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MUSCARELLA V. NEW YORK CENTRAL R. R. CO.

Negligence-permissive crossing-contributory negligence.

When a railroad company has for years without objection permitted the public to cross its tracks at a certain point not in itself public crossing, it owes the duty of reasonable care towards those using the crossing.

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If there is evidence that by the consent of the railroad company there was a well-defined path across the tracks at the place of the accident where people had gone for a long time without objection the jury is justified in finding that there was a permissive crossing, and the railroad would be required to perform certain duties in approaching the crossing.

It is elementary law that negligence is the absence of care according to the circumstances: that where the degree of care required is fixed and determined, the same under all circumstances, then whether there is evidence that that degree of care has been exercised, is a question of law for the court, but where the care required varies with the circumstances, where a higher degree of care is required under some circumstances than under others, then what degree of care is required is a question of fact for the jury.

Motion for new trial and judgment n. o. v. No. 18, September Term, 1917, C. P. Erie County.

tiff.

W. Louis Schlesinger and Brooks, English & Quinn for plain

Gunnison, Fish, Gifford & Chapin for defendant.

ROSSITER, P. J., November, 1918.

This is an action brought by Mary Muscarella (now Scavaga) to recover damages from the New York Central Railroad Company by reason of the death of her husband, Francisco Muscarella, which she alleges was occasioned by the carelessness and negligent manner in which the defendant company conducted one of its trains over a permissive crossing at North East in this County.

The whole case was submitted to the jury who rendered a verdict in favor of the plaintiff for $5,000.00. Whereupon the defendant made a motion for a new trial and judgment Non Obstante Veredicto, its principal contention being: First that there was not sufficient evidence in the case to establish a permissive crossing, and, Second, that under the evidence submitted by the plaintiff, the deceased was guilty of contributory negligence.

Muscarella v. New York Central R. R. Co.

Plaintiff avers that for many years there was a foot path crossing the several tracks of the defendant company at a point seven hundred yards west of South Pearl Street in the Borough of North East, over which foot pedestrians had for many years crossed the defendant's tracks without "let or hindrance;" that this path was habitually used by the public for many years without objection on the part of the defendant company, the defendant during all that time permitting such use and acquiescing therein; and that on the early morning of December 3, 1916, Francisco Muscarella, husband of the plaintiff, while attempting to cross on this permissive crossing, was struck by an eastbound engine of the defendant company and instantly killed; that the defendant company was negligently conducting the train at an unusually high and dangerous rate of speed; that the defendant neglected to give any warning, by ringing the bell or blowing the whistle, or in any other wise, of the approach of the said train, and that there was no headlight on the engine.

The evidence supporting the contention that there was a permissive crossing briefly summarized was to the effect: That everybody goes across there; that there was a beaten path on the tracks that had been there for from eight to twelve years; that it could be seen plain enough until the stone ballast was put in; that some foot travelers went to the Nickel Plate tool house over this path, some to the grape juice plant, and some to the New York Central tool house; that forty or fifty people at a time went through morning, noon and night; that there was no objection made; that after the stone ballast was put in, the path showed plainly up to the stone on both sides of the tracks and that the paths on each side of the tracks are directly across one from the other; that most people that live in the lower end of town on the west side go over this path and that they went over it morning and night; that there was a pathway all the way across before the ballast was put in; that stone or cinders would not show a path as gravel or dirt would, but that before the stone and cinders were put in there was a definite path crossing the tracks; and that when snow was on the ground there was a definite path at this place all the way over the tracks.

On the part of the defendant it was denied that there was any path there at the time the deceased was killed or at any other time; that there were frequently cars on the siding which would prevent people from crossing over at the place where deceased met his death, and that if people did cross there there was no particular point of crossing and not sufficient travel to make a definite path.

The evidence in support of the allegation of negligence on the part of the defendant was to the effect that the train was running

Muscarella v. New York Central R. R. Co.

about sixty miles an hour; that there was no warning or signal given of its approach to the crossing; and that there was no headlight on the engine.

The defendant denied these allegations of negligence and offered testimony to the effect that the train was going about forty miles an hour; that it was running slower than usual that morning because it was following a train ahead of it; that the headlight was burning at the time; that the whistle was sounded in the vicinity of the tower, and that the bell was ringing automatically by air.

As establishing the contributory negligence of the plaintiff the defendant offered testimony to the effect that at this point the tracks were practically straight for twelve miles with a slight rise in the ground; that there was a clear vision of two miles to the west; and that to the east a train could be seen a couple of thousand feet; that at the time of the accident it was "pretty good" daylight; that the train and headlight could be and were both seen one thousand feet away, and, inferentially, that the ringing of the bell and the sounding of the whistle could have been heard had deceased listened.

The evidence relied upon to rebut the charge of contributory negligence on the part of the deceased was to the effect that the deceased stopped and looked before he committed himself to the crossing; that there was no warning given; that at the time it was a little bit dark (that the sun did not rise till 7:31 and the accident happened at 7:02 A. M.) foggy and beginning to rain: that the train could not be seen further that fifty feet; that the wind was blowing; that the train was not making much noise-"running quietly;" and that the plaintiff was struck in half a second-snap of a finger-after the train was visible.

As to the permissive crossing we told the jury that "when a railroad company has for years without objection permitted the public to cross its tracks at a certain point not in itself a public crossing it owes the duty of reasonable care towards those using the crossing; but when a permissive crossing really exists there ought to be no difficulty in producing evidence as to its exact location, else how can the railroad company or its employees be presumed to know when and where they ought to give warning of the approach of a train to such crossing. Does the weight of the evidence lead you to conclude that there was a well-defined pathway up to and away from these tracks and across the tracks where these people went? Or do you find that they went across there promiscuously and at no particular place? If you find that by the consent of the railroad company there was a well-defined path across these tracks where people had gone for a long time without objection

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Muscarella v. New York Central R. R. Co.

then you would be justified in finding that there was a permissive crossing, and the railroad would be required to perform certain duties in approaching the crossing. But if you find there was no well-defined and certain point that is, that there was no welldefined and certain point of crossing-but that people went across there generally, as some of them say, sometimes in one place, sometimes in another, and crawled under the cars and went around the cars,,but there was no certain place of their crossing the tracks, then we say that such evidence is insufficient to establish a permissive crossing; and in the event that you find that the evidence is insufficient to establish a permissive crossing, then you need proceed no further with the case now before you, for in that event the deceased was a trespasser that morning, and the railroad company owed him no duty relative to the manner in which they should approach the place where he was injured and killed with their train."

We see nothing wrong with this instruction and although the defendant complains in its motion for a new trial that the court erred in its charge to the jury, and particularly in relation to what constitutes a permissive crossing, it has not been pointed out to us in what way that error occurred. We believe that Forno vs. Pennsylvania Railroad Company, 234 Pa., 538, is authority for the instruction we gave the jury on this subject.

It is elementary law that negligence is the absence of care according to the circumstances; that where the degree of care required is fixed and determined, the same under all circumstances, then whether there is evidence that that degree of care has been exercised, is a question of law for the court, but where the care required varies with the circumstances, where a higher degree of care is required under some circumstances than under others, then what degree of care is required is a question of fact for the jury.

It is also elementary that when the facts are not clear and simple, or are in dispute, or where the existence of contributory negligence depends upon inferences to be drawn from the evidence, the question must go to the jury.

Applying these elementary principles to the case at bar, it is clear to us that the degree of care required of both the plaintiff and defendant under the evidence in this case varied with the circumstances; that a higher degree of care was required of both parties there that morning than under ordinary circumstances, but how much care was required of the defendant company in conducting its train across a permissive crossing, where, as testified, a large number of people crossed morning, noon and night, when it approached that crossing early on a foggy morning, just as it was commencing to rain, before it had become fairly light, we could

Muscarella v. New York Central R. R. Co.

not say as a matter of law, as we know of no rule of law defining and fixing the degree of care required under such circumstances as these, neither could we say as a matter of law what the duty of the deceased was as he approached the crossing under such circumstances. Initially, of course, to, stop, look and listen, and to continue looking and listening all the way across, as this degree of care is fixed and determined, the same under all circumstances and the law requires that these precautions be taken by one about to cross over a steam railroad at grade. But how could the court. further say as matter of law, after these initial duties were performed that the circumstances there that morning, such as rain, fog, darkness, absence of headlight, etc., might not combine to deprive deceased of that knowledge, which this fixed and determined degree of care was designed to convey.

It is also clear that the controlling facts themselves-let alone the inferences to be drawn from them were in dispute. It was directly affirmed and denied that there was a permissive crossing; it was directly affirmed and denied that the defendant was negligent; it was directly affirmed and denied that the deceased was guilty of contributory negligence, and the evidence in support of either side of any one of these three issues was sufficient, if true, to establish the contention of that side as a fact.

It seems, therefore, conclusive to us not only that the degree of care varied according to the circumstances there that morning and that a higher degree of care was required under the circumstances there than ordinarily, but that the pertinent facts were all in dispute.

Hence these questions were for the jury and the case of Carrol v. Pennsylvania Railroad Company, 12 W. N. C. 348, and subsequent cases to the same effect, do not apply here.

There was evidence relative to trespass signs and at the argument for a new trial the fact that such evidence appeared was urged as proof that no permissive crossing existed, but that if people did cross at this point the railroad company had performed its full duty relative to warning them to stay off, but there was no evidence that there were trespass signs in the immediate vicinity of the alleged permissive crossing, or where these signs actually were, or how long they had been erected, neither did the defendant at that time ask the Court for specific instructions relative to them, nor frame a point based on such testimony, and after we had charged the jury relative to the general propositions, we asked the attorneys for both the plaintiff and defendant if there was anything further either of them desired the court to instruct the

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