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Vol. II.]

PENNSYLVANIA RAILROAD Co. v. WEBER.

[No. 8.

five times; from the second crossing, where Weber was killed, to the next above, is 184 rods.

The plaintiffs gave much other evidence for the purpose of showing that the whistle was not sounded or other warning given before the train approached the crossing; also that the view of the railroad for a considerable distance was hidden by underbrush and trees growing on the banks of the railroad.

For the defendants, E. B. Taylor, who was a civil engineer in the employ of the defendants, testified that, standing in the middle of the county road, at a distance of 20 feet from the south rail of the south track, that track could be seen at a distance of 210 feet west from the crossing; the targets on the cross-switches could be seen 1,087 feet from the crossing; at the whistling-post, 1,245 feet from the crossing, the head-light of an engine could be seen; the head-light would be about 10 feet above the rail; in a wagon, with the horse's head 2 feet from the south rail, an engine could be seen 3,911 feet from the crossing; standing in a wagon on the summit of the county road, 117 feet back from the track at the crossing, the engine could be seen at the whistling-post, and the whistle could be distinctly heard there. The first crossing from Marysville to the crossing where Weber was killed, measuring on the railroad, is 1,286 feet; from the first crossing from Marysville westwardly the road is straight for about 4,000 feet. A whistle at Cove Station could be heard at the crossing where the accident occurred; the ringing of a good bell at Cove Station could be heard there.

S. H. Free, the engineer of the locomotive by which Weber was killed, testified that the train left Altoona on time in the morning of the day of the accident; ran its usual and schedule speed (23 7-10ths miles per hour); was on time at all the stations. The day was clear; the machinery was all in good order; the track good, and everything right; the fireman rang the bell at the two upper crossings after leaving Cove Station; the bell was good; at the whistling-post above the crossing where Weber was killed, witness blew four blasts of the whistle for that crossing; "about half way from that to the crossing below I saw the horse coming out on the road towards the track; I blew the whistle again some four or five blasts, sharp and quick, and a very short time after that the horse and wagon stopped on the track; as soon as it stopped I pulled on the patent brake and reversed the engine; the engine was in that position until it struck the wagon." When he first saw the horse's head it was within a few feet of the track. When the engine struck Weber, the horse stood with his hind feet just across the north rail of the south track; Weber was sitting in the wagon nearer the front than the middle; he had hold of the lines pulling back, as if he was trying to back his horse; the front wheels of the wagon stood near the north rail of the south track; the shafts stood up alongside of the horse's neck.

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H. Robinson, the fireman, testified much as the engineer; also that he rang the bell at the two upper crossings. He was sweeping the foot-board when the engineer sounded the alarm-whistle; he then looked on his side of the engine and saw the horse; "I then saw a man seated in the wagon, near the middle as near as I could tell by the appearance; the horse was stopped; it appeared to me he was trying to back the horse off the road,

Vol. II.]

PENNSYLVANIA RAILROAD Co. v. WEBER.

[No. 8.

as the shafts were up alongside the horse's neck, and the wagon had run on him; he remained in that position until we struck him." The engine had been reversed, the brake applied, and the speed of the engine had been slackened before he was struck.

The defendants gave in evidence photographs of the road, of the ground where the accident occurred, the vicinity, &c., &c. They gave evidence also that the sight of the road was not obstructed by underbrush, and much testimony in answer to the plaintiffs' case generally.

The plaintiffs' second point and the answer were:

Point: "As the uncontradicted evidence in this case shows that George H. Weber did not stop before arriving on the track, the verdict must be for the defendants."

And

Answer: "We cannot affirm this point, but say again that the first presumption of law is that he did stop, look, and listen. But this presumption will give way to the actual truth, that he did not do so. we again say, that if the evidence satisfies you that had Weber stopped, looked, and listened, he would not have been injured, then he was guilty of negligence, &c.; you should find for the defendants, even should you find that the engineer gave no warning of the approach of this train.' The court charged:

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"First, then, was the death of Weber occasioned by the negligence, carelessness, and impropriety of the Pennsylvania Railroad Company? That he was killed in the manner here mentioned there can be no denial or doubt, but whether through the company's negligence or his own is the question. The company, on the day herein designated, were running their engine and cars on their own road, on the proper track of the said road, and at or about the usual time of day. They had the right, beyond all question, to use their road, with their engine and cars, their engineers, conductors and servants, to carry passengers or freight, as they should deem right, subject only to the legal principles which govern and control the exercise of such rights.

"Weber, with his horse and wagon, on the same day and time, was travelling on a common highway, used and occupied indiscriminately by every person whose business or pleasure called him along it. He too had an unquestioned right to use this highway for his own purposes, and at such times as suited his pleasure or convenience, subject, at the same time, to the understood rights of others. The company, with their engines and cars, and the baker, with his horse and wagon, had their respective rights at this crossing, of such character that they should not molest or interfere the one with the other.

"These reciprocal rights created corresponding duties. The railroad company, notwithstanding their right to travel along and over their own road, were bound to exercise due care and diligence in the use thereof; and Weber, although on a road whereon he had a right to travel, was also under the obligation of duty so to exercise his right as not to interfere with the rights of others. With these rights and duties respectively they met at the crossing, and the fatal accident occurred. Weber was on the track of the railroad, and the engine and train passed along, breaking up the wagon and horse and killing him. Where was the negligence which occasioned this fatal collision? Was there any on either side? Was it

Vol. II.]

PENNSYLVANIA RAILROAD Co. v. WEBER.

[No. 8.

one of those inevitable, unavoidable accidents, regarded in law as the act of God, with no one to blame? In the absence of all proof showing negligence, the law presumes it to be unavoidable-that is, such as no ordinary prudence on the part of both Weber and the company could have guarded against. And this presumption continues to prevail until the proof establishes negligence or carelessness on the part of the company, and the evidence disclosing no negligence or carelessness on the part of Weber, then this balanced condition arising from the presumption that the accident was unavoidable gives way, and the company is shown to be in fault, becomes chargeable with the consequences of its negligence, and the plaintiffs may recover. [But if the evidence shows negligence on the part of Weber in approaching and crossing the track of the defendants' road, and no negligence on the part of the company, then the blame and fault would be Weber's own, and the law would not permit these plaintiffs to recover.] And still again, if the evidence shows that both Weber and the company were guilty of negligence or carelessness in crossing the track, so that both parties were to blame for the accident, the plaintiffs cannot recover, because he would then have contributed to the injury himself, and the law never allows a man to gain by his own wrong..

"Then what is negligence? It has been described as the want of that care which men of common sense and common prudence ordinarily exercise in like employments. This is a fair and plain definition of negligence, and it is important that you carry it with you in your examination of the testimony. To determine whether there was negligence on either side, and whether the defendants were negligent, a brief view of the evidence becomes necessary.

"First, then, the accident occurred in open day, without the excuse of darkness. The public road runs close alongside of the railroad; it could run nowhere else, owing to the bluff of the mountain and the Susquehanna River, and in a distance, of four miles crosses the track of the railroad five times at least. Some places it runs below the level of the railroad and some places above. Where this accident occurred the road (public), just below the crossing, runs above the level of the railroad track about ten and a half feet, and then advancing westward (and that was the direction in which Weber was moving), the road descends at about 6 degrees and comes to the level of the railroad at the crossing, 25 feet before reaching the crossing itself; and after passing the crossing the public road falls below the level of the railroad; but this is not important, as Weber was killed at the crossing. Then from this fatal crossing looking westward, at a distance of 1,230 feet, stands the whistling-post, and at this post, or in sufficient time, it is the duty of the engineer to sound the whistle. Then, at 110 feet from this fatal crossing, on the hillside of the railroad track and on the same side of said track that the county road is on, below or eastward of the crossing, commences a retaining stone wall which runs westward a distance of 1,117 feet, and is 7 feet high from the bottom of the ditch, which would make it 6 feet above the rail of the track, and the south rail is 6 feet from this retaining wall. Then add the fact that the railroad from this crossing westward is so nearly straight that a man standing on the centre of this crossing can see it westward a distance of nearly one mile, and the further fact, if believed, that in July or August,

Vol. II.]

PENNSYLVANIA RAILROAD Co. v. WEber.

[No. 8.

1869, the brush and weeds growing on the slop of the bank were cut back 20 feet from this stone wall, and you have the conditions under which Weber approached this crossing on his way from Marysville to Duncannon on the 28th August, 1869, and was killed by a train running at from 15 to 20 miles per hour. Now let us define for you at this point what precaution and care the law requires at the hands of a traveller when he is approaching a railroad crossing or any dangerous point in the way he is journeying. In North Pennsylvania Railroad Co. v. Heileman, 13 Wright, 60; Hanover Railroad Co. v. Coyle, 5 P. F. Smith, 396, and others, it is distinctly announced that at the intersection of a railroad with a common road there are concurrent rights, and neither the traveller on the highway nor the company has an exclusive right of passage.'

"2. As the movement of railroads is necessarily so rapid, and the consequences of collisions so disastrous, it is the duty of the traveller on the highway to look out, when approaching its intersection with a railroad, for trains and approaching engines, to stop and listen; and if he fails to take this precaution, he is guilty of negligence, and cannot recover for injuries sustained by a train coming in collision with him. Precaution, looking out for danger, is therefore a duty. Not looking for a coming train is not merely an imperfect performance of duty, it is an entire failure of performance, and negligence in itself. And in Hanover Railroad Co. v. Coyle, 5 P. F. Smith, 396, it was wisely held by the supreme court that a peddler approaching a railroad at a point in a town where he had often crossed muffled in his coat within the covered top of his wagon, taking no notice of the railroad, and driving slowly upon the track without stopping or looking out, was guilty of negligence.

"[Now then, it becomes important for you to inquire, what were Weber's opportunities to see the train approaching which struck and destroyed him. Had he stopped, looked, and listened, because if the evidence satisfies you that, if he had stopped, looked, and listened, the accident would have been avoided, then you cannot find damages.] Such failure on his part would be negligence, and there can be no recovery by the plaintiffs. Then what were Weber's opportunities to see and hear this train? It is an important fact, that he was moving westward, while the train was moving eastward-it was coming towards him—and thus his chances to see and hear were much better than if the train had been approaching in his rear. The road or ground over which Weber must necessarily have passed, at a distance of about 110 feet from the crossing, was undoubtedly some 11 feet above the level of the railroad bed; his wagon would elevate him still higher; the slope of the hillside west of the crossing, along and over which he must look for the approaching train, was about 9 feet above the rails of the track, and if John Whitzel is believed, the bushes along the slope, back of the stone wall, were mowed off in July or August in same year; and George W. King, John Whitzel and others, if correct, saw the smoke-stack and engine as low down as the head-lights from the summit of the high ground aforesaid, over which, as before observed, Weber must have passed-so far up the road as the whistling-post-1,230 feet from crossing. And it is further established by actual experiment, that by standing one foot from the track, and even 20 feet back from it, an engine was visible as far up as the whistling-post.

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Vol. II.]

PENNSYLVANIA RAILROAD Co. v. Weber.

[No. 8.

a distance of over 1,200 feet. [Add to this the fact that Weber was accustomed to travelling this road, and then determine whether any ordinarily prudent man, exercising reasonable watchfulness and care, would have been able, by stopping, listening, and looking, to have seen this train approaching, and avoided the calamity which befell Weber; and if he could, and you believe that Weber neither stopped, listened, nor looked, but, on the contrary, advanced recklessly and carelessly upon this crossing, then, whether the whistle was blown or sounded by the employees of the company on the train or not, he (Weber) was clearly guilty of negligence, and these plaintiffs cannot recover.] In determining this point you will look at all the circumstances of the case, and if you find that Weber was negligent, careless and reckless in approaching this crossing, then you need go no further, but find for the defendants.

"It is testified that from top of hill east of crossing, in county road, 117 feet from south rail of south track of railroad, at the fatal crossing, the view of a man standing on this summit reaches westward up the railroad to the curve, a distance of over 3,900 feet to near four fifths of a mile-over three fourths of a mile; then, if Weber, when crossing this hill, and when on its summit, or at any point along the summit, had looked as he in law was bound to do, he could not have failed to see any approaching train for the distance of over three fourths of a mile in front of him and above the crossing; and still further, from the summit of this hill, it was only 117 feet down the hill, around the curve of county road, until he would reach the south rail of south track of railroad, and if, when he had passed over 100 feet of this 117 feet, and within 20 feet of the said south rail, and it would only have taken him 17 seconds of time, moving at the rate of four miles per hour, to have gone over these 100 feet, and he had then stopped and looked, as in law he was bound to do, he could have seen an engine at the bone factory, or whistling-post, and along from there to crossing, a distance of over 1,200 feet. Now do you believe, under this state of facts, and the facts are not contradicted, that any ordinarily prudent man would have failed to see and avoid the calamity which befell Weber? Can it be possible that, had he looked, he would have been injured at all? You are not at liberty, under the oaths you have taken, to shut your eyes to this proof. If you believe this, it is binding on you, and you must give the fact full play in determining the issue. In the midst of vague and loose observations, made by men called as witnesses to prove what can be seen and what cannot be seen from the summit of the hill in the county road, and near it, we turn with sensations of relief to one of the views taken by an artist, with a camera, an artificial but unerring eye, and which is utterly incapable of misrepresenting, either by mistake or design, and you will there see that by a view taken on the side of the county road, on summit of hill, east of crossing over which Weber passed, at three feet from the ground, the eye can see up the railroad track as far as the cross switches, a distance of over 1,245 feet from the crossing. There can be no mistake about this testimony, and it conclusively establishes the significant fact that this crossing affords advantages to the traveller for looking west in order to observe trains. Then how can it be truthfully said that this is a dangerous crossingwith its approaches commanding at least 1,300 feet of the track itself, and

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