The opinion of the court was delivered, July 6th 1869, by
Williams, J.
This was an action brought by the plaintiff below to recover damages for an injury alleged to have been occasioned by the negligence of the Pennsylvania Railroad Company in not giving notice by an alarm-whistle or other signal of the approach of its passenger-train to the crossing where the accident occurred. The public road between Berry and Latrobe crosses the railroad, about two miles from the latter place, by a bridge 19 feet above the track, constructed of wood and built in the usual manner. The plaintiff was travelling along this road, and while driving over the bridge, the express passenger-train from Philadelphia going west passed under it, whistling as it passed, at which his horses took fright and ran away, overturning the carriage and throwing him out, in consequence of which he was seriously and permanently injured. A hill on the east side of the public road extending along it for the distance of about 74 rods, obstructs the view of the railroad, but it can be seen five or six rods from the bridge. As the plaintiff was approaching the crossing he stopped twice and listened for trains. About 100 rods east of the bridge there is a whistling-post, and it was usual for trains going west to sound an alarm-whistle as they passed, but at the time of the accident the whistle was not sounded until the train was passing under the bridge.
The first question presented by the assignments of error is, whether the court erred in refusing to charge that it was not such negligence on the part of the railroad company in not sounding the alarm whistle on approaching the bridge as will render it liable for the injuries which the plaintiff received. Generally what is and what is not negligence is a question for the jury. When the .standard of duty is a shifting one, a jury must determine what it is, as well as find whether it has been complied with: Glassey v. Hestonville, &c., Passenger Railway Company, 7 P. F. Smith 174. The degree of care demanded of the company in running its train depended on circumstances, and»whether it observed due care in approaching the bridge or was guilty of negligence in not sounding an alarm-whistle, was a question which properly belonged to the jury to determine. If there had been no evidence of negligence, or any facts or circumstances from which negligence could be fairly inferred, the court ought not to have submitted the ques tion to their determination. But it is as clearly the duty of a railroad company as it is of a natural person, to exercise its rights with a considerate and prudent regard for the rights and safety of others; and for injuries occasioned by negligence both are equally responsible. Nor is it any excuse or justification that the act occasioning the injury was in itself lawful or that it was done in the exercise of a lawful right, if the injury arose from the negligent manner in which it was done. If there was no danger to the persons and property of those who might be travelling along the public road in running its trains without giving any notice of their approach to the bridge, then the company is not chargeable with negligence in not giving it. But if danger might be reasonably apprehended, it was the duty of the company to give some notice or warning in order that it might be avoided. If it would have been negligence in the plaintiff to drive upon the bridge, just as the train was about to pass under it, had he been aware of its approach, then he was entitled to notice, and it was the duty of the company to give it. Whether, therefore, the company exercised proper care and diligence in running the train in order to prevent injury to the persons and property of those who were lawfully on the public road and in the vicinity of the crossing was a question for the jury. And the court properly charged that in determining whether under all the circumstances of the case, the company was guilty of negligence, the jury should consider the relative position of the county road and the railroad; the likelihood and facility of a traveller to discover approaching trains, and when that was difficult, the care to be observed by the company would be proportionally increased; that if the whistle could be heard by travellers on the township road, which was a public road, much travelled, and the railroadtrains could not be seen from a point at a safe distance from the bridge, the jury would determine whether it was not the duty of the engineer to give some notice of the approach of the train; and that this was a matter of fact in view of all the surroundings and not of law. If under the evidence in the case the court had charged as matter of law, that the company was.guilty of no negligence in not giving notice of the approach of the train, the instruction would have been clearly erroneous. Negligence is always a question for the jury when there is any doubt as to the facts or as to the inferences to be drawn from them: Johnson v. Bruner, not yet reported. 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 and Thaw, 4 Wright 406.
The next question to be considered is whether the court erred in declining to charge that in no case will the company he held liable in not sounding the alarm-whistle except at points on the road where injury might result to persons on the track at road-crossings at grade and stations. The principles to which we have already adverted are equally applicable here. Whether it is the duty of the company to give notice of the approach of its trains at any point on the road depends altogether upon circumstances. Where there is no reasonable apprehension of danger, no such notice is required. But if danger to the persons or property of others may be reasonably apprehended or is likely to result from the running of its trains without giving such notice, then it is the duty of the company to give it, and its omission is negligence. The court therefore was clearly right in saying that it was the duty of the company to give notice, wherever danger may result to persons rightfully travelling on a public road that crosses the track, whether at grade, or over or under the railroad, where danger would be the consequence of want of notice. And the evidence fully justified the court in submitting this question to the jury. All the witnesses examined on the subject testified that it was dangerous crossing the bridge when trains were approaching, and it is a significant fact that the company did not call a single witness to rebut the evidence given by the plaintiff in this or in any other particular. If, then, the crossing was dangerous, as all the witnesses agree, it was the duty of the company to give notice of the approach of its train.
The only remaining question to be considered is, whether the company is relieved from all responsibility for the injury because it was not the immediate consequence of its negligence. The sounding of the alarm-whistle as the train was passing under the bridge was the cause of the horses becoming frightened and running away, and the injury to the plaintiff was the result. This was an act of gross negligence, and a sufficiently proximate cause of the injury to render the company liable therefor.
The remaining assignments were not pressed, and there is nothing in them requiring special notice. The case seems to have been tried with great fairness by the learned judge; and as we discover no error in his instructions to the jury the judgment must be affirmed.
Judgment affirmed.