On this subject the plaintiffs below were not | tance between the east and west track was about without evidence, some of which has already seven feet, and the "overhang" of the cars was been incidentally noticed. The testimony was about eighteen inches. One of the plaintiffs' such as to suggest the inquiries, whether those in witnesses, a brakeman, on the caboose or rear charge of the train on which deceased was a car of the coal train, testified that when he first passenger, exercised proper care in not stop-saw Werner, he was standing in the centre of ping before they reached either station, and in Erie Avenue about five feet from the track. As stopping opposite a station, where passengers soon as the caboose went by the crossing-cleared destined for that point would naturally suppose it about five feet-Werner walked across "with they were expected to leave the cars; whether his head straight forward." Witness called to there was or was not neglect of duty in not warn-him to "look out;" but he never looked up, but ing the passengers to keep their seats until the went, straight on. "I would have done the express train passed; and whether the rule of the same." Werner reached the west track, when company, requiring approaching trains to stop an engine, running south at the rate of about when a passenger train was standing at the twenty miles an hour, struck him on the right station, was not disregarded. There was testi- side and killed him. Another of the plaintiffs' mony properly before the jury on which they witnesses, a brakeman on the car in front of the might base their verdict, and we find nothing in caboose said: "Werner was looking on the other either of the assignments of error that would side when I first saw him after he had passed the warrant us in reversing the judgment entered caboose. I can't tell what way the man looked thereon. when he was crossing. He just looked across and started. He must have looked up the track, for he started or drew back, but did not get away quick enough." Judgment affirmed. Jan. '79, 129. Negligence-Contributory negligence-Province Where the plaintiffs' evidence did not clearly show contributory negligence, the defendants gave evidence (not contradicted) which they claimed clearly showed contributory negligence, and presented points based thereon requesting the Court to charge, as matter of law, that the plaintiffs could not recover. The Court declined so to charge, but submitted the question of contributory negli gence to the jury, and affirmed the points, "provided the jury find the facts as assumed :" Held, that in this there was no error, but, on the contrary, if the Court below had affirmed the points without qualification, it would have been an invasion of the province of the jury. Defendant's witness, on the engine on the west track, said, “As we approached Erie Avenue, I saw a man run from the corner of the caboose, trying to cross the track we were on; he held his head down and had some kind of a cap on, and appeared to be muffled up. As he came to the rail of our track he looked towards the engine and threw himself back, but not far enough to avoid the engine." Witnesses on the engine testified that the bell was rung; but it was not heard by any one else. The uncontradicted evidence showed that the whistle was blown. Defendant submitted the following points:(1) That it was the duty of the deceased, before attempting to cross the defendants' tracks, to stop, look, and listen for approaching trains, and the plaintiffs' evidence showing that he failed to take these precautions, his failure was not merely evidence of negligence, but was negligence in itself, and the plaintiffs cannot, there Error to the Common Pleas No. 2 of Philadel- fore, recover. phia County. Case, by the widow and minor children of Augustus Werner, deceased, against the Pennsylvania Railroad Company, to recover damages for his death, caused, as alleged, by the defendant's negligence. On the trial, before MITCHELL, J., it appeared that, on a rainy morning in February, Werner, a newspaper carrier, while walking along Erie Avenue, in the outskirts of the city of Philadelphia, approached the crossing of the Philadelphia and Trenton Railroad, on the east side of the tracks. A coal train, of several hundred feet in length, was slowly passing, at the time, on the east track in a northerly direction. The dis (2) The duty of stopping was the more imperative as the view of the tracks upward was obstructed by a standing coal train, of several hundred feet in length, and the deceased, in passing the rear of the coal train, where he could only see in one direction, and continuing in his course without any attempt at examination, was guilty of negligence, and the plaintiffs are therefore not entitled to recover. (3) The evidence of the plaintiffs establishing the fact that the deceased was warned not to cross the tracks, as an engine was then coming, the deceased was guilty of negligence in not heeding the warning, and the plaintiffs cannot, therefore, recover. (4) The uncontradicted evidence, showing that a whistle was blown before engine No. 749 reached the crossing at Erie Avenue, the deceased was also guilty of negligence in not regarding that warning, and therefore the plaintiffs cannot recover. If, therefore, you are satisfied under the testimony that the deceased did not perform his full legal duty of stopping, looking, and listening, before he crossed; but if you think that, as described by one of the witnesses for the defense, the moment this caboose car of the coal train got beyond the crossing, he darted across without looking up, however unfortunate the result, the railroad company cannot be made to pay for it. I have substantially affirmed all the defendant's decline to affirm them as law.] (5) If the deceased was deaf, and in consequence of such infirmity failed to hear the warning given to him to stop, he had greater reason for caution in advancing over the tracks, and therefore his failure to stop and look was negli-points, if the jury find the facts as assumed. [I gence per se, and the plaintiffs cannot recover. The Court charged, inter alia: "You will recollect the testimony of the first witness called, Mr. Sullivan, who was the brakeman on the coal train; he called to him to look out. Now, whether Werner heard that, we have no means of knowing. Whether he did not hear it, or whether hearing it, he was under the impression that he would get across, and committed an error of judgment in coming forward, or whether having got into a difficult position-having got between the two tracks he then was put in a position of having to choose between two evils, and went forward as the least evil of the two, we are not able to say from any positive testimony. In the latter case, of course, that is an exception to the general rule which I have given you. [If a man has got himself, without negligence, into a position of danger, he is not responsible if he makes a mistake of judgment in getting out. A man put under that pressure, if he uses his judgment honestly, is not responsible, although he might have done better if he had done the other way.] Verdict $7000, and judgment thereon for the plaintiffs. The defendant took this writ, and assigned as error those parts of the charge inclosed in brackets, and the refusal to affirm the above points as matter of law. Chapman Biddle, for the plaintiff in error. The case was improperly left to the jury. There is an imperative legal obligation on any one about to cross a railroad track to stop, look, and listen. Railroad Co. v. Heileman, 13 Wr. 60 1879; ante, 510. Werner stopped before crossing the east track, but omitted to do so before crossing the west track; and as the view of the west track was obstructed for hundreds of feet by the coal train, the duty, then, of stopping was more manifest when the approaching train was not seen. Railroad Co. v. Beale, 23 Sm. 509. The space between the tracks was seven feet, and the overhang, as testified by the parties, was probably not exceeding three feet. There was, therefore, a space of four feet in the centre between those tracks, where a man might stand The plaintiffs' testimony showed that Werner and be entirely safe from passing trains; but if paid no attention to the warning of the man on you have ever had any experience of standing the caboose to "look out;" but, on the connear a train of cars or a locomotive coming at trary, he "never looked up. He went straight the rate of twenty-three miles or twenty-four on." He was bound to stop after passing the miles an hour, you must remember that it takes east-bound track and look before crossing the a man of pretty steady nerves to stand within a west track. This he failed to do. The Court few inches of a locomotive, and the slightest therefore erred in saying to the jury, "if a man mistake, a mistake of either involuntary starting has got himself without negligence into a position of the nerves, or of judgment in the distance, may subject a man to the risk of being struck. [Therefore it may be that Mr. Werner, having got out from behind this coal train, found himself between the tracks, in a position of danger, and went forward as the least dangerous alternative that he had presented to him. His action under such circumstances would, of course, not be negligence on his part; but if he got himself into a position of danger by negligence in the first place, he would not be excused by any subsequent danger.] of danger, he is not responsible if he makes a mistake of judgment in getting out." If Werner's hearing was good, his duty was clear; if defective, "he had a greater reason for caution in advancing." Railroad Co. v. Feller, supra. Gendell (Reeves, with him) for the defendant in error. The case was properly left to the jury. Werner certainly stopped," and in the absence of all evidence, we must conclude that he "looked and listened;" for the love of life and instinct of self-preservation afford a legal presumption that | fore you are satisfied, under the testimony, that the deceased took proper care, till the contrary the deceased did not perform his full legal duty is proved. Rnilroad Co. v. Rowan, 16 Sm. 399. Railroad Co. v. Weiss, 6 WEEKLY NOTES, 258. Werner started "with his head straight forward," i. e., in the direction in which he was going. He probably supposed the words "look out" to be meant as a warning that the coal train was about to back, and therefore sprang forward. The brakeman said "I would have done the same;" and negligence is the want of care that a prudent man would exercise under the circumstances. At the west track he stopped and tried to spring back, but it was too late. Johnson v. Railroad Co., 20 Sm. 357. Warren v. Railroad Co., 6 Phila. 537. Railroad Co. v. Smith, 28 Leg. Int. 101. The Court affirmed the defendant's points "if the jury find the facts as assumed," and it was all the Court could rightly do. March 3, 1879. THE COURT. This is a close case, lying fast by the dividing line between questions of law and of fact. Testimony tending to prove that the deceased, Augustus Werner, lost his life by the negligence and improper conduct of the employés of the railroad company, was introduced and without objection submitted to the jury, who, by their verdict, have settled that question in favor of the plaintiffs below. It must therefore be assumed as a fact that the company was guilty of negligence. In the Court below the defence was rested mainly on the ground of concurring negligence on the part of the deceased; and as to that, the contention now is that under the testimony this was a question of law for the Court, and not one of fact for the jury. It was not raised as is sometimes done on a motion for a non-suit, grounded solely on the plaintiff's testimony, but by a request for binding instructions after the testimony on both sides was closed. The five points submitted by the learned counsel for the company are each based on the assumption that acts of the deceased constituting contributory negligence were established beyond reasonable doubt, and the Court was asked to say as matter of law, that the plaintiffs could not recover. The learned judge, who presided at the trial, after fairly presenting the questions of fact raised by the testimony, submitted them to the jury in a very clear and able charge, in which he affirmed the defendant's points, provided the jury found "the facts as therein assumed," but declined to affirm them as matters of law. In the course of his charge, after calling the attention of the jury to the testimony, and stating in the most pointed and emphatic terms, the duty of the deceased, he proceeded to say: "If there of stopping, looking, and listening before he crossed, but if you think, as described by one of the witnesses for the defence, the moment the caboose car of the coal train got beyond his crossing, he darted across, without looking up or down the road, that was negligence on his part, and however unfortunate the result, the railroad company cannot be made to pay for it." There can be no question as to the fairness of the charge, and its correctness also, unless it be in the refusal to rule the case as a question of law, and thus take it from the jury. conclusively proved as to admit of no reasonable When the facts are admitted, or so clearly and doubt, it is the duty of the Court to declare the law applicable to them, but when material facts are disputed or inferences of fact are to be drawn from the testimony, it is the exclusive province of the jury to determine what they are. The line of demarcation in this respect between the duty of the Court and that of the jury should be carefully guarded. While on the one hand, the Court should not permit the jury to disregard or evade its instructions, as to the matters of law, it should be equally careful not to invade the province of the jury, and take upon itself the determination of facts about which there is any dispute. The first and fifth points of the defendant, above referred to, assume that Werner neglected to take the necessary precautions "to stop, look, and listen for approaching trains" before attempting to cross the track, and therefore the plaintiffs could not recover. This was asking the Court to do more than the evidence warranted. The undisputed testimony was that he did stop when he came to the railroad, indeed he was compelled to do so by the passing coal train. When first seen by the brakeman, who was on the caboose attached to the train, he was standing in the centre of Erie Avenue a few feet from the eastern side of the track, and there he remained until the coal train passed by. To conclude that he did not listen while standing there would require a strained and unnatural inference. The presumption would rather be that he did listen as well as look. The love of life and the instinct of self-preservation are too strong to justify the inference that he was heedless all the while, and failed to exercise ordinary care. The common law presumption is that every one does his duty until the contrary is proved, and none of the witnesses undertake to say that he did not both look and listen while waiting for the coal train to pass. It is undoubtedly true that when the plaintiff's own evidence discloses contributory negligence, there can be no recovery, but if it does not, the burthen is on the defendant to dis prove care. And in such case the question of negligence is for the jury. (Pennsylvania R. R. Co. v. Weber, 26 P. F. Smith, 157.) The vice of these points was that they assumed mere than was clearly proved. and declaring, as matter of law, that the deceased was guilty of contributory negligence, and therefore his widow and children could not recover. We are not prepared to say that there were such undisputed facts. In the second point, it is asserted "that in Viewing the question in the light of all the passing the rear of the coal train where he could circumstances, as they were disclosed by the only see in one direction," he continued "in testimony, it is by no means clear that there was his course without any attempt at examination." error in refusing an unqualified affirmance of In view of all the circumstances as they are pre-defendant's points. On the contrary, we think sented in the testimony, it could not be safely if they had been so affirmed, the learned Judge assumed as an undisputed fact that the deceased did not endeavor to see that the way was clear. The witness already referred to, after describing the situation and Werner's movements, says: "I would have done the same thing." Another brakeman, who narrowly escaped being run over by the locomotive, says: "Werner was looking on the other side, when I first saw him, after he passed the caboose. I can't tell what way he was looking when he was crossing; he just looked across and started; he must have looked up the track, for he started or drew back, but did not get away quick enough." would have invaded the province of the jury and taken upon himself the determination of facts which properly belonged to them. The testimony revealed, as far as was possible, the position and movements of the deceased, and the circumstances by which he was surrounded at the time he met his death; and it was for them to find the facts, draw such inferences as were warranted, and, under the direction of the Court as to the law, say whether he was chargeable with negligence which contributed to the accident. If the verdict was contrary to the evidence, the only relief was in granting a new trial. This was refused, and is not the subject of review here. Considering the charge as a whole, we think there is no just ground of objection to the portions covered by the first and second assignments of error. When read in their connection with and relative to other parts of the charge, they are free from error. Judgment affirmed. The third point takes it for granted not only "that the deceased was warned not to cross the tracks, as an engine was then coming," but that he heard the warning and heeded it not. There is nothing in the testimony that would have justified the Court in assuming these as uncontroverted facts. One of the witnesses testified that he hallooed "look out." This was done, as the witness says, to warn him of the approaching locomotive; but it would be difficult to say from the testimony, whether he heard the warning or not; or, if he did, what he supposed it meant. Possibly, if Werner had survived, he would say that he heard the warning, and thought July, '76, 121. it had reference to the coal train, and that he was thus induced to hasten across the track, so as to escape danger. This would be a more reasonable inference than that he heard the warning that a locomotive was coming, disregarded it, and passed on to his own destruction. The fourth point assumes that the undisputed evidence was that a whistle was blown before the engine reached the Erie Avenue crossing-that Werner heard it, but did not regard it. This also would have been an unwarranted assumption of fact on the part of the Court. It may well be that the testimony would justify such an inference, but it could not be regarded by the Court as an undisputed fact. The question is not whether the testimony did not point strongly to the conclusion that the deceased was chargeable with contributory negligence, in one or more of the particulars stated in the points, but whether there was such conclusive evidence of the facts as would warrant the Court in regarding them as clearly established, Jan. 6, 1879. Hass v. Philadelphia & Southern Mail Steamship Co. Negligence-Master and servant-Fellow-servant in a common employment-Seaman-Independent employment of stevedore-Jury-Question of fact for. H., a seaman on one of the defendant's steamers, was injured while on duty as night watchman in the port of New Orleans. Neither the master nor the seamen have anything to do with the loading and unloading of the steamers at that port, which, by special contract, is under the exclusive charge of a general stevedore, who employs his own men, uses his own machinery and cargo planks. On the night of the accident these planks were left withtiff, who had gone forward to learn what was the cause of out proper support by the fall of the river, and the plaina noise he had heard, stepped upon one of them, which tilted and threw him overboard. Held (affirming the judgment of the Court below), that defendant or an independent contractor, or whether the the questions whether the stevedore was an agent of the plaintiff was a fellow servant in a common employment, were properly submitted to the jury. Mullan v. Steamship Co., 28 Sm. 25, I WEEKLY | charge of the officer of the deck at night, that NOTES, 214, followed. Error to the Common Pleas No. 4, of Philadelphia County. Case, by August Hass against the Philadelphia and Southern Mail Steamship Company, to recover damages for injuries received by the plaintiff through the alleged negligence of the defendant's servants. The evidence disclosed the following facts: the plaintiff knew the condition of the planks, and it was his duty either to have blocked them himself, or to have notified the officer of the deck of their condition. The plaintiff submitted the following points: (1) That it was the duty of defendant, as the employer of plaintiff, to exercise reasonable care and diligence in supplying him with safe machinery and suitable tools, and in keeping and maintain. ing the ways, passages, approaches and appliances, in and about his work and labor, in a safe and secure condition. Answer. I decline to affirm this point. It was not the duty of the employer to keep and maintain these planks in a safe condition as regards the plaintiff. It is of course their duty to employ proper fixtures and machinery, and they are liable if they have been guilty of any neglect or want of care in this respect. required, is a breach of duty for which the master becomes responsible, and should be held answerable. Answer. If this point is intended to mean that when a person employs another in an independent employment, he is responsible, under all circumstances, to one of his employés for an injury caused by that person's negligence, I decline to so charge. He is responsible if he employs an agent, but not if he employs a person in an independent employment. That is the general rule. The plaintiff was a seaman on board the defendant's steamship Tonawanda. The steamship was lying in the port of New Orleans at the time of the accident, which happened about eleven o'clock at night. The plaintiff was acting as night watchman in port, and it was his duty to take general charge of the ship, keep her fasts from chafing, admit no one on board except the ship's company, and see that nothing was stolen. The cargo was loaded and unloaded by Manning, (2) That when an employer places the entire a general stevedore whom the company, by charge of his business or a distinct branch of it special contract, pay by the day on the outward in the hands of a middleman, agent, or represencargo, and by the package or barrel on the in-tative, exercising no discretion and no oversight ward. Manning employed his own men, who of his own, then the neglect by such agent or alone had charge of the gangways, planks and representative of ordinary care in supplying and blocks, never allowing any interference. There maintaining suitable instrumentalities for the work was a forward and an after gangway, both of which had planks leading to the wharf, which were about a foot wide, three inches thick, and from twenty to thirty feet long. These cargo planks, which were above the rail and staunchions, rested upon benches upon the deck, and blocks or chocks were put between the ends of the planks and the benches, so as to keep the planks on a level with the levee-the ship rising and falling with the rise and fall of the river. Neither the captain nor the crew have anything to do with the arrangement of the planks, blocks or (3) That if the jury find that the defendant had benches, nor with their adjustment to the rise left the entire charge of the business and manageand fall of the river. No orders were given by ment of the vessel, and of the keeping of the master or officers to the stevedores about loading ways, passages, approaches and appliances thereor unloading, except that the Iroper stowage of to in a safe and secure condition in the hands of the cargo and trimming of the hip was in charge the master of the vessel, Captain Wiltbank, as of the head stevedore and the chief officer. The their agent and representative, exercising no disoutward cargo was out, and the ship had been taking on board the return cargo. The plaintiff, who was standing amidships, heard a noise, started forward to learn what it was, stepped upon the second plank in the gangway near the pilot-house, which gave way because the vessel, which lay in an eddy, had sunk during the night, leaving the ends without support. He tripped and fell over the planks into the water, thereby breaking his leg and bruising himself in the fall. It was in evidence that it was the custom to pick out a trustworthy seaman as watchman in port, who, as a reward for his duty during the night, is allowed to spend the whole day ashore. It was also in evidence that the cargo planks were in cretion and no oversight of their own-then in that case, neglect by the master of ordinary care in supplying and maintaining suitable machinery and instrumentalities for the work required of plaintiff, and in keeping the ways, passages, approaches and appliances in and about the same in a safe and secure condition, is a breach of duty for which the defendant would be responsible to plaintiff if he received injury through such neglect. Answer. I do not understand what is meant in this point by suitable machinery, or how it is applicable to this case. The question is as to the displacement of a gangway. If it means that the owners are responsible to the plaintiff for an injury happening through the |