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Drown v. Northern Ohio Trac. Co

will be liable for running over them if, by maintaining such a lookout and by using reasonable care and exertion to check or stop its train, it could avoid injury to them." 2 Thompson, Negligence, § 1629. (The italics are the author's). Now, it must be apparent, upon even a slight analysis of this rule, that it can be applied only in cases where the negligence of the defendant is proximate, and that of the plaintiff remote, for if the plaintiff and the defendant both be negligent, and the negligence of both be concurrent and directly contributing to produce the accident, then the case is one of contributory negligence pure and simple. But if the plaintiff's negligence merely put him in the place of danger, and stopped there, not actively continuing until the moment of the accident, and the defendant either knew of his danger, or by the exercise of such diligence as the law imposes on him. would have known it, then, if the plaintiff's negligence did not concurrently combine with defendant's negligence to produce the injury, the defendant's negligence is the proximate cause of the injury, and that of the plaintiff is a remote cause. This is all there is of the so-called doctrine of "the last clear chance." A good illustration is found in the case of railroad Co. v. Kassen, 49 Ohio St. 230, 31 N. E. 282. Kasşen walked through the rear car of the train on which he was a passenger to the rear platform, from which he either stepped off or fell off upon the track, where he lay for about two hours, when he was run over by another train. It was held that, although Kassen may have been negligent in going upon the rear platform and stepping or falling off, yet since the railroad company knew of his peril, and had ample time to remove him or to notify the trainmen on the later train, its negligence in not doing so was the proximate cause of Kassen's death, and the negligence of Kassen was remote. In that case the proximate cause and the remote cause were so clearly distinguishable, and it is so very evident from the opinion and the syllabus that this distinction was the real ground of the judgment of the court, that it is somewhat surprising that the doctrine of last chance, as stated in that case, should have been so often misinterpreted as a qualification of the doctrine of contributory negligence.

It is clear, then, that the last chance rule should not be given as a hit or miss rule in every case involving negligence. It should be given with discrimination. Since the plaintiff can recover only upon the allegations of his petition, if there is no charge in the petition that defendant, after having notice of the plaintiff's peril, could have avoided the injury to plaintiff, and there is no testimony to support such charge, the giving of such a charge would be erroneous. There is no such allegation in the petition in this case. But, further, there is testimony tending to prove that the plaintiff's team was driven upon the street railway track in the nighttime, ahead of the car, and that it continued on the track for a distance of 250 feet until struck by the car, without taking any precaution to avoid accident. Assuming that the defendant was negligent in not seeing the buggy on the track and in not avoiding

Drown v. Northern Ohio Trac. Co

the accident, yet the plaintiff's negligence was continuous and was concurrent at the very moment of the collision. It proximately contributed to the collision, for without it the collision would not have occurred. There was no new act of negligence by the defendant, which was independant of the concurrent negligence and which made the latter remote. Therefore there was no place in the case for the doctrine of "the last clear chance." There is a case, which was decided in the sixth circuit, which will illustrate our views, and a reference to it may save some further discussion. It is the case of Lake Shore & Michigan Southern Railway Co. v. Callahan, 2 Ohio Cir. Ct. Rep. (N. S.) 326, 15 O. C. D. 115. A railroad sectionman, in obedience to an order by his foreman, started to walk along the track with his back to a locomotive 200 or 300 feet away, but without observing whether the engine was standing still or running backward, and he walked along the track for 75 feet without paying any futher attention to the engine, which was in fact backing toward him, and was struck by it and injured. The court held that it was a case of concurrent negligence, continuing to the moment of the injury; that the doctrine of "the last chance" did not apply; and that plaintiff was guilty of contributory negligence. Similar views were expressed by the New York Court of appeals, in Rider v. Syracuse R. T. Co., 171 N. Y. 139, 148, 63 N. E. 836, 58 L. R. A. 125, per O'Brien, J., as follows: "The contributory negligence of the injured party cannot be taken from the jury, except in cases where it is clear that there was some new act of negligence on the part of a defendant that was the proximate cause of the injury. The negligence of the deceased, if any, was substantially concurrent with that of the defendant, if any. It is impossible to separate that part of the transaction which took place after the first contact of the car with the vehicle from what took place before. It was all one transaction, and to attempt to divide it into fragments, and impute one part of it to the negligence of both parties and another part to the defendant's negligence alone, would, as it seems to us, entirely subvert the law of contributory negligence as applied to accidents of this character. If the theory upon which this case was tried and submitted is to be sanctioned, it must, we think, follow that in every case based upon such an accident the result must turn, not upon the general rule as stated, but upon the exception; or, in other words, the inquiry must be not whether the injured party was negligent, but whether it was reasonably possible for the defendant to have avoided the accident."

We do not feel willing to close this opinion without reference to P., Ft. W. & C. Ry. Co. v. Krichbaum's Adm'r, 24 Ohio St. 121. While the whole of the court's opinion, delivered by McIlvaine, J., is pertinent, we quote only the following: "Neither of these instructions, however, indicated the rule by which the jury should be governed, in case they found the injury to have resulted from combined causes, to wit, the co-operation of negligent conduct on the part of both the defendant and the deceased. With regard to the rule in such case, the court gave to the jury two proposi

Winterbottom v. Philadelphia, etc., R. Co

tions, as follows: 'It matters not how careless the servants of the defendant may have been, the plaintiff ought not to recover, if the deceased or his father could have avoided the collision by the exercise of care, diligence, and prudence. On the other hand, it matters not how careless the deceased and his father may have been, if the ersons running the train could, by the exercise of ordinary care, prudence, and diligence, have avoided the collision, and did not, then the plaintiff ought to recover.' The first proposition was quite as favorable to the defendant as it should have been, but the latter was to its prejudice and is wholly indefensible."

WINTERBOTTOM et al. v. PHILADELPHIA, B. & W. R. Co.

(Supreme Court of Pennsylvania, April 22, 1907.)

[66 Atl. Rep. 864.]

In an action for

Railroads Accidents at Crossing-Evidence.* injuries to a boy run over at a crossing, where the evidence of witnesses for defendant that the proper signals were given was contradicted by witnesses for the plaintiff, the court will not say as a matter of law that the negative testimony for plaintiff was insufficient to overcome the positive testimony for defendant.

Appeal from Court of Common Pleas, Delaware County.

Action by Jane E. Winterbottom, in her own right, and Francis Maurice Winterbottom, by his mother, Jane E. Winterbottom, against the Philadelphia, Baltimore & Washington Railroad Company. Judgment for plaintiffs, and defendant appeals. Affirmed. Argued before MITCHELL, C. J., and FELL, MESTREZAT, POTTER, and ELKIN, JJ.

J. B. Hannum, for appellant.

A. B. Geary, for appellees.

ELKIN, J. The assignments of error raise three questions: First, was there sufficient evidence to go to the jury on the question of the failure to give proper signals before approaching the crossing? Second, even if it be conceded that the signals were not given, was the failure so to do the proximate cause of the accident? and, third, was the boy making such an unlawful use of the crossing as to relieve defendant company from its duty to give proper signals? The appellant relies on what is termed the negative testimony of the witnesses for appellees to support its contention that

*For the authorities in this series on the question of the comparative weight of affirmative and negative testimony as to whether or not crossing signals were given, see foot-notes appended to Keiser v. Lehigh Valley R. Co. (Pa.), 20 R. R. R. 303, 43 Am. & Eng. R. Cas., N. S., 303; Baltimore & O. R. Co. v. Baldwin (C. C. A.), 21 R. R. R. 380, 44 Am. & Eng. R. Cas., N. S., 380; Ives v. Wisconsin Cent. Ry. Co. (Wis.), 20 R. R. R. 393, 43 Am. & Eng. R. Cas., N. S., 393.

Winterbottom v. Philadelphia, etc., R. Co

there was not sufficient evidence of negligence to go to the jury. Hauser v. Central Railroad of New Jersey, 147 Pa. 440, 23 Atl. 766; Urias v. Pennsylvania Railroad Company, 152 Pa. 326, 25 Atl. 566; Knox v. P. & R. Ry. Co., 202 Pa. 504, 52 Atl. 90, and Keiser v. Railroad Company, 212 Pa. 409, 61 Atl. 903, 108 Am. St. Rep. 872, are relied on to support this position. It is true the court has said in these and other cases that, where the negative testimony produced by plaintiff only amounts to a scintilla, it cannot prevail over the positive and conclusive testimony of a large number of witnesses which clearly establishes the fact that the signals were given. In such cases it is the duty of the court to say as a matter of law that the negative testimony produced by the plaintiff is not sufficient to overcome the positive and conclusive testimony of the defendant bearing on this question. It may also be conceded that in some of the cases it is difficult to determine whether it is a question of law for the court or of fact for the jury. The opportunity of the witness for hearing the signals, the place where he was located at the time, whether he was on the lookout for the train and listening for the signals, are all important matters to be taken into consideration by the trial judge when he is called on to pass upon this question. In every such case it is possible to produce witnesses who can very truthfully testify that they did not hear the signals. Such testimony is of very little value unless the witnesses were in such a location as would make it highly improbable that the siguals could have been given without being heard by them. In the case at bar, however, the appellees produced a witness who was seated at a window in her house, near the railroad station, waiting for a friend who was coming on the train, for which she was on the lookout, and who was listening for the signals. Another witness was produced who was standing at the station waiting for the train and listening for the signals. Both of these witnesses testified positively that they did not hear the signals. There were other witnesses to the same effect. Under all the circumstances we think it was a question for the jury to determine. We cannot say under the facts of this case that the failure to give the signals was not the proximate cause of the accident. The boy made the best effort he could to get out of his peril, even without hearing the signals, and we cannot say as a matter of law that he could not have entirely extricated himself if he had heard the signals in due time. This was a question for the jury.

On the question of the boy making an unlawful use of the crossing, the court below said that the evidence did not disclose clearly just what he was doing there, and the facts were not sufficient to justify him in saying as a matter of law that the boy was a trespasser. We do not feel like disturbing the ruling of the court in this respect under the facts of this case.

Judgment affirmed.

SCHWARZ V. DELAWARE, L. & W. R. Co.

(Supreme Court of Pennsylvania, May 13, 1907.)

[67 Atl. Rep. 213.]

Railroads Accident at Crossing-Presumption.* The presumption that a person killed at a railroad crossing looked and listened is not overcome by testimony of the engineer of the train that he did not see him stop, where his evidence shows he was not in position to see whether he did or not.

Same-Failure to Signal.+-Where a witness testifies that he was near a railroad crossing and was listening for an approaching train, and that he heard no whistle, his testimony, if believed, is proof that no whistle was sounded.

Same Instructions.‡-In an action to recover for death of plaintiff's intestate at a railroad crossing, where there was nothing to show that a signal whistle could not have been heard, or that if deceased had looked and listened he would not have escaped injury, it was error to charge that the jury could find for plaintiff simply because the train was run at a high rate of speed.

Same.§-Where one about to cross a railroad track in an open country looks and listens, and no train is heard, and no signal given, the railroad company is liable if it runs its trains at such a reckless rate of speed as would injure an unwarned traveler.

Appeal from Court of Common Pleas, Monroe County.

Action by Richard F. Schwarz against the Delaware, Lackawanna & Western Railroad Company. Judgment for plaintiff. Defendant appeals. Reversed.

See 61 Atl. 255.

At the trial defendant presented the following points:

"(1) Under all the evidence in this case, the verdict of the jury

*For the authorities in this series on the subject of the sufficiency of evidence to rebut the presumption of due care on the part of a person killed by a train or car, see foot-notes appended to Porter v. Missouri Pac. Ry. Co. (Mo.), 22 R. R, R. 342, 45 Am. & Eng. R. Cas., N. S., 342; Wilson v. Lake Shore, etc., Ry. Co. (Mich.), 21 R. R. R. 356, 44 Am. & Eng. R. Cas., N. S., 356.

For the authorities in this series on the subject of the weight of negative testimony as to whether or not crossing signals were given, see foot-notes appended to Hoffard v. Illinois Cent. Ry. Co. (Iowa), 23 R. R. R. 236, 46 Am. & Eng. R. Cas., N. S., 236.

For the authorities in this series on the subject of the combined effect of contributory negligence and negligence with respect to the speed of train or car at crossing, see foot-notes appended to Illinois Cent. R. Co. v. Arkeman (C. C. A.), 21 R. R. R. 76, 44 Am. & Eng. R. Cas., N. S., 76.

§For the authorities in this series on the subject of the combined effect of excessive or fast speed of trains or cars and failure to give crossing signals, see Norris v. New York, etc., R. Co. (Conn.), 22 R. R. R. 17, 45 Am. & Eng. R. Cas., N. S., 17 (negligence in running train over crossing at 40 miles an hour without giving crossing sig

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