OWENS fl. PENNSYLVANIA R. CO.
pensate him for the injury he bas sustalned. The elements entering into damage are the following: First, such sum as will compensate him for the expenses he has paid orincurred in effecting his cure, and caring for and nlUSing him during the period that he was disabled by the injury: second, the value of his time during the period that he was disabled by the injury: third, if the injury has impaired the plaintiff's power to earn money in the future, such sum as will compensate him for such loss of power: fourth, such reasonable sum as the jury shall award him on account of pain and anguish he has suffered by reason of his injury." That point is affirmed. II (13) If thE' jury find·that the defendan t had, without objection, permitted those l'mployed at his quarry and the public to cross the track at the }Klint where the injury occurred, though not in itself a pUblic crossing, it owed the duty of reasonable care towarlis those using the crossing." That point is affirmed. . "(14) If the jury find that plaintiff was passing the crossing in question upon an express or implied invitation or inducement of defendant, or by its mere permission, he was rightfillly there." That point is affirmed. The qefendant has asked me to charge you as follows: "(1) It is the duty of a person about to cross the tracks ofa railway to stop, look, and listen; before attempting to do so, at a point where, without danger to himself, he can have the best view of the track; and, if the jury believe that the plaintiff did not so stop and listen, he was guilty of a contributory negligence, and cannot recover in this action," That point is affirmed. "(2) If the jury believe that the plaintiff could have seen the approaching engine if he hart looked, and yet did not do so, Ol' if he did look, and yet did not see the engine, when it was plainly visible, then, in either of sl1ch cases, he was guilty of contributory' negligence. and the verdict must be for the defendant." That point is affirmed. "(3) The plaintiff, by going' on the tracks of the defendant at the point where he was struck, tJecame a trespasser, and was guilty of contributory negligence in so doing, and, in the absence of evidence of any willful or malicious act upon the part of the defendant or its servants causing his injury, cannot recover in this case, and the verdict must be for the defendant." That point is denied. "(4) There is no evidence of negligence on the part of the defendant or its servants, and therefore the verdict mnst be for the defendant." I refuse to give you that instruction. "(5) Under all the eridence in the case, the verdict of the jury must be for the defendant." That point also is refused. The plaintiff is entitled to recover, if he is entitled to recover at all, upon the basis of the proved negligence of the defendant; that is to say, that the defendant omitted to perform some duty or do something which he ought to bave done, OJ: that he did something which he ought not to bave that the injUry complained of here was the result of sucb
48iliureto perform ad,nty. It'lglnotal1eged,ai:fd it;doeil not' appear; that the defendant wasCu]pable at whif:h movi'ng the timetbe llcqiclen(lhapX>'ened; The speed indee,d" slpw. The \fas a place where it wil13intending to sw.p. The engine was reversed, and the speed of the train was constan,tlydiminishi,ng: 'C There is' therefore nothing in the movement of the train in thatrespeet in which it can be alleged that the defendant was in any way culpable. '.' .' As I understand the position and evidence of the plaintiff, the defendant cis alleged to have been culpa.ble in not giving the usual signal of wa:ming, whichough,tto have been given at a place where any person cross'iIig the road ',might 'be exposed todanger.. The place at which this injury happened whe'n the plaintift' was attempting to cross the track was not a public crossing; but it was a place, as has been shown, where a number of persons engaged in business upon that'road might be called 'Upon to pass from one'side of tM the other.' Persons thus passing in the discharge of their business'cannOt be regarded merely as trespassers. The defendant's engine was coming up to this point,and with a proper degree of speed, carefuUyandt Ellowly. Tbe question for you to pass upon is, was a reasonable warn,ing given of. the approach qf the train at that point? The plaintiff and two other witnesses testify that they did not hear any signal given of the approach of the train. The ertgineer of the train, however, that' he gave four blasts of the whistle, which is the usual sign given on' aPt>roaching places of this kind; and the fireman testifies that he rang' his' bell at a sufficient d,istance from this point for all persons'at- it to henr'the whistle and the bellsignal. If that was done, and if it satisfactorilyappears to you, the b'y th(;l plaintiff that the usual warning was not would seem to be unfounded. I think it was proper and reasonable to require that persons having charge of railroad traiI).s, in coming to a place of that kind, where, as I have. said, a number of persons are engaged in business, and have occasion to" pass backward and forward, 1\hould give SOme warning. It is ypu to say: whether that real;\onwarning was given. .If you believe the testimony of the engineer . and of the fireman, it was; and that, perhaps; is entitled to greater w&ight, if the witnesses are credible, than the testimony of those who Wd not hearU,lfl whistle blown, pr the bell rung. It is. not at aU unreaSonable to pJ;'fJ,sume,tpat there. might be some diffi9ulty, at this point, in hearing these signals; because,. as th(;l witnesses all testified, there was an'unusual noise at t;ha,t point. A stone-crusher was in operation there, which was going attlla time, and it caused a great deal of noise, which might have interfered with the hearing of a signal which the engineerand fireman swear Was given at that time. If, then, you are satisfied,- under all the circumstances and the weight of the evidence, that the signal which is usually given at suoh platles, and which it is r.easonableto ,require persons in charge of trains to give, was given, and that it was ,not the fault of the persons on the engine that that signal was not heard; if ata Iilufficientpoint below or away from the
OWENS ". PENNSYLVANIA &00.
crossing to be heard, and was given in the usualway,-theywould seem to have performed the duty required of them by law, and culpability could not be imputed to them. Then, again, gentlemen, as to the only other point in the case, did the plaintiff'do what he was required to do in crossing the railroad track at this point? I have. instructed you, in answer to the defendants' points, that he had a duty to perform, as well as the persons in charge of the railroad.· If he acted incautiously, imprudently, and if that conduced to the injury which he suffered, whatever the degree of culpability imputable to him may be the railroad company is not responsible, and the plaintiff <Jannot recover. If he contributed by his incautiousness-his want oicale-in crossing the railroad at this point, although the defendant or the· persons in charge· of this train. may have failed in the discharge of any duty which the law required ofthem, the defendant is not liable. It that there were three or foUf tracks here, that there were cars upon the tracks, and.that the plaintiff was approaching the main. track crossing. It was· his duty to do what a careful, prudent man would be expected to doj-tostop and look along the track to see whether he would be exposed to any danger by attempting to cross it; and, if he failed to do that, he was culpable; and, if his negligencecolltributed to the injury which he received, he would noL be entitled to recover nere. Did he stop, and did he use his senses, in order to discover whether a :train was approaching, and whether it would be dangerous for him to cross the track at thattime? According to his own testimony, and a.ccording to aU the he did not stop when he got to the track. ,It. was alleged that the distance between the siding which was next to: the main track and the track was so narrow that he could not do 1;10; thatit would not have been safe for him to do so. Was this reason well founded? You have the testimony of the conductor of the train that a short distance from this point he got off the train on the side .of the main track on which -the pillintiff was approaching it, and that there was. room enough for him to jump off and pass along with perfect safety. It was the duty orthe plaintiff to select such a point as would enable him to see along the track both ways, and especially in the direction in which thi!! train wa.s approaching. If he could not see it, it was his business ,to stop, or to select some other place at which he could make this observation, and determine whether it would be proper for him to crosl!.. He did not stop when he came to the track; he did not look in the direction in which the train was approaching;' and he would there· fore seem to have failed in the duty which the law required of him for his own protection. . As I said before, he seeks to excuse himself from the perfonnance.ofthat o.tlty by alleging that it was not safe for him to stop between the main track and the sidipg next to it, to enable hiill' to ll-seertaio, there was a:pything on .the main track or not. If he for him todo so,-of course hew0uld could iUPtdo 80,---,"ifit was be excused from lnaking an observation at that pOint. But I do not say that he, had any tjghtrecldessly to pass over that track without making &JlyQther.obeer-vation, or without seekipg point at which· he
would be able to see whether it was safe for him to cross the track or not. He 'Wanted to get across, and I think he had a right to go across, and perform his business, at that point; but he must exercise this right so as to avoid, if possible, subjMting himself to any risk of injury by doing so; and, as I have already said, if he could not make the observation which he ought to have made to insure his own safety, he ought to have sought to cross at some other place, or appr<'lach the track at some other place, where he could make the observation which the law requires him' to make, in order to avoid injury to himself by the passage of a train upon the main track of the railroad. ·.There are only two points in this case towhi<lh you need direct your attention: Jilirst. Did the defendants here, the persons in charge of this engine, do anything, or omit to doa.nything, which the law required them to do, to avoid injuring persons who might be crossing the track before them? Did they give the usual warning to persons who might intend to cross the track at this point; so that they would be aware of the approach of this train? If they did, they did all that they law required them to do, and they oannotbe charged with culpability in not doing something else. If the plaintiff did not hear this warning, that is his misfortune, and it does not constitute any fault on the part of the defendants. They did all that the law required them to do, and would not, therefore, be blamable for any injury suffered by the plaintiff. Even if they did not this, and the plaintiff was incautious and imprudent, and failed to exercise the proper degree of care in crossing the track at this place, and his negligence contributed to the injury, the defendant is entitled to your verdict. I repeat that the law imposes upon the plaintiff the duty of making such observation, before he undertakes to oross this track, as a prudent man would make to avoid the risk of crossing, if there was anything upon the track which would subject him to injury. 'fhe plaintiff did not stop when he came to the track. Be alleges that he,stopped at someplace else, some distance from it, but he did not stop when;he came to the track, and look in the direction in which this train was;coming, to determine whether it was attended with any risk to'cross the track at that ,point or not. So that if he failed in exercising that which the law requires him to exercise in crossing the railroad at a dangerouspoint,-and it is always dangerous to cross a railroad upon which trains are running,-'-ifhe Jailed in this duty, he contributed by his negligence to the injury which he received, and, he is not entitled to your verdict. I have read to you the request presented by the plair1tiff'here as to the measure of damages. You will ascertain the damages upon that basis, if you determine that the plaintiff should recover, and you will remember the evidence upon that point. In determining your verdict, you will recol'lect that the primary and essential question and point is, 11:1 the first place,to determitie whether the defendants, thepersolls in charge of this engine, did what the law required' them to do as to warning persons who might attempt to crOss the road' at this point or not. If they did blow the whistle on this
gine, and ring the bell, ata point where it might have been heard a reafrom the place of crossing, then they did all that the law sonable required, and they would not be liable for any injury suffered by the plaintiff in attempting to cross that track. That is the primary point. If you find that the defendant the engineer did what the law required of him in this respect,he is not chargeable, and the persons having control of the train are not chargeable, with any negligence of duty; and, whatever injury may have been suffered. by the plaintiff, the defendant would not be liable. Again, even if they did not do what the law required of them in this respect, if the plaintiff by his incautiousness, and his failure to make such observation as he ought to have made when he was about to cross this track, contributed to the injury, he cannot recover, and your veraict would then be for the defendant. I think that is all that is necessary for me to say to you to aid you in determining this case. You will take it into consideration, and will find Buch a verdict as you think is warranted by the evidence. You are to be governed by that alone. Whether the plaintiff iaa poor man or a rich man, whether the defendant is a corporation or not, is not a matter of consideration in any way. You are to consider the evidence, and to determine from it whether, in point of law, the defendant did what it was required to do, and whether the plaintiff by his own conduct contributed to tbis accident or not. If you find that the defendant did not fail in the performance of his legal duty, he is not liable; and if you find tbat the plaintiff faKed to do what he ought to have done out of regard for his own safety, and that failure conduced to the injury, then the defendant would be entitled to your verdict. You will consider the whole question,and render such a verdict as you deem warranted by the evidence.
Counsel for plaintiff excepts to refusal of the court to affirm plaintiff'!'! second. sixth, seventh, and eighth points. Counsel for defendant except to answers to first, third, fourth, eleventh, thirteenth, and fourteenth points of plaintiff, and also to answer to third, fourth, and tifth points of defendant; also to the charge of the lea.rned judge, Which stated that this was not a public crossing, but it was a place where people engaged in business used to cross to and fro. and therefore the plaintiff cannot be regarded as a trespasser.
WABASH Ry. Co., (WARD, Intervenor.)
(Oircuit Oourt, N. D. Ohio. November 2, 1889.)
:MASTER AND SERVANT-RAILROAD EMPLOYES-CONSTRUCTION OJ' STATUTE.
Act Ohio, :March 23; 1888, for the protection of railroad employes, requires every railroad in the state 'to adjust, fill} or block the frogs, switches, and guard.rails on its tracks," so as to prevent the feet of its employes from being caught therein. HeW that, where two railway companies receive cars from each other over a delivery track at a C6.rtain point,a person employed by one of them to take the number of its cars, and inspect thai).' seals, as trains were madl;l up at such place by the other, is an employe of the latter, within the meaning oithia statute.