West Chester & Philadelphia Railroad v. McElwee

67 Pa. 311, 1871 Pa. LEXIS 105

• Court: Supreme Court of Pennsylvania
• Decided: May 8, 1871
• Status: Published

Opinion

The opinion of the court was delivered,

by Williams, J.

There was no error in admitting the testimony of Charles Rourke, that the track had been moved since the date of the accident/ If it tended to show, as suggested, that the track was originally too near the office and shanty to permit the cars to be run on it without danger, then it was evidence of a fact proper for the consideration of the jury in determining whether due and reasonable care had been used by the company to avoid the accident. If the proximity of the track to the buildings did not increase the danger why was it moved ? And if it did, then a higher degree of care was necessary in order to avoid accident, and in this aspect the evidence was properly received.

The only other question presented by the assignments of error is, whether the court, under the facts disclosed by the evidence, should have instructed the jury that' the decedent was guilty of negligence which contributed to his death, and the plaintiffs were not entitled to recover.

The law is well settled that what is and what is not negligence in a particular case is generally a question for the jury and not for the court. It is always a question for the jury when the measure of duty is ordinary and reasonable care. In such cases the standard of duty is not fixed but variable. Under some circumstances a higher degree of care is demanded than under others. And when the standard shifts with the circumstances of the ease, it is in its very nature incapable of being determined as matter of law, and must be submitted to the jury to determine what it is, and whether it has been complied with. But when the standard is fixed, when the measure of duty is defined by the law, and is the same .under all circumstances, its omission is negligence, and may be so declared by the court. And.so, when there is such an obvious disregard of duty and safety as amounts to misconduct, the court may declare it to be negligence as matter of law. But where the measure of duty is not unvarying, where a higher degree of care is demanded under some circumstances than under others; where both the duty and the extent of its performance are to be ascertained as facts, a jury alone can determine what is negligence, and whether it has been proved: McCully v. Clark & Thaw, 4 Wright 399; Citizens’ Ins. Co. v. Marsh, 5 Id. 386; North Penna. Railroad Co. v. Heileman, 13 Id. 60; Pittsburg and Connellsville Railroad Co. v. McClurg, 6 P. F. Smith 295; Glassey v. Hestonville, &c., Passenger Railway Co., 7 Id. 172; Penna. Railroad Co. v. Barnett, 9 Id. 269; Johnson v. Bruner, 11 Id. 58.

These principles are of easy application to the evidence in this case, and clearly show that the question of decedent’s negligence was one of fact for the jury, and not of law for the court. The evidence did not show that he omitted any duty defined or prescribed by law; nor did it show any such disregard of duty and safety on his part as made it incumbent on the court to declare it to be negligence. His only standard or measure of duty was ordinary and reasonable care; and what that was, under the circumstances, and whether he complied with' it, could only be determined by the jury as a matter of fact. When, therefore, the court was asked to instruct the jury that the decedent was guilty of negligence, and the plaintiffs were not entitled to-recover, the instruction was properly refused. • It could not have' been given without determining, as matter of law, what care and caution a man of ordinary and reasonable prudence would have exercised in circumstances similar to those in which the decedent was placed. The question of decedent’s negligence was therefore rightfully submitted to the jury; and as no complaint is made of the manner in which it was submitted, the judgment must be affirmed.

Judgment affirmed.