Schwartz v. Delaware, etc., R. Co

should be for the defendant. without reading."

Answer: The first point is refused

"(3) In the absence of all evidence on the subject, the presumption is that the decedent observed the precautions which the law prescribed, to stop, look, and listen at a safe and proper place before driving upon the crossing. This presumption is a presumption of fact and is slight and faint at the best in this class of cases, and is completely overthrown by the affirmative proof to the contrary by the witness Riley, who testified that he was watching the horses and wagon from a point at least 30 feet away from the crossing, and that they did not stop before they were struck. Answer: The third point is refused without reading."

"(5) There is no limit to the rate of speed at which a railroad company may run its trains through the open country and over the crossings of country roads, so long as the bounds of safety to patrons are not transgressed. Answer: The fifth point is refused without reading.

"(6) Where the exact rate of speed of a train, as shown by its schedule and testified to by the engineer, who was running the same shows a rate of speed of 45 miles an hour, the court will consider of no value the testimony of a witness who states that the train was running very fast, but does not state how fast, nor fix any standard by which the speed of the train could be ascertained. Answer: The sixth point is refused without reading.

"(7) It is not negligence for a railroad company to run a passenger train in the nighttime or early morning an hour behind its schedule time and over a country crossing at the rate of 45 miles an hour. Answer: The seventh point is refused without reading; it being covered in the general charge.

nals); West v. Northern Pac. Ry. Co. (N. Dak.), 12 R. R. R. 655, 35 Am. & Eng. R. Cas., N. S., 655 (contributory negligence, excessive speed, and the absence of signals); Green v. Missouri Pac. Ry. Co. (Mo.),- 18 R. R. R. 793, 41 Am. & Eng. R. Cas., N. S., 793 (contributory negligence, unlawful speed of train, and failure to give statutory signals, railroad not liable for injury_to_pedestrian); Louisville & N. R. Co. v. Molloy's Adm'r (Ky.), 18 R. R. R. 714, 41 Am. & Eng. R. Cas., N. S., 714 (where speed of a train is great, care commensurate with the danger in giving warning of the approach_of_train must be observed); Moore v. Lindell Ry. Co. (Mo.), 8 R. R. R. 46, 31 Am. & Eng. R. Cas., N. S., 46 (no recovery where failure to signal and excessive speed and subsequent contributory negligence); Crawford v. Chicago G. W. Ry. Co. (Iowa), 16 Am. & Eng. R. Cas., N. S., 628 (contributory negligence as affected by failure to give signals and excessive speed); Neal v. Carolina Cent. R. Co. (N. Car.), 18 Am. & Eng. R. Cas., N. S., 51 (contributory negligence will bar recovery, though train was violating ordinance as to speed and there was negligence as to signals and lookout); Schneider v. Chicago, M. & St. P. Ry. Co. (Wis.), 11 Am. & Eng. R. Cas., N. S., 81 (effect of failure to give signals and excessive speed at crossing on contributory negligence); Hutchinson v. Missouri Pac. Ry. Co. (Mo.); 20 Am. & Eng. R. Cas., N. S., 700 (liability a question for jury where there was contributory negligence and speed in violation of ordinance); Georgia R. & B. Co. v. Cromer (Ga.), 12 Am. & Eng. R. Cas., N. S., 318 (rate of speed and signals at country crossings, negligence as to a question for jury).

Schwartz v. Delaware, etc., R. Co

"(8) The negative testimony of five witnesses that they did not hear the whistle blown, especially where all of said witnesses were a long distance away from the point where it became the duty of the engineer to blow his whistle, it being no part of the duty of such witnesses to listen for the approaching train or its signal, and their attention not having been called to the fact of whether or not the whistle was blown by any circumstance whatever, amounts only to a scintilla, and cannot prevail against the overwhelming and positive testimony of the engineer and all the members of the train crew, and of two other wholly disinterested witnesses who were standing, the one about 100 feet, and the other about 200 feet, from the engine when it was whistling, and who watched it as it whistled, and testify positively that the train. did whistle. In such a case this positive testimony conclusively establishes the fact that the trainmen performed their duty, and the plaintiff is not entitled to recover. Answer: The eighth point is refused without reading."

The court charged in part as follows: "There is one question involved in the matter, and that is the question of speed. Ordinarily a railroad company has the right in the country districts, in the open country, to run its trains at such speed as it believes to be right or thinks proper. That is the general principle of law. If, however, the circumstances in any case are such that running a train at a high rate of speed would prevent a person entering a crossing to get over before the train. would get at the crossing, then it is the duty of the railroad company to moderate its speed. I state the matter plain in this connection, in order that there will be no quibbling about what the court says, and in order that, if the court is wrong, it may be consistently wrong."

"Where there is much travel at all hours over a crossing, it is the duty of the company not to accelerate, but to moderate, the speed of its trains. This, of course, applies to only exceptional cases. Ordinarily the ordinary country crossing does not admit of any qualification of this rule; but, where the circumstances are different, there, it is the duty of the company to moderate its speed. Now, in this case, you will remember there is some testimony that at the crossing there was a creek near by, the noise of which may have prevented the hearing of approaching trains, and the alarm given thereby. There is also some testimony that there was a tieyard along the road, between the road and the, railroad track. There is also some testimony that there was a bluff along the track in the neighborhood of this crossing or a little beyond, and there is also testimony that there were trees in foliage along the track. Whether all these elements would be present to determine at what distance the whistle should sound, and as to what speed the locomotive and the train should approach the crossing, is a matter for you to determine. The question is: What was the speed of the train upon this day? And, after you have determined that, then the question is: Taking the alarm given, and the place it was given, would it afford sufficient time for a person entering

Schwartz v. Delaware, etc., R. Co

upon the track of a railroad to pass over or to back, if that were feasible, in order to get out of the way of the approaching train?" "The engineer testified that the speed was 45 miles an hour— that is my recollection of it—and the train crew testified to a speed of varying from 30 to 40 miles an hour, as I remember it, but, what the exact figures are, they are for you. The witnesses for the plaintiff testified that the speed was a rapid one, but I do not think any of them testified to a certain rate of speed. It is apparent, gentlemen of the jury, that all these statements are but estimates. We have no testimony in this case which would fix with mathematical precision the exact rate of speed that the train was going at, at the time that these boys were struck, and it is therefore for you, under all the evidence in the case, to determine at what rate of speed this train was going, and I recur to this, and you may apply it to my former instructions as to the rate of speed as bearing upon the question as to whether the alarm was given at the right place, and whether it was sufficiently given, under all the surroundings in this case, as described by the witnesses." Verdict and judgment for plaintiff for $4,282.50. appealed.

Defendant

Argued before FELL, BROWN, MESTREZAT, POTTER, and ELKIN, JJ.

A. Mitchell Palmer and Everett Warren, for appellant.

F. B. Holmes, J. H. Shull, C. C. Shull, and Samuel E. Shull, for appellee.

BROWN, J. When this case was here before (211 Pa. 625, 61 Atl. 255) on appeal from the refusal of the court below to take off a judgment of nonsuit, we hold that on the evidence submitted by the plaintiff the liability of the defendant was for a jury. On this second trial nothing offered by way of defense would have justified the court in directing a verdict for the appellant, and, but for a single error, the judgment would be affirmed.

The first contention of the appellant is that, from the testimony submitted by it, the presumption that the deceased had stopped, looked, and listened was completely overcome, and the court ought to have so instructed the jury. But a single witness, the engineer in charge of the locomotive, was called in the attempt to show that they had not stopped. He, however, does not say that they did not stop. His testimony is: "I did not see them stop.' It is fairly argued by counsel for appellee that he was not able to say they had not stopped. He admits that between his seat in the locomotive and the road the boiler intervened, at an elevation of nine inches above the level of his eyes. This in itself would have prevented his full view of the team as it approached the railroad, and he says that if the deceased had stopped at the foot of the ascent to the tracks he could not have seen them. His testimony as a whole, instead of having the effect claimed for it by the appellant, could have been of little, if any, use to the jury on the question of stopping.

Schwartz v. Delaware, etc., R. Co

A second complaint of the appellant is that, in view of the positive testimony submitted by it that proper notice of the approach of the train had been given by a whistle, the court ought not to have permitted the jury to find that such warning had not been given on what is termed the negative testimony of plaintiff's witness. When a witness testifies that, at or near a railroad crossing, his attention was upon an approaching train, that he was listening for it, heard its approach and heard no whistle, his testimony is not of a negative grade, but may be regarded, if believed, as proof that no whistle had been sounded, and it receives additional weight when taken in connection with the testimony of other witnesses which may be of a negative character. Longenecker v. Penna. R. R. Co., 105 Pa. 328; Quigley v. Canal Co., 142 Pa. 388, 21 Atl. 827, 24 Am. St. Rep. 504; Daubert v. Delaware, Lackawanna & Western R. R. Co., 199 Pa. 345, 49 Atl. 72. Five witnesses were called by the plaintiff who testified they heard no whistle before the train struck the wagon. Four of them were in close proximity to the crossing, and one of them, James Anderson, a railroader of five years' experience, was at work in his yard. He testified that when he heard the train coming he stopped work and listened for a minute or more. At the rate of speed testified to by the engineer, it must then have been three-quarters of a mile away from him. He said he listened and heard no whistle. This testimony could not be ignored. The weight of the testimony as to the whistling may have been with the defendant; but, even if the court below so thought, and we so think, it conflicted with that submitted by the plaintiff, sufficiently, if believed, to justify a finding that the whistle had not been blown, and it was therefore for the jury alone to pass upon this important disputed question of fact. Cromley v. Penn. R. R. Co., 211 Pa. 429, 60 Atl. 1007.

As the case must be retired, we need not consider the tenth assignment, which complains of the court's refusal to allow the appellant to file an additional reason for a new trial. The timetable offered in evidence by the plaintiff, showing the distance between Stroudsburg and Water Gap, was published by the company itself, and therefore presumably correct. It was offered in evidence to show the distance between these points, as a basis for fixing the speed at which the train was approaching the crossing. The sole objection to it as evidence was that the distance as given in it between the stations was only approximate, that it had not been printed for the purpose of showing the distance with any accuracy, but only for the general information of travelers. It was admitted with leave to the company to show that it was not correct, and, as the objection to it was properly overruled, the eleventh assignment is dismissed.

In his instruction to the jury, the trial judge said: "There is one question involved in the matter, and that is the question of speed. Ordinarily, a railroad company has the right in the country, to run its trains at such speed as it believes to be right or thinks proper. That is the general principle of law. If, however, the circumstances in any case are of such that running a train at a high rate of speed would prevent a person enter

Schwartz v. Delaware, etc., R. Co

ing a crossing to get over before the train would get at the crossing, then it is the duty of the railroad company to moderate its speed. I state the matter plain in this connection, in order that there will be no quibbling about what the court says, and in order that, if the court is wrong, it may be consistently wrong." This was error, repeated in the court's refusal to affirm the fifth and seventh points presented by defendant. From that portion of the charge quoted, the jury might have found a verdict in favor of the plaintiff simply because the train was running at a high rate of speed, even if the proper warning had been given of its approach. There was nothing in the case to show that the warning, by a whistle, of the approach of a train at the crossing, could not be heard; nothing to show that looking and listening would not protect the traveler from danger at that point. Further on, the trial judge said what is the subject of the eighth assignment of error: "Where there is much travel at all hours over a crossing, it is the duty of the company, not to accelerate, but to moderate, the speed of its train. This, of course, applies to only exceptional cases. Ordinarily the ordinary country crossing does not admit of any qualification of this rule: But, where the circumstances are different, there, it is the duty of the company to moderate its speed. Now, in this case, you will remember there is some testimony that at the crossing there was a creek near by, the noise of which may have prevented the hearing of approaching trains, and the alarm given thereby. There is also some testimony that there was a tieyard along the road, between the road and the railroad track. there is also some testimony that there was a bluff along the track in the neighborhood of this crossing or a little beyond, and there is also testimony that there were trees in foliage along the track. Whether all of these elements would be present to determine at what distance the whistle should sound, and as to what speed the locomotive and the train should approach the crossing, is a matter for you to determine. The question is: What was the speed of the train upon this day? And, after you have determined that, then the question is: Taking the alarm given, and the place it was given, would it afford sufficient time for a person entering upon the track of the railroad to pass over or to back, if that were feasible, in order to get out of the way of the approaching train?

If the question had been as to where the whistle ought to have blown, there might have been no error in the court's submitting the rate of speed to the jury to enable them to determine how far from the crossing the signal ought to have been given. The instructions complained of may have been intended for that purpose, but they could hardly have been so understood by the jury, for they were told that, where there is travel at all hours over a crossing, it is the duty of the company to moderate the speed of its trains. There was nothing to show that a traveler approaching this crossing could not have heard the whistle if it had been sounded. The case was tried on the theory that no whistle had been blown, not as to where it ought to have been blown, and the