Fisher v. Monongahela C. Ry. Co.

[To be reported.] 1. A motion for a compulsory nonsuit is, in effect, a demurrer to the plaintiff’s evidence, which evidence must therefore be accepted as true, and every reasonable inference of fact which a jury might draw from it in the plaintiff’s favor, must be drawn from it by the court, in passing upon the motion. 2. What constitutes negligence, in a given case, is a question for the jury whenever material facts are disputed, or even in doubt, or inferences of fact are to be drawn from the testimony; and it is then the exclusive province of the jury to determine the facts and apply to them the law declared by the court. 3. The line of demarcation in this respect between the duty of the court and that of the jury should be carefully guarded; and, while the court should never permit the jury to disregard or evade its instructions, it should be equally careful not to take upon itself the determination of facts about which there may be any question. (a) The plaintiff was knocked down and injured at a railroad crossing by a train of a dozen freight cars backing over the crossing ¡*1 a considerable rate of speed. No warning of its approach was given by whistle, bell, or otherwise. There was neither person nor light upon the rear end car. (b) The accident occurred early in the morning, while it was yet quite dark, and a recent fall of snow tended to deaden the sound of the approaching train. In crossing the railroad the plaintiff first encountered a siding. He testified that before stepping upon it, he stopped, looked and listened, but neither saw nor heard the train. (e) Twenty-three feet beyond the siding he reached the main track, between which and the siding, and on each side of the crossing, were piles of metal obstructing the view, their edges being three feet from the rail of the main track. Almost immediately after taking the first step upon the main track the train struck the plaintiff: 4. Upon such evidence, it is a manifest invasion, of the constitutional province of the jury for a trial judge to say there is no evidence of negligence on the part of the railroad company, or that the plaintiff was guilty of contributory negligence, both of these questions being for the jury on the evidence.

APPEAL BY PLAINTIFF FBOM THE COHBT OF COMMON PLEAS NO. 1 OF ALLEGHENY COUNTY. No. 234 October Term 1889, Sup. Ct.; court below, No. 306 September Term 1888, C. P. No. 1. On July 11, 1888, J. P. Fisher brought trespass against the Monongahela Connecting Railway Company, to recover damages for personal injuries alleged to have been sustained by him in consequence of negligence of the defendant. The defendant’s plea was not guilty. At the trial on February 25,1889, before Stowe, P. J., the following facts were shown on the part of the plaintiff: The defendant’s railway passes through the yard of the American Iron Works in the city of Pittsburgh. On the south side of its main track, is a siding which gradually diverges therefrom. About 125 feet west from the point at which the siding leaves the main track, both tracks are crossed by a wheelbarrow way, which is planked and used in transporting metal between different departments of the iron works, and is also used as a passage way by large numbers of the workmen there employed, while going to and from their work and passing between different parts of the premises. At the time of the accident, a quantity of pig iron was piled on each side of the barrow way and between the siding and the main track. The opening between the piles at the barrow way was between eight and twelve feet wide. The pile occupying the triangle formed by the main track, the siding and the barrow way, was higher than a man’s head, and its northern edge was at a distance of about three feet from the southern rail of the main track. The distance between the siding and the main track at the crossing of the barrow way was 23.4 feet. The plaintiff was employed at the American Iron Works, and was familiar with the ground surrounding the intersection of the barrow way with the defendant’s tracks. On the morning of December 27, 1888, about seven o’clock, while on his way to his work, he was proceeding along the barrow way. When he came close to the siding he encountered a man wheeling metal, who called to him to “ look out.” The plaintiff then stepped aside to let him pass, and before starting again looked up and down the railroad track, but neither saw nor heard any train approaching. Crossing the siding, he proceeded between the piles of metal, and, without again stopping or looking along the track, attempted to cross the main track. Just as he had set one foot across the southern rail, he heard some one calling “ Look out! ” He stopped, but, before he could step back, a train of twelve to fifteen freight cars that were being backed along the main track, coming from the east, struck him, inflicting upon him severe injuries. The plaintiff testified that the morning was very dark and he could not see along the track more than fifteen or twenty feet, and did not see the train approaching; that the siding was straight from the crossing down to its junction with the main track, and if there had been light enough he could have seen this train when he stopped at the siding and looked along the track; that there was snow on the rails, which deadened the sound of the wheels; that neither bell nor whistle was sounded, theré was no signal of any kind given to warn a person that there were any cars in the yard, and there was no flagman or watchman stationed at the crossing. Other witnesses for the plaintiff testified respecting the character of the morning on which, the plaintiff was injured, one of them saying it was rather dark, and another stating that it was “ just beginning to turn the break of the day, just about seven o’clock,” and that there was light enough to see 50 or 100 feet. John M. Triplett, a witness for the plaintiff, testified on cross-examination, that a man standing in the space between the piles of metal, three feet away from the defendant’s main track, could by turning his head to the right see down that track, in the direction the train came from, at least 40 feet. Thomas Harrington testified that since the accident a man had been stationed at the crossing to warn persons of approaching trains. At the close of’ the plaintiff’s testimony in chief, the defendant’s counsel moved that the court enter a judgment of non-suit, for the reasons: (1) That no negligence had been shown on the part of the defendant; (2) that the plaintiff’s own case showed that the accident was caused by contributory negligence on the plaintiff’s part. Judgment of nonsuit was entered as moved for, with leave, etc., and subsequently, on argument of a rule to show cause why the nonsuit should not be lifted, the rule was discharged. Thereupon the plaintiff took this appeal, assigning as error the entry of the judgment of nonsuit and the order discharging the rule to show cause why the same should not be lifted.