Reading, &C. R. R. Co. v. Ritchie

• Decision Date: 19 March 1883
• Citation: 102 Pa. 425
• Parties: Reading and Columbia R. R. Co. <I>versus</I> Ritchie et al.
• Court: Pennsylvania Supreme Court

Page 425

102 Pa. 425

Reading and Columbia R. R. Co. versus Ritchie et al.

Supreme Court of Pennsylvania.

February 27, 1883.

March 19, 1883.

February 27th 1883.

Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, STERRETT, GREEN and CLARK, JJ.

ERROR to the Court of Common Pleas of Berks county: Of January Term 1882, No. 11.

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Jeff. Snyder and Geo. F. Baer, for the plaintiff in error.— There was no evidence to warrant the court in submitting the case to the jury. On the contrary, the evidence of plaintiff's witnesses conclusively showed that the company had not been negligent, that it had taken every precaution, and that the deceased had been guilty of contributory negligence. The plaintiffs should have been nonsuited, and undisputed facts should not have been left to a jury as though they were disputed: Baxter v. R. R. Co., 41 N. Y. 505; Wilcox v. R. R. Co., 39 Id. 358; Haas v. R. R. Co., 8 Am. and Eng. R. R. Cases, 269.

James N. Ermentrout (Daniel Ermentrout and Henry C. G. Reber with him), for defendant in error.—It is not error on the part of the judge presiding at a trial of this kind to decline to select a series of facts possible to exist from the testimony, the same being controverted, and state to the jury as a matter of law, whether such, if found, would or would not constitute negligence. No absolute rule as to what constitutes negligence can be laid down or followed. It is a question for the jury under proper instructions: Pa. R. R. Co. v. Goodman, 12 P. F. S. 338; R. R. Co. v. Hagan, 11 Wr. 244; R. R. Co. v. Werner 6 W. N. C. 520. It would have been an invasion of the province of a jury for the court to have withdrawn from their consideration the facts of this case.

Mr. Justice GREEN delivered the opinion of the court, March 19th 1883.

It is difficult to understand upon what theory of the testimony, the verdict in this case was rendered by the jury, or permitted by the court. There was no proof of negligence by the defendant, and there was affirmative, uncontradicted, and unimpeached testimony showing contributory negligence on the part of the deceased. Four of the plaintiff's witnesses, being all who were in the vicinity at the time of the accident, to wit, James Sell, Charles H. Miller, Daniel Leininger and Daniel Adams, testified that three whistles were blown, one long and two short, by the approaching engine, before it reached the crossing, and they were all heard by all of the witnesses. Three of these witnesses were at or near the Fritztown station, and one Daniel Adams was at the tool house along the railroad, about two hundred to three hundred yards beyond the crossing at which the accident occurred. The train was going east from Lancaster to Reading; the place of the accident was a public road crossing, situate about nine hundred and lifty feet east, or towards Reading, from the Fritztown station. The first or long whistle was blown just above a bend in the road, before reaching the Fritztown station, and the second and third were blown after turning the bend and coming within sight of a signal board at the station to denote whether the train should stop for passengers. In addition to the foregoing, another witness, Isaac Steffy, testified that he was at the tool house with Daniel Adams when the accident happened, and heard the whistle of the approaching train. He also said he had measured the distance from the crossing to the tool house and it was one thousand and thirty-four feet, so that it was an undisputed fact that notice of the approach of the train was given, in the usual way, by the sound of a steam whistle, which was loud enough to be heard a considerable distance beyond the place of the accident.

Another witness for the defendant, George Freeman, living between five hundred and six hundred yards from the Fritzown station also heard the whistle. Four witnesses for the plaintiffs, and two for the defendant, concur in their testimony that the alarm was given, and at a sufficient time before the crossing was reached, to enable a person approaching the railroad along the public road to abstain from an attempt to cross. Two witnesses, one for the plaintiff, and one for the defendant, testify that they heard the alarm at a point several hundred yards beyond the crossing. There is no opposing or contradictory testimony in the case. Facts thus established cannot be spoken of by the court or considered by the jury as disputed or controverted facts. They are entirely undisputed, proved by both sides and denied by neither. Hence the learned judge of the court below was clearly and gravely in error in leaving the question whether the whistles were sounded, to the jury, as an open and undetermined question to be decided by them, as was done in the portion of the charge covered by the fifth assignment. This error was seriously enhanced by the subsequent language of the same assignment, in which the court told the jury that although the sound of the whistles was heard by persons beyond the place of the accident, it might be no evidence that it was heard by the person injured. Again in the same assignment the learned court propounded the case of an engineer willfully rushing upon a man whom he saw on the track before him, making no effort to stop, when he knew the man could not escape in time, as a possible answer to the proof of notice by the whistles. As there was not a particle of proof of any such state of facts in this case, such a line of remark was entirely unwarranted and was error of the gravest character. It could only serve the purpose of misleading the jury. Upon the entirely undisputed testimony it was the clear duty of the court below to charge the jury that the defendant was not guilty of negligence so...