Louisville & N. R. Co. v. Street

Mobile Furniture Co. v. Little, supra, a suit on garnishment bond, had to deal with, as here pertinent, a charge wherein it was said that the burden was on plaintiff to furnish data from which the jury could ascertain with reasonable certainty the amount of the actual and exemplary damages. To this question, speaking through Haralson, J., the court responded: "Vindictive damages are allowed to be imposed by way of punishment, are at the discretion of the jury, within reasonable limits. It was not incumbent on plaintiff to furnish the data for them to ascertain with reasonable certainty, the amount of such damages." This decision is without bearing on the question here. The statement, "within reasonable limits," obviously had reference to the maximum, and not to the minimum, sum assessable by the jury as exemplary damages.

In the brief this quotation from Watson's excellent work on Damages (supra) is set down: "But the amount of such [punitive] damages is not within the arbitrary or capricious discretion of the jury; it should be reasonably adequate to the degree of fault." The last phrase of the quotation was a credited appropriation, by the learned author, from L. & N. R. R. Co. v. Minogue, 90 Ky. 369, 374, 14 S. W. 357, 29 Am. St. Rep. 378. Appellee was a passenger on one of appellant's trains, and was injured as the result of a collision between that and another train. The jury returned a verdict for $10,000 in favor of the appellee, and the defendant (appellant) insisted that the sum assessed was excessive. The court ruled against appellant's stated insistence. The court, in dealing with this question of excessiveness of the verdict, used the language quoted by Mr. Watson. It is obvious that the Kentucky court was not invited, nor did it assume, to announce the recognition of the power of review and revision of verdicts for punitive damages, only, on the sole ground that the sum assessed by the jury, in its discretion, is inadequate.

The several texts cited in briefs announce general and familiar rules, but no writer, text or judicial (and investigation here has been exhaustive), has stated or approved the doctrine on which movant must rely on this occasion.

The rehearing is denied.

STRUBLE V. PENNSYLVANIA CO.

(Supreme Court of Pennsylvania, Jan. 3, 1910.)

[75 Atl. Rep. 17.]

Carriers Injuries to Passengers-Contributory Negligence.*—The rule requiring that one crossing a railroad over a highway should stop, lock, and listen is not to be rigorously applied to a passenger at a station going to or from his train.

Carriers Injuries to Passengers-Contributory Negligence.t-A passenger awaiting his train at a station has a right to assume that the railroad company will exercise the strictest vigilance to protect him from injury, either by the train he intends to take, or one passing through the station before it arrives.

Carriers Injury to Passenger at Station - Contributory Negligence. Where a passenger at a station in crossing an intervening track to take his train is struck by the locomotive of the train which he intends to take, the question of his contributory negligence is for the jury.

Appeal from Court of Common Pleas, Mercer County.

Action by Julia A. Struble against the Pennsylvania Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

S. R. Mason, for appellant.

S. H. Miller and Q. A. Gordon, for appellee.

BROWN, J. On the afternoon of November 15, 1905, the husband of the appellee-77 years of age-purchased from the defendant company, at its ticket office in Sharon, a ticket to Clarksville. The train he was to take was coming from the south on the north-bound track, which was opposite the station. It fronted on the south-bound track. After purchasing his ticket the deceased remained in the waiting room with other passengers until the ticket agent notified them to cross over to the platform and

See sixth foot-note of Dieckmann v. Chicago, etc., R. Co. (Iowa), 32 R. R. R. 346, 55 Am. & Eng. R. Cas., N. S., 346; fourth head-note of Chicago, etc., R. Co. v. Stepp (C. C. A.), 32 R. R. R. 207, 55 Am. & Eng. R. Cas., N. S., 207.

For the authorities in this series on the subject of the right of a passenger to rely on the assumption that the carrier has performed, or will perform, its duties to him, see fourth foot-note of Dieckmann Chicago, etc., R. Co. (Iowa), 32 R. R. R. 346, 55 Am. & Eng. R. Cas., V. S., 346; second head-note of Cincinnati Traction Co. v. Leach (C. C. A.), 32 R. R. R. 193, 55 Am. & Eng. R. Cas., N. S., 193; third foot-note of Rearden 7. St. Louis, etc., R. Co. (Mo.), 31 RR. R. 429, 54 Am. & Eng. R. Cas., N. S. 429; fourth head-note ci Lockwood v. Boston Elec. R. Co. (Mass.), 31 R. R. R. 395, 54 Am. & Eng. R. Cas., N. S., 395.

Struble v. Pennsylvania Co

take the train which was approaching from the south. It was composed of vestibule cars, the doors of which were open for passengers only on the east side, and it was therefore necessary for them to cross over to the platform to enter the train. Other passengers passed safely over the north-bound track to the platform, but, as the deceased was about to cross the first or south-bound track, a locomotive passed over it to the south at a high rate of speed. He waited until it had passed, and, in attempting to cross over to the platform, was struck by the locomotive of the approaching train just as he put his foot upon the first rail of the north-bound track, and died within a short time from the injuries received. The testimony of the ticket agent is that when he notified the passengers to go over to the platform, they started to do so. A rule of the company required him to give the notice to cross over two or three minutes before the arrival of the train, and he stated that whenever he learned from the dispatcher that it had left South Sharon a three minutes' run from his station-he would notify the passengers to cross over. He was not able to state what length of time elapsed between his notice to the passengers to cross over and the arrival of the train which struck the deceased, but it is quite clear that he had not given the three-minute notice required by the rule of the company, for his testimony was that it took but 15 seconds to cross over. Brief notice was given to the deceased that his train was approaching, and when he started to do what the agent of the company had directed him to do, the engine rapidly approaching from the north cut off his passage over the tracks, emitted steam and smoke, obstructed a view to the south, and made a noise which prevented his hearing the calls to him not to proceed. The negligence of the company was so clearly established that on this appeal its learned counsel does not question it, frankly stating that the sole question is whether the deceased was guilty of such contributory negligence as to prevent a recovery by the appellee.

Clear as was the negligence of the appellant, the deceased, through a passenger, was bound to exercise proper care under the circumstances, and, if it unmistakably appeared that he rushed in front of the approaching locomotive, which he saw, or was bound to see, taking the chance of passing safely over, the law would charge his death to his own rashness. But such penalty is not to be imposed upon those who have been injured by his death, unless the only possible conclusion to be reached from the evidence is that no ordinarily prudent man would have done what he did. Negligence, whether it be that charged to a defendant or to a plaintiff as a contributing cause to the injuries for which he sues, is absence of care according to the circumstances. The care required of one about to cross a railroad laid over a highway is fixed by the unbending rule requiring him to stop, look, and listen. This rule, however, for

Struble v. Pennsylvania Co

a good reason, is not to be rigorously applied to a passenger at a station going to or from his train. When at a station an intending passenger awaits his train, he has a right to assume that the railroad company will perform its duty of exercising the strictest vigilance to protect him from being injured, either by the train he intends to take, or by one passing through the station before it arrives. Pennsylvania Railroad Co. v. White, 88 Pa. 327; Flanagan . Philadelphia, Wilmington & Baltimore R. R. Co., 181 Pa. 237, 37 Atl. 341; Betts v. Lehigh Valley R. R. Co., 191 Pa. 575, 43 Atl. 362, 45 L. R. A. 261; Harper v. Pittsburg, Cincinnati, Chicago & St. Louis R. R. Co., 219 Pa. 368, 68 Atl. 831; Besecker v. Delaware, Lackawanna & Western R. R. Co., 220 Pa. 507, 69 Atl. 1039, 123 Am. St. Rep. 714.

In view of the duty which the appellant owed the deceased, from the relation which it established to him as a passenger in selling him a ticket, to be almost immediately used, the court could net, under all the evidence, have pronounced him guilty of contributory negligence. That question was clearly for the jury, as abundantly appears from a mere recital of the undisputed facts. When notice was given by the defendant's agent to cross over to the east platform, the deceased, with other passengers, started to do so. While proceeding along the walk provided for the use of passengers in crossing from the station to the platform, and just as he reached the first or south-bound track, his progress was interrupted or delayed by a locomotive passing south on the South-bound track towards a water tower standing some distance down the track. This engine made more or less noise, and was emitting smoke and steam. As soon as it had passed the deceased proceeded on his way towards the eastern platform, had crossed the first or south-bound track, and just as he was about to step on the north-bound track, which was but eight feet from the track he had crossed, he was struck and killed. In addition to the foregoing undisputed facts there was evidence that the engine passing to the south emitted smoke and steam, obstructing the view of the incoming train, and that, in consequence of the noise made by the passing engine, the deceased was unable to hear the warning given him not to cross over. In attempting to cross over he was doing just what the agent had directed him to do. He had a right to assume that the notice given to cross over was sufficient to enable him to reach his train in safety, and the evidence tended to show he could have done so had his progress not been interrupted by the act of the defendant in running the engine down the south-bound track just at the time when the passengers were crossing over to the other side. While the jury might have found him guilty of contributory negligence in not exercising proper care under the circumstances, the fair inference drawn by them was that he was not, and we cannot therefore disturb it.

The assignment of error is overruled, and the judgment af

firmed.

HERRIN & S. R. Co. v. NOLTE et al.

(Supreme Court of Illinois, Feb. 16, 1910.)

[90 N. E. Rep. 1097.]

Eminent Domain-Compensation Measure and Amount.-Where land is taken by a railroad company for a right of way, the fact that the land will remain open and unfenced for six months may properly be considered in fixing the damage from the construction of the railroad to the land not taken.

Eminent Domain-Compensation Instruction.-A requested instruction in condemnation proceedings, authorizing the jury viewing the premises to fix the amount of damages on their judgment formed from personal examination, even though it might differ from the amount testified to, and from the weight of the evidence given by the witnesses, was erroneous and properly refused.

Trial Instructions-Support in Evidence. In condemnation proceedings, where the petitioner's own witnesses testified that land not taken would be damaged, the court properly refused to instruct at its request that if the property not taken had been increased in value by the improvement, and this equaled or exceeded the injuries sustained, no damages should be allowed, although the charge stated a correct principle of law.

Trial Compensation-Instructions Credibility of Witnesses.—The testimony of every witness, not willfully false, is entitled to be weighed by the jury, and it was error in condemnation proceedings to charge that, if any witness had underestimated the value of the land taken or the damages to the land not taken on account of interest, prejudice, or want of knowledge, experience, or truthfulness, their testimony should be disregarded, in so far as it unjustly underesti mated either the value of the land taken or the damages to the land not taken.

Eminent Domain-Harmless Error-Instructions. In condemnation proceedings to acquire a railroad right of way, where there was no objection to the amount of damages awarded for the land taken, and the court is of the opinion that under the evidence and the circumstances of the case, the verdict for damages to the land not taken is as favorable as could be expected, it will affirm the judgment, although the trial court erred in instructing the jury.

Appeal from Williamson County Court; W. F. Slater, Judge.

Condemnation proceedings for a right of way by the Herrin & Southern Railroad Company against Henry Nolte and others. From a judgment on the verdict fixing the amount of damages, the petitioner appeals. Affirmed.