(108 A.) Pa. 632, 33 Atl. 704; Allegheny City v. Millville, etc., Ry., 159 Pa. 411, 28 Atl. 202; Cochranton Boro. v. Cochranton Telephone Co., 41 Pa. Super. Ct. 146. (265 Pa. 282) MARTIN v. PENNSYLVANIA R. CO. (Supreme Court of Pennsylvania. June 21, 1919.) [2-4] Where the consent is granted upon conditions precedent the railway company's compliance therewith is essential to the valid-1. RAILROADS 327(12)—AUTOMOBILE PAS SENGER RESPONSIBLE FOR OWN NEGLECT. Though a passenger in an automobile apdriver's negligence, he is responsible for his proaching a railroad is not chargeable with the own lack of reasonable care. ity of the grant; but where it relates to conditions subsequent, such conditions must be reasonable and within the power of the company to perform. Millcreek Township v. Erie Rapid T. Ry. Co., 216 Pa. 132, 64 Atl. 901. See, also, Johnstown T. Co. v. Ferndale 2. RAILROADS 327(12)-DUTY OF PASSENBoro., 47 Pa. Super. Ct. 461. In such case the presumption is in favor of the validity of the subsequent condition imposed, on the assumption that the municipal authorities have acted properly and in good faith. McKeesport v. McKeesport & R. P. Ry. Co., supra; W. Conshohocken Boro. v. Conshohocken Elec. L. & P. Co., 29 Pa. Super. Ct. 7. However, it is a matter over which the courts have jurisdiction, and any municipal action relating thereto which is clearly arbitrary or oppressive will be declared void. In the present case, the power of readjusting the rates is expressly vested in the borough council, but, as it relates to a condition subsequent, it must be reasonably exercised, so as not to be oppressive or confiscatory, or to have an inevitable tendency to confiscation. See Penna. R. R. Co. v. Phila. County, 220 Pa. 100, 68 Atl. 676, 15 L. R. A. (N. S). 108. [5, 6] Plaintiff's case fails because the $1,200 annual charge is not shown to be oppressive or confiscatory. Such fact does not appear merely because it is a decided increase over earlier charges, as they may have been much too low, and conditions have changed. Under the circumstances the borough is entitled to a reasonable latitude, and its action will not be declared void unless clearly oppressive; nor will the court, except in case of a manifest abuse of discretion, substitute its judgment for that of the body to whom the parties committed the right of adjusting the rates. See Carlisle & M. St. Ry. Co.'s Appeal, 245 Pa. 561, 91 Atl. 959; Cameron v. Carbondale, 227 Pa. 473, 76 Atl. 198; Scranton City v. Straff, 28 Pa. Super. Ct. 258. [7] The annual charge is the price paid by the company for the rights and privileges granted, and amounts to a purchase of the franchise, which the borough had a right to sell. McKeesport v. McKeesport & R. P. Ry., supra. It rests upon contract, and is in no sense a tax, and the right of a borough to impose taxes upon a street railway company is not involved. Neither is it a license fee, collectable under the police power of the municipality. Nor is it governed by the rules applicable to taxes and license fees. GERS IN AUTOMOBILE TO WARN OF APPROACHING DANGER. It is the duty of each person traveling in an automobile and engaged in a common purpose to use ordinary care to safeguard the danger at a grade crossing. party and give warning of the approaching 3. RAILROADS 327(12)-PASSENGER IN AUTOMOBILE GUILTY OF CONTRIBUTORY NEGLIGENCE AS MATTER OF LAW. A passenger traveling on a front seat of an automobile on a clear day who without protesting of driver's failure to stop, look, and listen at a railroad crossing in plain view, and who did not warn driver of approaching train until a collision was inevitable, was guilty of contributory negligence as a matter of law. 4. RAILROADS 327(12)-DEGREE OF CARE REQUIRED OF PASSENGER IN AUTOMOBILE. Though a passenger is not bound to the same high degree of care as the driver of an automobile approaching a crossing, he must exercise a reasonable degree of watchfulness, and, when the occasion requires, warn the driver of threatening danger, and may be as a matter of law chargeable with contributory negligence even where he has done nothing. Simpson, J., dissenting. Appeal from Court of Common Pleas, Fayette County. Trespass by Pearl Belle Martin against the Pennsylvania Railroad Company to recover damages for the death of plaintiff's husband. From a judgment refusing to take off the compulsory nonsuit, plaintiff appeals. Affirmed. Argued before BROWN, C. J., and MOSCHZISKER, FRAZER, WALLING, SIMPSON, and KEPHART, JJ. E. C. Higbee and George Patterson, both of Uniontown, for appellant. R. W. Playford, of Uniontown, for appellee. WALLING, J. This case grows out of a grade crossing accident. Defendant's railway extending southerly from Connellsville crosses the public highway in question at grade, with a main track and a siding, the The appeal is dismissed, at the costs of ap- latter being about 15 feet west of the former. pellant. To the west of the siding the view to the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes north is obstructed by a building, and that to the south by a high board fence along the south side of the highway, which extends east to within 25 feet of the main track. The east-bound traveler has a good view of the tracks to the south while passing over the 25 feet. The highway is paved with brick and practically level west of the crossing. On the afternoon of August 22, 1914, James Coldren took his Ford car, and with three other men, including Clarence Martin, plaintiff's husband, drove from Collier to Scottdale to witness a ball game. On the return home they came east by this highway, Coldren driving the car, and Martin sitting at his right on the front seat. It was broad daylight, and, as they approached the crossing, so far as appears, the railroad tracks in front of them for 300 feet were in plain sight. They were going about 10 or 12 miles an hour, and at that speed, without stopping or even hesitating to ascertain the movement of trains upon the tracks, drove past the driven on to his injury, this is negligence which will bar recovery." A passenger is chargeable with the driver's negligence in so far as he concurs therein, and failure to protest against reckless driv ing amounts to a concurrence. "A passenger who, having opportunity, fails to warn the driver of a known danger, and to protest against incurring it, is guilty of negligence. *** If he [the passenger] knew they were approaching this grade crossing, or by the exercise of reasonable care should have known it, in time to warn Mr. Rogers [the driver] thereof and failed to do so, he was negligent; in other words, a passenger who knowingly and without protest suffers the chauffeur to drive an automobile upon a railroad track without stopping to look and listen is negligent." Eline v. Western Maryland Ry. Co., 262 Pa. 33, 36, 104 Atl. 857, 858. In Brommer v. Pennsylvania R. Co., 179 Fed. 577, 582, 583, 103 C. C. A. 135, 140 (29 L. R. A. [N. S.] 924), it is stated that "It follows, therefore, that Henderson [the passenger] was under obligations to take due care of his own safety. He was not a passenger for hire. He was engaged in the common purpose of a pleasure ride with the driver of the machine. He knew they were approaching a railroad crossing. Being free from the engrossing work of operating the machine, and occupying a seat beside the driver, he was in an even better situation than Brommer [the driver] to look out for the safety of the machine. And, because Henderson joined with Brommer [to stop, look, and listen], we must hold him in a deliberate violation of this salutary rule guilty of contributory negligence." end of the fence, over the side track and the space between the tracks, and as the front end of the car approached the main track It collided with a rapidly moving north-bound engine thereon, by which Mr. Martin was fatally injured. The driver of the automobile totally ignored the rule requiring the traveler to stop, look, and listen before going upon a railroad track, and he was not requested to do so or cautioned by Martin or by either of the other passengers. Just an instant before the collision, and when too late to avoid it, Martin called the driver's attention to the on-coming train. The four men were engaged in a common purpose. However, it does not appear that the deceased was familiar with the crossing. There was evidence of defendant's negligence, but on the ground of Martin's contributory negligence the court below granted a compulsory nonsuit; and from its order re-ent case Martin sat on the front seat, where fusing to take off the same this appeal was taken. [3] The failure to stop, look, and listen before crossing a railroad track is the violation of a fixed legal duty, and a passenger who knowingly and without protest suffers the driver to do so is negligent. In the pres his means of observation were equal to the driver's. Whether or not he was familiar [1, 2] The holding is in harmony with our with the locality was not important, as the decisions; for, while a passenger is not tracks crossed the brick roadway in front of chargeable with the driver's negligence, he him, and he permitted the car to be driven is responsible for his own lack of reason- over the siding and on toward the main able care. The men were engaged in a com-track without protest, and only called attenmon purpose, and it was the duty of each to use ordinary care to safeguard the party and warn of approaching danger. Laudenberger v. Easton Transit Co., 261 Pa. 288, 104 Atl. 588; Dunlap v. Phila. R. T. Co., 248 Pa. 130, 93 Atl. 873. The opinion of the court by Mr. Justice Moschzisker in Hardie et ux. v. Barrett, 257 Pa. 42, 46, 101 Atl. 75, 76 (L. R. A. 1917F, 444), says: "The rule is well established that, when possible dangers, arising out of the negligent operation of a hired vehicle or a conveyance in which one is riding as an invited guest, are manifest to a passenger, who has any adequate opportunity to control the situation, if he sits tion to the train when the collision was inevitable. That Martin, passing along the highway that bright afternoon, saw or by the exercise of reasonable care should have seen the crossing in time to warn of the danger, is manifest. The evidence warrants no other conclusion. True, in case of death the presumption is that the deceased exercised due care, but here that is overcome by plaintiff's evidence. [4] In Vocca v. Penna. R. R. Co., 259 Pa. 42, 102 Atl. 283, plaintiff testified that before reaching the crossing he called upon the driver to stop, and we held the question of contributory negligence was for the jury; (108 A.) in Azinger v. Pa. R. R. Co., 262 Pa. 242, 105 Atl. 87, where an automobile approached the track on a down grade, and the evidence was conflicting as to local conditions and as to the distance the track at the crossing was visible. And we there hold that a passenger is not bound to the same high degree of care as the driver, and the fact that the former's attention is momentarily drawn to the side of the road does not necessarily convict her of contributory negligence; in other words, the passenger is not required to exercise the same high degree of care and constant watchfulness as the chauffeur. Nevertheless he must exercise a reasonable degree of watchfulness, and, when occasion requires, warn the driver of threatened danger, and he may, as matter of law, be chargeable with contributory negligence even where he has done nothing. For example, it would be negligence for a passenger not to warn the chauffeur whom he saw about to drive the car down a precipitous bank or in front of an approaching train; and the same is true where the passenger sees the chauffeur violating a fixed rule of law. We are not speaking of a situation where a sudden peril exists and is known to the chauffeur, who is trying to avoid it. There the passenger's silence is usually commendable. In the case at bar the peril did not arise until the law had been disregarded by attempting to cross the tracks, and actually crossing one and approaching the other, without stopping to look or listen. Martin should have given warning as they approached the first track and before the sudden peril arose. Such warning, if given and heeded, would have prevented this most unfortunate accident. The assignments of error are overruled, and the judgment is affirmed. SIMPSON, J. (dissenting). On August 22, 1914, Clarence Martin, whose widow is plaintiff in this case, went with James Coldren and two other friends from Collier to Scottdale, in this state. They were riding in a Ford automobile belonging to Coldren and his brother. On their return, which was by a different road from that used on the outward journey, Coldren was sitting on the left front seat driving the car, with Martin at his right, and the other two on the back seat. The top of the car was down, and the day was clear. As they reached Connellsville about 5 p. m., they passed under a trestle and came out on a level brick road at a point possibly 100 yards from defendant's railroad tracks. On the right-hand side of the road was a board fence, too high for the occupants of the car to look over, and through which it was difficult to see anything. It ran to within 20 or 25 feet of defendant's tracks. On the left-hand side of the road was a company store. The automobile was traveling at about 10 or 12 miles an hour, and when it reached the end of the fence for the first time its occupants could see southwardly along defendant's tracks, from which there was then coming one of defendant's trains, traveling at the rate of 40 to 45 miles an hour. Martin saw it and at once gave notice of the danger. Whether or not the automobile could have been stopped within the distance from the end of the fence to the track does not appear in the evidence; but Coldren, either fearing it could not or losing his head, turned the car to the left, the right front wheel went over the near rail of the track, the car was struck by the train, and Martin was killed. No signal was given of the approach of the train, and, so far as appears, there were no signs at the crossing indicating there was a railroad track at this point. There was no evidence to show Coldren was a careless or reckless driver; that decedent knew the tracks were there until the car passed the end of the fence, when he called out as above stated; that he knew Coldren was not going to stop, look, and listen; or that the automobile could not stop within the space between the end of the fence and the nearest rail of the track. The court below held the evidence was sufficient to go to the jury on the ground of defendant's negligence, but that it showed plaintiff was guilty of contributory negligence, and therefore entered a nonsuit, which it subsequently refused to set aside. In the majority opinion it is said, "so far as appears, the railroad tracks in front of them [the occupants of the automobile] were in plain sight" as they approached the crossing. This is true, but so also so far as appears they were not in plain sight, and on a question of contributory negligence, and especially in a case of death, the burden is upon the admittedly negligent defendant to show the excusatory facts, if any there be. So, also, conceding that a passenger "who knowingly and without protest suffers the driver to do so [i. e., violate the duty to stop, look, and listen] is negligent" and "he is responsible for his own lack of reasonable care," the question here was: Was decedent guilty thereof? No evidence so asserts, defendant's attempt to prove it wholly failed, and hence the legal principles should have no application. The majority opinion admits the decedent was "not required to exercise the same high degree of care and constant watchfulness as the chauffeur"; yet it deprives his widow of recovery because he did not, and this without any conclusive proof of a lack of reasonable care. Whether the case be viewed from the standpoint of the presumption that decedent exercised due care, or from the standpoint that the burden of proof of contributory negligence is on the defendant, in my judgment the majority opinion is erroneous; in fact, the case is decided in direct antagonism to both those principles. In Schaefer v. Consolidated Ice Co., 238 Pa. 367, 86 Atl. 193, and again in Carley v. Dexcar Coal Mining Co., 262 Pa. 405, 105 Atl. 651, we say: "It may be said that in case of death that presumption always obtains." And in Lotz v. B. & O. R. R. Co., 247 Pa. 206-209, 93 Atl. 274, 275: "The burden was on defendant to overcome by direct or positive evidence the presumption that the decedent had done all that the law required of him." In McManamon v. Hanover Tp., 232 Pa. 439, 81 Atl. 440, and Waltosh v. Penn. R. R. Co., 259 Pa. 372, 103 Atl. 55, we say a plaintiff is not required to prove freedom from contributory negligence, but only to present a case clear thereof; the burden of proof being on the defendant because, as we expressed it in Beatty v. Gilmore, 16 Pa. 463, 55 Am. Dec. 514. "He who avers a fact in excuse of his own misfeasance must prove it." "The tendency of our decisions is to hold a passenger responsible for his actual negligence he knows exists, and not for the result of mere in joining with the driver in testing a danger inaction in failing to discover dangers of which he is ignorant, but might have discovered had he been giving attention to the roadway ahead of him." But, even if it be assumed that decedent knew or should have known of the existence of the railroad tracks, defendant's contention should fail. As there is no evidence, nor even pretense of evidence, that decedent actually knew Coldren intended to violate the rule of "stop, look, and listen," or that decedent by word or deed joined in or suggested any such violation, it follows that his alleged contributory negligence could only have arisen after he knew or should have known Coldren did not intend to stop or could not stop before the railroad tracks were reached. It was essential, therefore, to ascertain when Decedent was not the driver of the auto- decedent was bound as a matter of law to mobile, and if, when the emergency arose, know this. Clearly not when the automobile he had undertaken to interfere with Coldren was 300 feet, 200 feet, or 100 feet from the in his driving, it is more than probable a tracks; for everybody knows an automobile disaster would have occurred which would traveling at the rate of 10 or 12 miles an have killed or seriously injured all its oc-hour can easily be stopped a number of times cupants. At most, he was obliged to give warning and to protest when in the exercise of reasonable care he knew or should have known of Coldren's negligence, and, as already stated, there was no evidence from which, as a matter of law, it could be decided he did not. In Vocca v. Penn. R. R. Co., 259 Pa. 42-45, 102 Atl. 283, quoting from a Rhode Island case, we said: "It cannot be said as a matter of law that such a guest or passenger is guilty of negligence because he has done nothing. In many such cases the right degree of caution may consist of inaction. In situations of great and sudden peril, meddlesome interference with those having control, either by physical act or by disturbing suggestions and needless warnings, may be exceedingly disastrous in results. While it is the duty of such guest or passenger not to submit himself and his safety solely to the prudence of the driver of the vehicle, and that he must himself use reasonable care for his own safety, nevertheless he should not in any case be held guilty of contributory negligence merely because he has done nothing."" And in Azinger v. Penn. R. R. Co., 262 Pa. 242, 105 Atl. 87: within any of those distances. Evidently, therefore, he was obliged to protest only when the automobile was so close to the tracks, considering its rate of speed, that he knew or should have known it would not or could not be stopped before reaching them. But then it would have been too late to effectively protest, and hence the law which does not require vain things will not punish plaintiff because decedent did not vainly pro-. test when it would have been useless to do so. Moreover, as stated above, there was no evidence within what space the car could have been stopped when traveling at that rate of speed, that decedent knew what space was required, or that, before seeing the oncoming train, he had any reason to think it could not have been stopped after passing the end of the board fence and before reaching the tracks. Hence there was no evidence of a failure to protest after decedent knew or should have known Coldren intended to run the risk; and hence also there was no basis for the nonsuit. For the reasons stated, I dissent from the judgment of affirmance. (108 A.) (265 Pa. 251) COMMONWEALTH v. TENBROECK. June 21, (Supreme Court of Pennsylvania. 1919.) |6. CRIMINAL LAW 776(4)-CHARGE AS TO EFFECT OF DEFENDANT'S GOOD REPUTATION ERRONEOUS. A charge is erroneous, which naturally leaves with the jury the impression that they should convict, if satisfied of defendant's guilt from the other evidence, notwithstanding evi 1. CRIMINAL LAW 486-PHYSICIAN'S OPIN- dence as to his good reputation. ION AS TO HOW LONG DECEASED HAD BEEN 7. CRIMINAL LAW 822 (10)-CHARGE AS TO DEFENDANT'S GOOD REPUTATION TO BE CONSIDERED AS A WHOLE. In a trial for homicide, a physician, who saw the deceased shortly after his death, was competent to express an opinion of approxiAll of the charge on the subject of evimately how long deceased had been dead, judg-dence as to defendant's good reputation should ing by the amount of heat found in the body. be considered, and if it clearly and correctly states the rule there is no error, although a LAW 406(5)-VOLUNTARY single sentence thereof, standing alone, might be misunderstood by the jury. 2. CRIMINAL In a trial for homicide, wherein defendant ADMISSIBLE. Where defendant, in his trial for the killing of his father, claimed that he had come downstairs and found his father dead and four negroes standing about him, it was competent to prove by neighbors having means of observation that no persons like those described by defendant were seen to go to or from the deceased's home, or in that neighborhood, that afternoon. 4. HOMICIDE 268-CIRCUMSTANTIAL EVIDENCE SUFFICIENT TO MAKE GUILT A JURY QUESTION. In the trial of defendant for the killing of his father, where the case rested on circumstantial evidence as to defendant being alone in the house when his father was killed, as to his statement that he was not living at home because of his father's ill treatment, and his statement that, after hearing a shot, he came downstairs and found his father dead, with four negroes standing over him, notwithstanding defendant's good reputation, made a case for the jury, so that a verdict in his favor could not have been directed. Evidence of good reputation may of itself work an acquittal, by creating a reasonable doubt of guilt, where in the absence of such evidence there would be no such reasonable doubt, and such good reputation is substantive evidence in favor of innocence, to be considered by a jury in connection with the other evidence, and when so considered, if there is a reasonable doubt of guilt, there must be an acquittal, but if, when so considered, jury is satisfied of guilt beyond a reasonable doubt, they should convict. 10. CRIMINAL LAW Where a conviction was of murder in second degree, the case ceased to be a capital case, and a temporary separation of the jury becomes unimportant, and the court properly refused to arrest the trial to investigate such complaint, but properly did so after verdict, when it found no harm had resulted therefrom to defendant. 11. CRIMINAL LAW 854(1)-NECESSITY OF KEEPING JURY TOGETHER IN CAPITAL CASE. In a case where the jurors had been charged with the prisoner's life, no pains should be spared to secure a strict observance of the rule to be kept together and free even from a suspicion of improper influence. 12. CRIMINAL LAW 865(1)-REMARKS OF COURT NOT COERCION OF JURY, INVALIDATING CONVICTION. Where the jury in a trial for homicide, after deliberating 48 hours, came into court and reported their inability to agree, whereupon the trial judge explained the nature of the case and the importance of reaching a verdict, his remark, "You must agree," with the injunction to continue their deliberations, and stating that, if any juror was physicially unable to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |