Gates v. Pennsylvania R. R.

Citations

• 154 Pa. 566
• 32 W.N.C. 333
• 26 A. 598
• 1893 Pa. LEXIS 937

Syllabus

<p>' Appeals — Bes judicata — Acts of May 9, 1889, and May 20, 1891</p> <p>' A judgment upon an appeal taken by one of the parties is no bar to a subsequent appeal by the other party, in which different errors are assigned. . In an action for damages against a railroad company, the defence was (1) that the action should have been against the township, inasmuch as the accident occurred within the lines of a public highway, and (2) that plaintiff’s contributory negligence was a bar to his recovery. The court submitted the second question to the jury and reserved the first. The jury rendered a verdict for plaintiff, but the court entered judgment for defendant non obstante veredicto. Upon appeal by plaintiff the judgment was reversed, and judgment was entered upon the verdict. Subsequently defendant appealed, assigning as error the submission of the question of plaintiff’s contributory negligence to the jury. Held, that defendant was entitled to an appeal. There is nothing in the acts of May 9, 1889, P. L. 158, and May 20, 1891, P. L. 101, to prevent such appeal.</p> <p>Negligence — Contributory negligence — Evidence—Question for jury.</p> <p>Where the measure of duty is ordinary and reasonable care, and where the degree of care varies according to the circumstances, the question of negligence is for the jury; but where facts constituting negligence are either admitted or conclusively established by undisputed evidence it is the duty of the court to declare the law applicable thereto.</p> <p>A railroad company constructed an overhead bridge for the passage of a public highway, leaving the wing walls running out from the end of the bridge unguarded by a railing. Plaintiff, employed as a carpenter by the railroad company, while on his way to his work before daylight on a winter morning, fell over one of the wing walls and was injured. He testified that he was walking rapidly, thinking he would “ strike the bridge near about its centre,” but ran against something on the l