to an infant of tender years by merely lowering the gate; he should go further and give her the warning that it is proper to give to a child in the circumstances in which it is placed. Plaintiff, a child of tender years, was injured by being struck by a train at a point where defendant's railroad crossed a street at grade. A flagman was stationed at the street and lowered the gates while a train on the west bound track passed; that as the train was passing a little girl of seven years came to the crossing, and as the gates did not extend over the sidewalk and were constructed in such a manner as to enable her to walk under them, she either came by the sidewalk or under the gate and stood by the flagman. When the train passed, she walked with him to the east track, where he stopped, but she kept on as if to cross it; he called her back, and she returned and stood near, facing him, and while thus situated an incoming train struck and seriously injured her. It was held that the plaintiff could recover. The court said: "Injury to a child is a misfortune without remedy in the absence of negligence on the part of him who caused the injury; but if the latter be guilty of negligence the heedlessness of danger by the child is no protection to him. The defendant did give notice to the public, that is to all capable of comprehending the notice, of the coming train; it gave no notice to children so young as to render them incapable of understanding it. When the flagman saw this child going into danger, notwithstanding the notice, it was his duty so far as he could do so with regard to his other duties to protect it." 111 Where a person who was about to cross a railroad track is suddenly confronted by a train, and steps back to a position which he thought safe, and the gateman regarding his position as perilous runs forward with a warning to get back, and his warning not being heeded attempts to force him back, and in the struggle the person is thrown under the approaching train, as the struggle is the proximate cause, there can be no recovery.1 112 It is not negligence per se for a railroad company not to III Jones v. Harris, 186 Pa. 469 (1898.) 112 McAnally v. Pennsylvania R. R., 194 Pa. 464 (1900.) guard a crossing with a flagman or watchman. It is only one of the elements to be considered with others in determining whether the company is negligent.113 Crossing Over Sidings. 171. A person who crosses over a private siding at a public crossing without stopping, looking and listening, when he knows, or ought to know, that the siding is used for moving cars, is guilty of contributory negligence. Defendant was struck by a couple of cars which were being shunted over a crossing, just as he was about to step on the track. Before attempting to cross he stood talking at a point about fifty feet from the crossing, which was being used at the time in shifting cars. He walked from this point about one hundred and seventy-seven feet, and when within a few feet of the tracks he had an unobstructed view of the track for about two hundred feet. He was familiar with the street and crossing and the ordinary use of the siding, and had been for years. The cars which struck him were coming at a speed of about five or six miles an hour. It was held that the plaintiff was not entitled to recover.114 A railroad company is not negligent in shifting cars on to a siding, by shunting them in detached from the engine.115 Negligence of Driver of Vehicle Not Imputed to Occupants. 172. The negligence of the driver of a vehicle at a railroad crossing cannot be imputed to the occupants of the vehicle.118 A passenger in a street car approaching a grade crossing of a railroad, is not bound to look out and listen for approaching trains, and is under no duty to jump off the car in apprehension of a possible collision. After a street car had stopped about seventy-five feet from the grade crossing, the watchman raised the gates, the car started, and when it reached the track a second locomotive following the one that had passed struck the car, and a passenger, 113 Seifred v. Pennsylvania R. R., 206 Pa. 399 (1903.) 116 Jones v. Lehigh & New England R. R., 202 Pa. 81 (1902.) who was crippled in both feet, was injured. It was held that it was error for the trial court to charge that if plaintiff, by looking out, could have learned whether a locomotive was approaching, and could have gotten off before the collision, and did not do so, he would be guilty of contributory negligence, and could not recover.1 Evidence. 117 173. Although the weight of evidence as to whether proper notice was given of the approach of the train at the crossing may be with the defendant, yet the case must be submitted to the jury if three witnesses for the plaintiff testify that they were listening for some signal by bell or whistle of the approach of the train, and heard none.118 It is error to admit the opinion of witnesses to show that the crossing was dangerous, where the facts disclosed by the evidence give an intelligent description of the situation.119 Where there are two places at which a person approaching a grade crossing might have stopped, looked and listened, and the relative advantages and disadvantages of each place can only be described in a general way, it is proper for witnesses who are familiar with both places to supplement their description with their opinion. The general habit of the public to stop, look and listen at one of the two places is persuasive evidence that that place is the right one.120 A witness will not be permitted to testify as to the duties of railroad engineers at railroad crossings unless he is an engineer, or is qualified otherwise on the subject.121 117 O'Toole v. Pittsburgh & Lake Erie R. R., 158 Pa. 99 (1893.) 118 Kuntz v. New York, Chicago & St. Louis R. R., 206 Pa. 162 (1903.) 119 Seifred v. Pennsylvania R. R., 206 Pa. 399 (1903.) 120 Cookson v. Pittsburgh & Western Railway, 179 Pa. 184 (1897); 27 Pitts. 394 (1897.) 121 Born v. Philadelphia & Reading R. R., 198 Pa. 409 (1901.) CHAPTER XXV. NEGLIGENCE-FRIGHTENING HORSES. 174. Frightening Horses. Frightening Horses. 174. The blowing of a whistle by a locomotive engineer is a lawful act; the emission of steam and smoke, where steam propels machinery is a necessary incident of the use of steam, and therefore not of itself unlawful. Both the blowing of the whistle and the escape of steam and smoke may be negligent, and, therefore, unlawful according to circumstances. If the circumstances themselves do not warrant an inference of unlawful use, the mere fact that an accident was caused by either is not sufficient to convict of negligence. Deceased was driving on a country road near a deep cut of a railroad. A train had stopped at a station four hundred yards from the cut, and then started toward the cut. When the locomotive was in the cut, the vehicle on the highway was not visible to the engineer, and the railroad in front of him was visible only for a short distance, because of the curve. As the engineer approached the cut he blew the whistle loudly when entering, and when in the cut, smoke and steam in large quantities escaped; the deceased, being on the highway above, his horse took fright, either because of the whistle or the smoke or because of both. It was held that the plaintiff was properly non-suited.1 The court will not reverse a verdict and judgment in plaintiff's favor, where it appears from his evidence that after he had crossed the tracks his horse became frightened by the escape of steam and backed into danger again; that the steam complained of was not the usual and unavoidable escape from 1 Webb v. Philadelphia & Reading Ry., 8 Del. 413 (1902); 202 Pa. 511 (1902.) a locomotive, but from a heating apparatus for passenger cars situated at or near the crossing, and that the steam hung about the point of escape to a greater degree than usual on account of the dampness and fogginess of the morning.2 Plaintiff averred that while he was driving a team of horses, defendant's engineer, on a dummy engine, sounded the whistle of the engine in an unusual and extraordinary manner as he approached plaintiff's wagon, which was on the other track, and that plaintiff's horses were thereby frightened and ran in front of the engine. It was held that the case was for the jury.3 Plaintiff, in approaching a railroad crossing, stopped about three hundred feet, at a point where she had a view of the tracks. She then proceeded. From a point on the highway, fifty-five feet from the tracks to the tracks, there was an unobstructed view of the railroad for a distance of five hundred feet. When plaintiff was about to go upon the crossing a hand-car approached and frightened her horse, causing him to turn sharply and upset the carriage. There was no collision between the hand-car and the carriage or horse. Several witnesses testified that the point where the plaintiff stopped was not the usual place for stopping. It was held that plaintiff was guilty of contributory negligence, and that a non-suit was properly entered.1 A turnpike company operated a steam passenger railway on its road. Plaintiff was sitting on top of a load of hay, driving along the turnpike, when he saw a dummy engine coming in the opposite direction. The horses became frightened, and flunging around broke the front wheels of the wagon and ran away, and plaintiff was thrown to the ground and seriously injured. He testified that his horses took fright when the dummy engine was about thirty or forty yards off; that he signalled the conductor and engineer to stop, but they disregarded him; smiled in his face and made no effort to shut off the escaping steam, the cause of his horses' fright. It was held that there 2 Mendenhall v. Philadelphia, Wilmington & Baltimore R. R,. 202 Pa. 427 (1902.) 3 Lott v. Frankford & Southwark Pass. R. R. Co., 159 Pa. 471 (1894.) 4 Plummer v. New York & Hudson River R. R., 168 Pa. 62 (1895.) |