Philadelphia, Wilmington & Baltimore Railroad v. Stinger

1. Negligence is the absence of care, according to the circumstances. 2. It is the duty of an engineer approaching a highway, if danger is to ■ be apprehended, to give warning by sounding the whistle, or other sufficient' alarm ; the failure to do so is negligence per se, to be determined by the court. 3. The court is to decide the question of negligence, where the precise 'duty is determinate and the same under all circumstances. 4. A wanton, unnecessary sounding of the whistle is negligence. 5. A railroad company having a chartered right to propel their cara by steam, are not responsible for injuries resulting from the proper use of such agency. 6. Whether alarming a horse and causing an accident by a rapidly-moving train, or sounding a whistle, will make the company liable for damages, depends upon whether it was from want of proper care in those in charge of the train. 7. What would be due care in running a train through a sparsely settled rural district might be negligence in approaching a large city. 8. A train was passing through a city on a railroad which had a number of short curves, so that persons could see the train but for a short distance; it was crossed by several streets and passed over a river on a drawbridge; the rule of the company required that the whistle should be sounded about a certain point, to warn the bridge-tender and persons about to cross at other streets. Held, the use of the whistle at that point in the ordinary manner was not negligence. 9. If the whistle had not been sounded at such point and one had been injured by reason of the omission, it would have been negligence per se. 10. One driving an unbroken or vicious horse, or one easily frightened by a locomotive, along a public road running side by side with a railroad, does so at his own peril; the right of the company to move their trains on their road is as high as that of the individual to use the public road. 11. Rrankford & Bristol Turnpike Co. v. Philadelphia & Trenton Railroad Co., 4 P. R. Smith 345, adopted.

Error to the District Court of Philadelphia: Of July Term 1873, No. 9. This was an action on the case, brought to September Term 1871, of the court below, by Daniel Stinger against the Philadelphia, Wilmington and Baltimore Railroad Company. The declaration was, that the plaintiff was driving his horse and wagon in which he was riding, on Gray’s Ferry avenue in the city of Philadelphia, alongside of which the defendant’s railroad was located; that the defendant’s servant, in propelling a locomotive on their railroad, “ made such great noise and shrieks by blowing a whistle connected with the locomotive, that by and through the carelessness, negligence and improper conduct of the defendants, by their said servant in that behalf, the plaintiff’s horse was startled and scared, became unmanageable and ran away, and plaintiff was thrown from his wagon under the wheels thereof, and was run over by them was greatly injured, &c.; was hindered from attending to his lousiness, and had to expend a large sum of money in endeavoring to be healed, &c. The track of defendant’s road from their depot runs along Washington avenue to a point opposite the United States arsenal, on the west side of the G-ray’s Ferry road, between Twenty-sixth and Twenty-seventh streets; it there turns and runs westwardly, parallel with that road, to the railroad over the Schuylkill river. The road in this space makes a curve at the arsenal, another just east of Twenty-eighth street, a third half a square beyond Thirty-' first street; the curves are so decided that the road can be seen but a short distance beyond them. Between Twenty-eighth street and the river there are four road-crossings over the railroad, one near Thirtieth street, another at Thirtieth street, one at Thirty-second street, one at Newport or Thirty-third street, the bridge being about three squares from Thirty-third street; the bridge and the crossings at Thirty-second and Thirty-third streets cannot he seen until the curve beyond Thirty-first street has been passed. The bridge is a draw-bridge, at each end of which a watchman is stationed to flag the trains, after the whistle has given him notice of their approach. . The rule of the company and custom of the engineers were to ring the bell until the engine had passed beyond the thickly-built parts of the city, and afterwards to use the whistle alone to warn persons about crossing the railroad at the before-mentioned streets, and the watchman at the bridge. The case was tried February 17th 1878, before Lynd, J. The plaintiff testified: “ On the 27th of June 1871, I was returning from market; when opposite the arsenal I stopped to see if any train was coming down the avenue; I thought I could make it home before any engine would come, and kept on; between Thirty and Thirty-first street an engine opened a great blast; it frightened my horse; he started to run away ; I stepped out to get him by the head, and they blew again, and I fell under the wagon between the wheels. It was because the second blast started the horse; if it had not been for the second blast he would have stopped; the engine was going west, the same direction as I was — behind me.” Witness then described the extent of his injuries. On cross-examination, he said: “ The horse had a fashion of turning sharp around, but was quiet when got by the head. * * * I drove the horse daily for two or three months before ; he was always afraid when the whistle blew. I always got notice of the appi’oach of the train, and got out and stood by his head.” Other witnesses of plaintiff who saw the occurrence testified much as the plaintiff had done. One witness said the horse started and ran at the first blast of the whistle, which was at Twenty-eighth street, and seemed to be more frightened than any horse he ever had seen; the second blast was at Thirtieth street. Another testified that he saw Stinger tumbling out after the first blast, hut could not say how many whistles he heard. Another witness testified that the horse was a young horse and afraid of a locomotive. For the defendants, the engineer of the train testified that he blew the whistle first at Twentieth street, then at Thirtieth street; it was blown but once after passing Twenty-eighth street. The rules were to blow at Twentieth and Thirtieth streets; when he saw a space where there were no carriages he blew a short whistle, just east of Thirtieth street; he blew when he came to an opening, as was the practice; it was a signal whistle ; he had not blown twice. On cross-examination, the witness said that they did not at the time of the trial blow a whistle at Thirtieth street. Several of the hands on the train testified that the whistle was blown but once after leaving Twentieth street; the custom was to blow a whistle near Thirtieth street, “ using judgment in regard to carriages.” Another witness testified that at the time of the accident there were but few houses in that locality ; since that time the number had much increased; after this increase an order was issued by the defendants that the whistle should not be blown between Twenty-eighth street and the bridge; and the bell only was rung; it is important to give a signal to the bridge; ringing a bell is very inadequate for that; the bridge is at Thirty-sixth street; the whistling was stopped because the traffic has increased. The following are points of the defendants, and their answers by the court:— 2. The defendants, being authorized to use steam-engines upon their railroad alongside Gray’s Ferry road, in the city of Philadelphia, for the purpose of moving their trains, are not responsible for accidents arising from fright to horses occasioned by the noises incident to the employment of such engines. Answer : “ Just as that point is worded I cannot affirm it; with a slight alteration I could, in this way: That the defendants being authorized to use steam-engines upon their railroad alongside Gray’s Ferry road, in the city of Philadelphia, for the purpose of moving their trains, are not responsible for accidents arising from fright to horses, occasioned by noises necessarily incident to the careful employment of such engines. “You will consider if the blowing of a whistle is a necessary incident of the movement of trains; I leave it to you to say as a question of fact. I do not choose to treat it as a matter of law. You will consider whether the train could have been moved without a steam-whistle, as a matter of fact; the best evidence of that is, that some time since this occurrence, the company has discontinued whistling at that place. Noises must be necessarily incident to the careful movement of trains, but trains make different noises. A long train moving at a rapid rate of speed makes noise if no whistle be used. Still, if it were alleged that a train was moved with great rapidity, more care would be required, and it may well be, if movement of a train rapidly makes much noise, and a horse was started by the noise, that it would be negligent if the train made more noise'than a careful use of the train required.” 3. Unless the evidence shows that the defendants’ servants, in charge of the engine running upon their track alongside of Gray’s Ferry road, were exercising their right to use and move such engine in an extraordinary way, and without due and reasonable care, no negligence can be imputed to them in this respect, and the defendants are not liable for the accident which happened to the plaintiff. Answer: “I affirm that just as it is written, but it still comes back to the starting-point, whether the blowing of the whistle there was not using the engine in an extraordinary way.” 4. There is no evidence in the case of want of ordinary care on the part of the defendants, and the verdict should, therefore, be for the defendants. Answer: “I-decline so to charge you; the question will be for you.” 6. If the jury believe that the plaintiff drove a horse which, according to his own testimony, became easily frightened at locomotives, it was negligence on his part to drive such horse alongside Gray’s Ferry road in close proximity to the defendants’ railroad; and if the horse, while being so driven, became frightened by an engine,' he cannot recover. Answer: “ I decline so to charge you. The law will not banish horses from highways because locomotives cross or traverse them. The effect of a man having a horse liable to fright from a locomotive would be, to require him to use a greater degree of care. It would impose a duty upon him not to bring the horse in contact with an engine unnecessarily; but here there was no other road. The law does not compel a man to go out of his way a mile or more, even to avoid such a danger. He must be more watchful. You must remember what I said about contributory negligence in the management of his own horse. If he approach a railroad with such a horse, he ought to look out for trains. If he saw a train, it would impose the duty on him to keep out of the wayr or, if overtaken on the route, and he should find that the locomotive was upon him, he should get out and hold the horse by his head; but it is not contributory negligence in itself to go there with such a horse. It did impose a greater degree of caution.” The court charged also: “ Negligence, among other things, consists in doing that which a man of ordinary caution would not do under the circumstances. I need not further define negligence with a view to your conclusions in this case. [The question in this case is, whether this engineer, in sounding the steam-whistle, under the circumstances, did that which a man of ordinary prudence and consideration for his fellows would not have done.] You will take into view all the circumstances; what a steam-whistle is, what a noise it makes, the alleged nearness of the wagon and [the alleged excited condition of the horse. If the horse was really running away, and the.locomotive was overhauling it, and within fifty feet, and then blew, you will consider if the engineer did what a prudent and careful man would have done when he blew the whistle.] If he did, your verdict should be for the defendants. If an ordinarily careful man would not have done it, your verdict should be for the plaintiff, unless you find the plaintiff guilty of negligence. The plaintiff, to recover, must show that not only the act of the engineer was negligent, assuming his act occasioned the injury, but also that he himself was not negligent in bringing his horse where he was and in his attempts to control him. The law does not permit one to recover if he has been negligent himself. You will consider if the plaintiff, when he jumped out, did as an ordinarily cautious man would have done ; whether a careful man would have stuck to the wagon or not. He says he jumped off voluntarily. If he was knocked off there would be no ground to charge him with negligence; otherwise, if he voluntarily jumped off. The law imposes the obligation to use judgment in such a case; you will, therefore, consider if plaintiff was guilty of negligence. If you find that, no matter how negligent defendants were, your verdict should be for the defendants. * * * The verdict was for the plaintiff for $1600. The defendants took a writ of error; they assigned for error: — ■ I, 2. The parts of the charge in brackets. 3-6. The answers to defendants’ 2d, 3d, 4th and 6th points, respectively.