| Ebright v. Mineral Railroad & Mining Co.

• Decision Date: 01 October 1888
• Citation: 15 A. 709
• Parties: Ebright v. Mineral Railroad & Mining Co
• Court: Pennsylvania Supreme Court

15 A. 709

Ebright v. Mineral Railroad & Mining Co

Supreme Court of Pennsylvania

October 1, 1888

May 21, 1888. Error, No. 14, July T. 1887, to C. P Northumberland Co., to review a judgment on a verdict for defendant in an action of trespass on the case, by James Ebright against The Mineral Railroad and Mining Co., to recover damages for personal injuries, at Sept. T. 1882, No 136. TRUNKEY, J., absent.

The amended declaration, being the only one printed, alleged inter alia, that the defendant ran its cars over the siding of the defendant and the siding of the Northern Central Railway, without full and proper control thereof, and without having a sufficient number of competent persons in charge thereof, to run, manage and control the same, and at such a high and dangerous rate of speed, and so carelessly and negligently failed to brake, block and safely secure the said cars as they were then and there left standing upon said last mentioned siding, and see that the same were safely braked blocked and secured, and so carelessly, negligently and unskillfully managed the same, that, by and through the negligence, etc., of the defendant, etc., run said cars loaded as aforesaid, upon and over said siding, to wit., said siding belonging to said defendant, and said siding of said Northern Central Railway Co., and upon and against certain other railroad cars, then and thereupon said last mentioned sidings being and standing, with great force, etc., so as to carelessly cause the last mentioned railroad cars to run into a siding where the plaintiff was working and to strike a car on which he was working, throwing him down and injuring him, etc. The defendant pleaded not guilty.

Lloyd Persing, a witness for plaintiff, being on the stand, the defendant made this offer, on the trial, before ROCKEFELLER, P. J.:

The witness having stated the manner in which he run the cars down on the morning that it is alleged this accident occurred, the defendant's counsel now propose to ask him whether he run the cars that morning according to the usual manner and custom of running them down for the purpose of connecting with the cars on the siding at the point of junction with the main line of the railroad. This, for the purpose of showing that the cars were run down with due and proper care and that he was performing his regular duty in the manner he always performed it and in a proper manner.

Counsel for plaintiff object to the question, 1, because it is not a cross-examination, the witness having been asked no questions on the part of the plaintiff as to the usual method of running these cars and coupling them on to those below, but simply how it was done the morning the accident occurred; 2, because it is not proper evidence, the only question in the case being, how the cars were run that morning, not how they usually run; the defendant cannot show that they run them in the usual manner and thereby argue that they run them safely and without negligence, that would be begging the question.

The Court: The defendant may show that the cars were run in the usual manner of running them and that such running them had been safe. Objections over-ruled, evidence admitted, and exception. [1]

Persing further testified in chief: "When I struck them (the cars) they all started off for me; the brakes had been taken off the night before by somebody . . . . The brakes had been taken off the 25 or 30 cars that had been run down the day before, through the night; when those cars were put down there the day before they were not blocked; I run them down and I put enough brakes on to hold them, I think, without being blocked." On cross-examination, the same witness said: "I had been working there the day before and had run down those cars that were on the end of the siding that were struck first . . . . I coupled them and braked them; braked them securely; left them perfectly safe."

Persing was further asked the following question, on re-examination in chief: "Q. Supposing they, the 25 or 30 cars, had been so securely blocked that they could not have moved without running over the blocks, instead of shoving, without running over these blocks, say you had 6 inch blocks under them, or what are proper and sufficient blocks to hold them, what would have been the result when you struck them as you did that morning when you went to make the coupling? A. It would have shoved them off the track."

Other witnesses testified that it was usual and necessary to block the cars to make them safe, when left standing.

Joseph Keefer, a witness for plaintiff, being on the stand, counsel for plaintiff proposed to show by the witness that, upon several occasions, cars broke loose and run out from the Mineral Railroad and Mining Company's siding down on to the Trout Run siding, for the purpose of showing that the Mineral Railroad and Mining Company did not use ordinary care; that the witness Persing was mistaken when he said they never ran away; also for the purpose of showing that the company and their employees had knowledge that these cars had run away from them and for the purpose of charging the defendants with more care than they were exercising.

Defendant's counsel object, 1, because it is irrelevant; 2, because the plaintiff cannot contradict the testimony of his own witness (Persing); 3, because it has no tendency to contradict anything that was stated by Persing and has no tendency to show want of care at the time of the alleged injury set forth in plaintiff's declaration; 4, because it is not proposed to show in what manner this alleged running away of the cars occurred, and, unless that is done, it cannot have any possible bearing upon the question of the alleged running away at the time the accident is alleged to have occurred or any carelessness or negligence connected therewith; 5, because it is not proposed to show that the running away, about which the inquiry is proposed to be made, was from a point upon the Mineral Mining and Railroad Company's siding at which the cars were under the control of that company; from all that appears from the question it may have been after the cars were delivered into the hands of the Northern Central Railway Company.

The Court: To make the fact that cars previously escaped evidence of knowledge on the part of the defendant, it must be shown that they escaped under the same conditions or circumstances under which they escaped at the time of the injury complained of in this case. Objections sustained, evidence rejected, and exception. [2]

The charge of the Court was as follows: "This is an action brought by James Ebright, the plaintiff, against the Mineral Railroad and Mining Company, defendant, to recover damage for an injury sustained by the plaintiff by reason, as he alleges, of some act of negligence on the part of the defendant. When injuries are occasioned by one person to another, by reason of his negligence, the law gives an action, a right to recover damages. Negligence is the essence of the claim or right of action. Negligence is defined to be the want of care under the circumstances. Negligence is never presumed, every person is presumed to act carefully and to transact his business in a careful manner, and it is not to be presumed that he does otherwise, but it must be shown. [The party alleging negligence must prove it. The presumption is that there was no negligence until the party, claiming that there was, shows it, by competent authority.]

"Now there are some principles of law that are applicable to this case, to which I will refer further on in my charge. For the present, I will merely call your attention to the manner and the circumstances under which these parties were doing business at the time of the alleged injury. In the month of July, 1880, if you believe the evidence, there existed, and still exists, a colliery, called the 'Cameron Colliery,' at which the defendant, the Mineral Railroad and Mining Company, were engaged in mining, preparing and shipping coal. That they were there in the lawful pursuit of their business, is not questioned or disputed in this case. From this colliery, there extended westward, a siding, called the 'Cameron siding,' and that is the siding that was used for the purpose of taking cars out from beneath the breaker after they were loaded, and dropping them down to the western terminus of this siding, where they were left standing until the Northern Central Railway Company saw proper to take them out. From the terminus of this siding there extended another, called the 'Trout Run siding,' which siding belonged to the Northern Central Railway Company. This latter siding extended several hundred feet and then run into the main track of the Northern Central Railway Company's road. Near that point there was a switch that led upon a siding called 'Beury's siding,' which was put in there by the railroad company not the defendants in this case, for Mr. Beury. From the coal breaker down to the 'Beury siding,' there was a descending grade, and cars were run upon both sidings by gravity, and there seems to have been a continuous rail or track from the coal breaker down to the 'Beury siding,' so that, when cars were started at the coal breaker, they would run on down without turning any switch until they got to the switch at the 'Buery siding.' If the switch there was open, they would run in upon that siding; if not, they then would run out upon the main track of the Northern Central Railway Company by means of what the witnesses call a spring switch. Upon and along these two sidings, business was transacted by the defendant, the coal company, more especially at the breaker, but sometimes further down on the siding of the Northern Central Railway Company; that, however, was only occasional...