroad, the view of the tracks, although somewhat broken by intervening trees, was not so obstructed by them, or otherwise, as to prevent a train approaching from the eastward from being readily seen] and [although the watch-box, two small trees in front of it, and some lumber behind it, stood between the corner of the house nearest to the railroad and the tracks, yet it was possible for a person driving a wagon, without leaving it or his team, by stopping and looking, after passing the corner of the house, to see a train approaching from the eastward at such distance from -the crossing as sufficiently to inform him of its coming.] These findings in detail are stated for the purpose of showing upon what my finding of the before-stated ultimate fact, that the crossing was dangerous, rests, and in explanation of what I have meant in saying that it was to some extent peculiarly ■dangerous, but not very dangerous.
    This crossing was guarded, until seven o’clock of each day/ by a flagman, employed by the defendants, but only until seven o’clock in the evening, and at the time of this accident he had gone off duty for the day, and there was then no person at this •crossing to give warning of the approach of trains. The train in question was running at the time of the accident at the rate of from eighteen miles to twenty-three miles an hour. The usual locomotive whistle was given as a notice of the approach of this train to this crossing, and was given at a proper and timely point. The headlight on the engine was burning. The plaintiff drove an ale wagon down Twenty-second street upon a trot — the ordinary trot of work horses, faster than a walk, but not an unusual speed. He could, by looking, have seen the headlight of the locomotive before he reached the point, one hundred and eighty-six feet to the northward of the track, and, for a considerable and sufficient distance before reaching that point, with but slight and unimportant interruptions from occasionally intervening trees, and, again, by stopping and looking, he could have seen it, his horses and wagon being clear of the track, after passing the corner of the house near the railroad, as before described. He pulled up his horses j ust as they were stepping upon the track, but too late to avert the accident. The locomotive was then so close to the crossing that, although the engineer, who saw the horses at about this moment, immediately reversed his engine, the wagon was struck.
    The plaintiff’s injuries were serious, and the illness which subsequently resulted from them is most distressing.
    His immediate injuries consisted of two severe scalp wounds and a tumor upon the small of the back, which prevented him from leaving his house for about a month, and confined him to bed for. about ten days. [Subsequently and about a year after the accident, but not sooner than that, the plaintiff- was seized with epileptic fits. This was a consequence of the accident, and resulted from slow and progressive changes in his brain or its covering, ultimately producing the condition of epilepsy, the seeds of which may, to adopt in part the language of one of the expert witnesses, be said to have been planted at the time of the accident, and slowly to have developed. His disease is absolutely and permanently disabling and incurable.]
    Upon April 7, 1881, the plaintiff, in consideration of the sum of one hundred dollars, then paid him, executed -and delivered a release of his claim for damages; and [although at that time he was not in as vigorous and robust health as before the accident, I am satisfied that he was not then of unsound mind or understanding, and that he had due and sufficient knowledge of the release and of its intent and effect.]
    
      II. — Conclusions of Law.
    
    Were the defendants guilty of negligence which caused the injury to the plaintiff?
    “Negligence has been defined to be the absence of care according to the circumstances, and is always a qustion for the jury when there is reasonable doubt as to the facts, or as to 'the inferences to be drawn from them. When the measure of duty is ordinary and reasonable care, and the degree of care varies according to circumstances, the question of negligence is necessarily for the jury. There are, however, certain duties of a precise and determinate nature, the neglect of which the law declares negligence, per se.” (Pennsylvania Railroad Company vs. White, 6 W. N. C. 516). The question of negligence may be one of fact, or of inference from the facts, or it may be one of law; but for the purposes of this case I have thought it expedient, having already specially found the-■facts upon which its determination must depend, to reserve that question for complete and connected consideration under this head.
    Sufficient and timely warning having been given by the whistle of the locomotive, was there negligence in the approach of this train to this crossing (being such as it has been described), at a rate of speed from eighteen to twenty-three miles an hour, without maintaining a gate or a flagman stationed there ?
    It is not, irrespective of circumstances, the common law duty of the operators of a railroad to run their trains at a slow or reduced rate of speed when coming to or passing over public grade crossings; and [I am of opinion, therefore, that the defendants did not neglect any duty “of a precise and determinate nature, the neglect of which the law declares negligence, per se.”] So far as the question of negligence is to be decided by determining what the decision of a jury upon it should be— that is to say, in so far as the “measure of duty is ordinary and reasonable care, when the degree of care varies according to circumstances,” [my conclusion is that, under the circumstances of this case, the defendants did not violate or omit their ■duty, or fail to exercise ordinary and reasonable care in running this train at the speed at which it was run to and at the crossing in question, and in having neither a flagman nor a gate there at the time].
    It follows that [the defendants were not guilty of negligence] .
    What has been said upon the question just discussed renders it unnecessary for me to consider the subject of contributory negligence; and the fact having been found that the plaintiff was of sound mind when he executed and delivered the release of damages, that release would be, of course, a bar to his present action, if otherwise maintainable.
    The decision of referee upon exceptions and motions for a new trial was as follows:
    The plaintiff, by his counsel, has in due time filed several exceptions to my decision, and has also moved for a new trial, and formally assigned his reasons in support of that motion. The exceptions and this motion have been argued together.
    Passing by the possible question whether a new trial can, in any. case, be properly ordered by a referee under the act -of 1874, a point which was suggested, but not pressed upon the argument, I have considered the motion fully, and have arrived at the conclusion that it should not be granted.
    When the accident occurred the evening was dark. It had. been raining and it was still cloud}''. This was not stated in hay decision of the case, and my attention being called to the omission by the third exception, I deem it proper to now add this fact to such of my findings in detail as were stated in connection with the more general finding that the crossing was at the time dangerous, but not very dangerous. I do not, however, alter that general finding. The darkness, or condition of the atmosphere, was not such as to prevent the locomotive, with headlight burning and the whistle sounded as previously found by me, from having been seen and heard, as I have before stated.
    In my answer to the third of the points, which were submitted to me on behalf of plaintiff, I inadvertently misstated the date at which plaintiff went to work after the accident. It was April 9, not April 11. This correction, however, does' not, in any manner, affect the result.
    [To the extent to which my findings of fact have been now-modified, the exceptions are sustained.. In all other respects the exceptions are dismissed, a new trial is refused, and it is now ordered that judgment be entered according to the decision previously filed.]
    The statute directs that “the decision, together with what pertains to it,” shall be filed. The pleading has been already filed by the counsel of the respective parties, and there remains the evidence, the points submitted, the motion for new trial and the reasons assigned in support thereof, and the exceptions, and these will be filed herewith.
    Howard then took this writ of error, complaining of the portions of the findings in the brackets.
    
      Messrs. E. Hopkinson and T. C. Patterson, Esqs., for plaintiff in error,
    argued that it was error to reject the opinions of witnesses as to the danger of the crossing; Beatty vs. Gilmore, 16 Penna. 463. The referee saw the crossing on a bright May morning and it was error to say he would prefer his own observation to the testimony of Haney, who crossed the tracks a few minutes before the accident. The referee erred in not finding certain facts which were proved by the testimony; and has not separately and distinctly stated all the facts of the case; Marr vs. Marr, 13 W. N. C. 544; Butterfield vs. Lathrop, 71 Pa. 225; Thornton vs. Company, 71 Pa. 234; Vansyckel vs. Stewart, 77 Penna. 127; Ellis vs. Lane, 85 Pa. 265; Foreman vs. Hosler, 94 Pa. 418; Linnard vs. City, 10 W. N. C. 152. The referee erred in deciding that the company was not guilty of negligence, even though running at a rate of more than twenty miles an hour in the city limits, at a crossing where there was no watchman: Reeves vs. Railroad, 30 Pa. 454; Railroad vs. Ogier, 35 Pa. 71; Railroad vs. Long, 75 Penna, 237; Railroad vs. Killips, 88 Pa. 410; Railroad vs. Henderson, 51 Pa. 315; Water Co. vs. Stewartson, 96 Pa. 438; McKee vs. Bidwell, 74 Pa. 218. It was negligence not to have a watchman at this crossing; and the fact that the watchman was put on after the accident shows that it was necessary: Railroad vs. White, 6 W. N. C. 518; Railroad vs. Ackerman, 74 Pa. 268. The referee should have rejected the release on account of the imposition practiced on Howard when he was disabled by the accident: Landis vs. Landis, 1 Grant 248; Noel vs. Karper, 53 Pa. 99; Rogers vs. Walker, 6 Pa. 373; Gangwere’s Estate, 14 Pa. 417; Nace vs. Boyer, 30 Pa. 99; Ellis vs. Lane, 85 Pa. 270; Marr vs. Marr, 13 W. N. C. 544; Crawford vs. Scovel, 8 W. N. C. 364; Wilson vs. Bigger, 7 W. & S. 121; Jackson vs. Summerville, 13 Pa. 368; Kaine vs. Weigley, 22 Pa. 183; Abbey vs. Dewey, 23 Pa. 416.
    
      Thomas Hart, Esq., contra, inter alia,
    
    cited Bank vs. Wirebach, 10 W. N. C. 143; Davidson vs. Little, 22 Pa. 245; Marr vs. Marr, 13 W. N. C. 544; Butterfield vs. Lathrop, 71 Penna. 225; Thornton vs. Company, 71 Pa. 234; Vansyckel vs. Stewart, 77 Pa. 177; Ferry Co. vs. Monaghan, 10 W. N. C. 46.
   The Supreme Court affirmed the judgment of'the referee on April 14th, 1884, in the following opinion:

Per Curiam.

A referee under the act of May 14, 1874, P. L. 166, takes the place of both court and jury. The same weight must therefore be given to his finding of facts, as if the}'' had been found by the jury. If there was sufficient evidence of them to submit to a jury, we cannot disturb the1 conclusion at which he arrived. The case was mainly one involving facts. The evidence was somewhat conflicting; but no fact was found without evidence. They were found with sufficient form and accuracy. The law bearing thereon was correctly ruled.

Judgment affirmed.  