Bonnell v. Delaware, Lackawanna & Western Railroad

The opinion of the court was delivered by Scudder, J.

The main reason urged by the defendants’ counsel for setting aside this verdict, is that, from the undisputed facts in the case, the plaintiff was guilty of contributory negligence, and that the court erred, in the first instance, in refusing to non-suit the plaintiff for this cause, and after-wards in not instructing the jury to find a verdict for the ■defendants.

*192 In actions for personal injuries, the court has often non-suited the plaintiff, where it clearly appeared, from his own evidence, that he was guilty of negligence which contributed to the injury he has sustained, in such way that if he had not been guilty of the negligence, he would have received no injury by that of the defendant. Thus, if approaching a known danger, he be devoid of all care, by his own admission, or, seeing and knowing the risk, he experiment and take the hazard of injury; if he go upon a railroad track, taken there by a team in his own care, when he is asleep, or stupefied by drink, or in mere vacuity of mind; or if, seeing .a train approaching, he should urge his horses to pass in front before it may reach him—such, gross carelessness and want of ordinary caution are a voluntary courting of danger, and he has no right to be heard when asking redress for self-inflicted injuries. These are the kind of cases in which the plaintiff has suffered a non-suit, upon his own evidence. Pennsylvania R. R. Co. v. Matthews, 7 Vroom 531 ; Runyon v. Central R. R. Co., 1 Dutcher 556 ; Harper v. Erie Railway Co., 3 Vroom 88.

So, where such want of ordinary care, on the part of the plaintiff, is apparent, when all the evidence is given on both sides, the court will interpose, after verdict in his favor, and set it aside. Moore v. Central R. R. Co., 4 Zab. 268; Telfer v. Northern R. R. Co., 1 Vroom 188 .

But, as it was said in N. J. Express Co. v. Nichols, 3 Vroom 166 , where the evidence on this point is doubtful, and the inferences to be drawn from the facts are uncertain, it is the province of the jury to decide, and the case must be strong which will justify a reversal for denying a non-suit, and submitting the question of negligence to the jury. Where there are doubtful and qualifying circumstances, the question of negligence or want of proper care is a matter of ordinary observation and experience of the conduct of men, and as such, must be left to the jury, as being within their legal province. The law has said, in these cases, that the plaintiff, shall have the judgment of twelve men, and not the opinion *193 of one man. N. J. R. R. and Trans. Co. ads. West, 3 Vroom 91 ; Weber v. N. Y. Central R. R. Co., 58 N. Y. 451 ; Ernst v. Hudson River R. R. Co., 35 N. Y. 9 ; S. C., 39 N. Y. 61 ; Thurber v. Harlem R. R. Co., 60 N. Y. 326 ; West Chester R. R. Co. v. McElwee, 67 Penn. St. 311; Crissey v. Hestonville R. R. Co., 75 Penn. St. 83; French v. Taunton R. R. Co., 116 Mass. 537 ; Craig v. N. Y. & N. H. R. R. Co., 118 Mass. 431 ; Carland v. Young, 119 Mass. 150; Sher. & Redf. on Neg., § 31, h; Wharton on Neg., § 385.

The fact upon which the defendants mainly relied, in this-case, was, that the plaintiff did not look up the track as he approached, and before he attempted to cross it. But the plaintiff had looked when about one hundred yards from the crossing, and saw, as he supposed, a train going in the opposite direction, with the rear towards him. He was not required, by any legal rule, to look continually until he crossed the track. A man of prudence might have received a fixed impression, from the appearance of the train, that it was-going away from the station. Having that belief, his further attention may have been called off by the actions of the men near the station, who were gesticulating, which he misunderstood. The track was single, and but few trains passed during the day. If there had been several tracks, and trains passing frequently, the case against him would be stronger.

He saw Faneher’s wagon crossing just before him, and this circumstance was likely to confirm his belief that there was no train near.

It was for the jury to weigh all these facts, and say whether his mistake and consequent feeling of security were-unreasonable, and manifested a want of proper care. His conduct might not be deemed negligent, if, in connection with these circumstances misleading him, the jury believed that the defendants' agents were running the train backward,, quietly, without any alarm by bell or whistle, and at an unusual rate of speed. There was much testimony to that effect. Although it was said that he was warned by the men near *194 the station, yet these men were not in the employ of the company. It was no part of their business to .look after trains, or persons approaching the station; nor does it appear that he heard any words they uttered, or recognized the gestures they made, as warnings to him. He says he did not understand them, and these witnesses all say that he did not ¡appear to apprehend their meaning. He may have understood them as beckonings to come • on, or they may have merely confused him, and made him inattentive. In some of the details, these facts are similar to those in Ernst v. Hudson River R. R. Co., where there were warnings given, •which were misunderstood, and where, after several arguments upon conflicting rulings, there was a judgment for the plaintiff.

There were inferences to be drawn from all the facts of this case, upon the question of contributory negligence, which were proper for a jury.

The case is a very close one upon the facts, and, although it may be doubtful whether the conclusion is correct, yet the facts are not so clear, nor the jury so manifestly mistaken in their finding, that we feel constrained to set aside théir verdict for this cause.

The amount of damages given is $3980. This sum .seems large, but we cannot say it is too much, in the case of .a man but twenty-eight years of age, who has suffered much pain, and is shattered in body and mind, so that he is permanently disabled, in the opinion of physicians and others.

The rule to show cause should be discharged, and a judgment entered for the plaintiff.