Philadelphia, Wilmington & Baltimore Railroad v. Fronk

Alvey, O. J., filed the following dissenting opinion: I regret that I am not able to agree with the majority of the Court in the opinion filed by them. In my opinion, the evidence was of a character to require the case to be submitted to the jury, and that there was no error in so submitting it to them. That the crossing was one well established, and much used by many persons, were facts shown by several witnesses, and it was and is of a nature to require caution on the part of the defendants to avoid the occurrence of accidents. Though the crossing is not of' a public highway, in the legal sense of the term, yet it was provided for, and has been regularly repaired and maintained by the defendant as an ordinary crossing of its road ; and since the accident complained of they have recognized the propriety, indeed, the necessity, of giving proper signals of the approach of trains to this crossing, by erecting a whistle-post at that point.

There is no pretence that any signal whatever was given by those in charge of the train on the occasion of the accident, though the proof shows that the train was running at a very high “and dangerous rate of speed, and that the power of vision was greatly obstructed in that immediate locality by the smoke from the neighboring charbon works. I think there was evidence of negligence on the part of the defendants, and that the jury were the proper tribunal to consider the ³⁵⁰ effect of it, as applicable to the circumstances of the case. The fact that the crossing was of a private way, as distinguished from a public highway, can certainly afford the defendant no immunity from liability for its negligence at such crossing. It was simply a'question whether reasonable care had been observed by the defendants, under all the circumstances of the case, for the safety of those lawfully using the crossing at the time of the accident ; and that was a question of fact exclusively for the jury.

Byrne vs. N. Y. Cent. & Hudson River R. R. Co., 6 Cent. Rep., (N. Y.,) 392. In the view taken by the majority of the Court, all question in regard to alleged contributory negligence on the part of the plaintiff, is rendered wholly immaterial in the disposition of the case. I deem it unnecessary, therefore, to make any referenee to the evidence upon that subject.

(Piled 21st June, 1887.)