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Vol. II.]

PENNSYLVANIA RAILROAD Co. v. WEBER.

[No. 8.

probably a view of trains for over three fourths of a mile? Now, had Weber stopped and looked, as he was bound to do, is it probable that he would have failed to see this train? This is for you.

"Then, was this view obstructed in 1869 by bushes? Several witnesses for the plaintiffs, Mr. White and Mr. Moore, and perhaps others whom I do not remember, speak vaguely of bushes, but don't say where they were; whereas several witnesses, George W. King, John Whitzel and R. Q. King, prove that these bushes on slope of bank west of crossing have been mowed off year by year for many years, as far back as twenty feet, counting from south rail of south track of railroad, and some of these men say they had this done, and all of them were laboring about this part of the road more or less at the time of the accident. Now, is this evidence more satisfactory than the mere passing observation of men whose business did not call upon them to see and observe?

"Then, as to the character of the witnesses. The law presumes that all witnesses speak the truth. In actions against railroad companies, it is alleged, their employees generally swear for the road; but it is just as true that others, not employees, generally swear about as vigorously against these companies.

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But, if the evidence fails to satisfy you of the carelessness of Weber, then you must go further, and inquire whether the company was negligent of its duty. Now, it was the duty of the company, through its employees conducting this train, to have sounded the whistle at a reasonable distance above this crossing; and there was a whistling-post 1,230 from this crossing; and here it was the duty of the engineer to blow. Did he do it? The evidence on this point is very contradictory. On the side of the defendant, we have Samuel H. Free, the engineer, who swears positively that, when about this whistling-post, he blew several blasts. H. Robinson, the fireman, swears to the same thing; and Andrew C. M'Cully, a gentleman of high integrity, who was on board the train, swears that the usual alarm-whistle was blown at the whistling-post. On the other hand, Isaac Ream, Mary Smith, Michael Foose, Adam Kauffman, Frank Von Flie, Henry Gamber, A. W. Ensminger, Perdits, Isaac Baker, Anna Jones, Mrs. E. Smith, William Sayler, and Robert J. Shearer, who seem to have had opportunities of hearing, and who testify that they heard no whistling as a signal at the crossing. As a general rule, affirmative evidence is more reliable than negative; but you will fully consider the strength of this negative proof - looking at the opportunities these negative witnesses had of hearing; the probabilities of their taking notice of a whistle; and if, on the whole, the force of this evidence outweighs the positive, you will act accordingly. You will, in this connection, however, consider that, where persons are busily engaged in working, talking, or thinking, they often fail to notice the striking of a clock, even in the room in which they may be, and experience teaches us all that the sound of the locomotive whistle is scarcely noticed by persons accustomed to hearing it, or by persons who are not interested in it at the time. The evidence of the negative or non-hearing witnesses would have to be very satisfactory to my mind, before I could permit it to overthrow the positive testimony of three witnesses, or even one reliable witness, who swears they or he did hear; but this is a matter for you to pass upon, and to you we submit it.

Vol. II.]

PENNSYLVANIA RAILROAD Co. v. WEBER.

[No. 8.

"Then, should you find that, in point of fact, the whistle, as an alarm for this crossing, was sounded, we see nothing in the case to take it out of the usual rule of law, that, where the company operating a road such as this, has not been guilty of negligence and there occurs a disaster, it is not responsible. But should you find that the defendant did not blow the alarm-whistle at all, or in such manner as to give sufficient warning; and you should further find that Weber was not guilty of negligence in approaching this crossing, then the defendant is liable; and it will become your duty to assess the damages."

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The verdict was for the plaintiff for $4,166.66.

The defendants took a writ of error, and assigned for error the answer to their second point and the parts of the charge in brackets.

L. W. Hall (with whom was C. I. T. McIntire), for plaintiffs in error. The judge, having conceded that the facts were not contradicted, should have charged that Weber was guilty of negligence. Whether the accident would have been avoided if Weber had stopped, looked, and listened, his failure so to do was the non-performance of a positive duty, precluding the right to recover. The judge so instructed the jury; but destroyed the value of his instruction by the qualification that the evidence must not only satisfy them that he did not stop, look, and listen, but that if he had done so the accident would have been avoided; thus leaving the fact of negligence to the jury on an immaterial point. Penna. Railroad v. Beale, 23 P. F. Smith, 504. Charging that, if Weber was negligent and there was no negligence on the part of the company, would allow the jury to find for plaintiff, if the company was negligent, without regard to his conduct.

C. A. Barnett (with whom was C. H. Smily), for defendants in error. The law presumes that Weber did all that was required of him. Lehigh Valley Railroad v. Hall, 11 P. F. Smith, 361; Penna. Canal Co. v. Bentley, 16 Ib. 30; Allen v. Willard, 7 Ib. 374; Cleveland & P. R. R. v. Rowan, 16 Ib. 393.

Mr. Justice WILLIAMS delivered the opinion of the court, February 1, 1875.

This case was here on a former writ of error, and was reversed for the admission of irrelevant and improper evidence. 22 P. F. Smith, 27. It now comes before us, after a second trial in the court below, for the correction of alleged errors in refusing to charge as requested, and in the instruction given to the jury. The action was brought by the widow and children of George H. Weber, who was killed at a public crossing of the defendant's road, by a passing train, to recover damages for his death. It was unquestionably the decedent's duty, as the court below in effect charged the jury, to stop and look and listen for approaching trains, before attempting to cross the track of defendant's road; and, if he failed to observe this precaution, his failure was not merely evidence of negligence, it was negligence in itself. But it does not follow that he omitted his duty in this respect, because he was killed by a passing train. was it incumbent on the plaintiffs, in order to recover damages for his death, to show affirmatively that, before attempting to cross the track, he did stop and look and listen. The common law presumption is that every one does his duty until the contrary is proved; and, in the absence of all

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Vol. II.]

PENNSYLVANIA RAILROAD Co. v. WEBER.

[No. 8.

evidence on the subject, the presumption is that the decedent observed the precautions which the law prescribes, before he attempted to cross the defendant's road. It is true that, when the plaintiff's own evidence discloses contributory negligence, there can be no recovery; but if it does not, the burden is on the defendant to disprove care; and, in such case, the question of negligence is for the jury. Does, then, the plaintiff's evidence show that the decedent was guilty of contributory negligence in not stopping to look and listen for the train by which he was killed? If so, the court should have given a binding direction to the jury to find for the defendant. But, in the absence of such evidence, it would have been error for the court to withdraw the case from the jury, and determine, as matter of law, that he was guilty of negligence, which contributed to his death. Whether, then, the court should have affirmed the defendant's second point without qualification, depends upon the character of the evidence of which it was predicated. If, as suggested in the point, the uncontradicted evidence in the case shows that the decedent did not stop before driving on the track, then he omitted a plain and positive duty'; and the court should have declared its omission negligence, as a matter of law. But, if there was no direct and positive evidence showing that he did not stop before driving on the track, then the learned judge was clearly right in refusing to withdraw the case from the jury, and in saying, as he did, "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. And we say again, 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, and you should find for the defendant, even should you find that the engineer gave no warning of the approach of the train.' It is apparent, from the answer and from the whole tenor of the charge, that, if the court erred in not giving the instruction prayed for, the error arose from a mistaken view of the evidence, and not from misapprehension of the law. Does the uncontradicted evidence in the case show that the decedent did not stop before driving on the track? We have looked through the record, and have not been able to discover any direct and positive evidence that such was the fact. The decedent was returning in a baker's wagon from Marysville, where he had been to supply his customers with bread, and was seen by the plaintiff's witnesses, who were at work on the railroad, about twelve hundred feet east of the crossing where he was killed. He stopped and sold them some cakes, and then drove on. of the witnesses, Alfred Ensminger, in answer to the question, “What was the next thing that attracted your attention, after the baker started on his way westward?" said, "Well, after a young man had bought the cakes from him, Alfred Priesler, we started right away to work again : I was working with my face eastward, stooping down tamping a tie, and I heard a sharp whistle; I turned around and looked up the road, and I saw the engine strike the wagon and horse." The other witness, P. Deitz, said, "I bought some cakes from him, me and Priesler. After the purchase of the cakes, we went back to work again, and he started on.” In reply to the question, "Where did you next see him?" he said: "Well, I heard a whistle; I looked up; says I, 'there goes the baker,' we just call

One

Vol. II.]

him the baker.

PENNSYLVANIA RAILROAD Co. v. WEBER.

[No. 8.

This whistle was just as the baker was driving on, as near as I can tell. The train and the baker were approaching each other at that time; I did not know that the train was coming until I looked up; I did not hear any but the one whistle." In answer to the question put to him on cross-examination, "Was the horse close to the rail when you saw him?" he said, "I could not say that positively, because I was scared; I could not say how close he was; I could see the horse, though.” On behalf of the defendant, Samuel H. Free, the engineer of the train, testified as follows: "When we got to the end of the stone wall, or near about there, I believe the whistling post stands near the end, I blew the whistle four blasts, for the next crossing below. About half way from that (the whistling-post) 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 they stopped, I pulled the patent brake and reversed the engine; the engine was in that position until it struck the wagon; I suppose the horse's head was within a few feet of the track when I first saw it; when I first saw the horse I was about half way from the whistling-post to the crossing, as near as I can tell; when I struck Weber, the horse stood with his hind feet just across the north rail of the south track, as near as I can tell; Weber was sitting in the wagon, not quite in the middle of the wagon, a little nearer to the front than the middle; when I got close enough to him, I saw he had hold of the lines, pulling back, as though he was trying to back the horse; I think the two front wheels stood near about the north rail of the south track; the shafts stood the same as a horse backing or trying to back, standing up alongside of his neck." Henry Robinson, the fireman, testified: "My attention was called first as I was sweeping off the foot-board, by an alarm-whistle; I looked on my side and saw the horse; I 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 that he was trying to back the horse off the road, as the shafts were up alongside of the horse's neck, and the wagon had run on him; he remained in that position until we struck him." This is the substance of the testimony on the subject; and, so far from showing that the decedent did not stop to look and listen before driving on the track, it shows conclusively that there was no direct and positive evidence on the subject, one way or the other. No human eye saw him from the time he sold the cakes to Deitz and Priesler until the alarm-whistle sounded, when he was seen driving upon the track, his horse's head within a few feet of it, and the engine not more than six hundred and twenty feet from the crossing where the collision took place.

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Whether he stopped, or not, before driving on the track, is matter of mere inference or conjecture, and cannot with certainty be known. the one hand is the presumption that he stopped to look and listen. He was well acquainted with the crossing, having been accustomed to drive over it every day, and must have known the time at which the regular trains passed. He had the highest motive to take the necessary precaution to insure his safety, and the presumption is that he did. On the other hand, it may be inferred from the circumstances, that if he had

Vol. II.]

PENNSYLVANIA RAILROAD Co. v. WEBER.

[No. 8.

stopped to look and listen he would have seen or heard the approaching train. But whether he stopped or not, it was the province of the jury to determine as a question of fact, and not a matter of law, for the decision of the court. The evidence from which the decedent's negligence may be inferred is not so clear and convincing in this case as in The Hanover Railroad Co. v. Coyle, 5 P. F. Smith, 396, and The Pennsylvania Railroad Co. v. Goodman, 12 Ib. 329, in both of which it was held, notwithstanding our dissatisfaction with the verdicts, that the question was rightly left to the jury. Manifestly the court could not have given the instruction prayed for without invading the province of the jury, and running counter to the whole current of our decisions in cases of negligence. If, then, there was no error in refusing to affirm the defendant's second point, did the court err in saying to the jury, in answer to it, 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, and you should find for the defendant? Whether he stopped or not was, in the absence of any direct and positive evidence on the subject, a matter of inference from all the circumstances of the case, and what was the reasonable and proper inference was for the determination of the jury. What possible harm then could the instruction complained of do the defendant? On the contrary, what stronger argument could have been made to the jury to show that he did not stop, for if they believed that he would not have been killed if he had stopped to look and listen, then the natural and pregnant inference would be that he did not stop; and if so, he was guilty of contributory negligence, and the plaintiffs were not entitled to recover. Nor was there error in charging that if the evidence shows negligence on the part of Weber in approaching and crossing the track of defendant's road, and no negligence on the part of the company, then the blame and fault would be Weber's own, and the law will not permit the plaintiff to recover.

This instruction was clearly right, and it could not, as contended, have misled the jury by leading them to believe that they could not find a verdict for the defendant unless they found that the company was not guilty of negligence, although they should find that Weber was, for in the very next breath the court told the jury that 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 plaintiff cannot recover.

The very able and earnest argument of the counsel for the plaintiff in error has failed to convince us that the evidence in this case shows such contributory negligence on the part of the decedent as made it the duty of the court to declare it such as matter of law, or that there was any error in the instructions given to the jury. On the contrary, we are satisfied, upon a review of the whole record, that the case was well tried by the learned judge, and that his charge contains a clear and correct statement of the law arising upon the evidence. If the jury erred in their finding, it was from no failure on his part to draw their attention to the true attitude of the case under the evidence, and to that view of it which tended to show contributory negligence on the part of the decedent.

The court could not have gone further without trenching on the prov

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