Bard v. Philadelphia & Reading Railway Co.
| Decision Date | 01 April 1901 |
| Docket Number | 67 |
| Citation | 199 Pa. 94,48 A. 684 |
| Parties | Bard, Appellant, v. Philadelphia and Reading Railway Company |
| Court | Pennsylvania Supreme Court |
Argued March 5, 1901
Appeal, No. 67, Jan. T., 1901, by plaintiff, from judgment of C.P. Berks Co., Aug. T., 1900, No. 127, on verdict for defendant in case of Mary E. Bard, Widow of John Bard, v. The Philadelphia and Reading Railway Company. Reversed.
Trespass to recover damages for personal injuries. Before ENDLICH, J.
The facts are fully stated in the opinion of the Supreme Court.
The court gave binding instructions for defendant.
Verdict and judgment for defendant. Plaintiff appealed.
Error assigned was in giving binding instructions for defendant.
The assignments of error are sustained, the judgment is reversed and a venire facias de novo is awarded.
H. P Keiser and J. H. Jacobs, with them William H. Livingood, for appellant. -- The case was for the jury: Davidson v. Lake Shore, etc., Ry. Co., 171 Pa. 522; Arnold v Philadelphia & Reading R.R. Co., 161 Pa. 1; Howett v. Phila., Wilmington & Baltimore R.R. Co., 166 Pa. 607; Laib v. Penna. R.R. Co., 180 Pa. 503; Muckinhaupt v. Erie R.R. Co., 196 Pa. 213.
Jefferson Snyder, of Baer, Snyder & Zieber, for appellee. -- This case is ruled by Hauser v. Central R.R. Co. of N.J., 147 Pa. 440.
Before McCOLLUM, C.J., MITCHELL, FELL, BROWN and MESTREZAT, JJ.
The plaintiff, a widow of forty-seven years of age resided on north Third street in the city of Reading. She spent the night of November 23, 1899, at her son's house on Pear street in the city and left there about 5:30 o'clock the next morning to go to her home. Her route lay along Pear, Elm, Second and Walnut streets to Third street. When she arrived at Walnut street, she walked along the north side of it. The main track of the West Reading Branch of the Philadelphia and Reading Railway and a siding to Laurer's brewery cross Walnut street a short distance west of Third street which runs north and south and makes a right angle with Walnut street. The distance between the two tracks on the sidewalk on the north side of Walnut street is about twenty-six feet. Walnut street is forty feet wide between the curbs. Mrs. Bard testifies that she walked slowly on Walnut street and that she stopped six feet beyond the Laurer siding which was about twenty feet west of the main track, and there looked and listened. She says she saw and heard nothing, and thinking it was all right, walked on when, as she was about putting one foot across the first rail, she was struck by an engine. "It was just like a flash," she says. Her right arm, right leg and ankle of her left foot were broken and she was otherwise injured. She further testifies that the morning was foggy and very dark; that she could not see very far on account of the fog; that no bell was rung nor whistle was blown as the engine approached the crossing; that she knew nothing about the headlight on the engine. On cross-examination she said, that on a clear day she might be able to see 250 feet from where she stopped in the direction in which the train approached the crossing; that she could see the switch box dimly which, according to other testimony, was about four feet square and six feet high, unlighted and standing at the northwest corner of Third and Walnut streets.
A tender was attached to the locomotive, and at the time of the accident there were six persons on the locomotive, a conductor, an engineer, a fireman and three brakemen.
Philip Sproesser, a witness for the plaintiff, testifies that the morning was very foggy and that it was not daylight when the plaintiff was struck; that he could not see across Walnut street and could not see the switch box until within ten feet of it; that he had just crossed the track when the engine passed him like a flash and was running very fast; that no whistle was blown nor bell rung; that after walking along the south side of Walnut street to the corner of the stocking factory -- about twenty feet from the track -- he heard the screeching noise of the brakes on the engine, turned round and saw the engine stop just above the entrance to Laurer's brewery yard and walked up to see what was wrong.
William Shunk one of plaintiff's witnesses testified that the engine passed him, 600 feet from the crossing as he was going in the same direction; that there was no signal from the whistle or bell as it passed him; that it was dark, foggy and a little mist was falling.
Louis Peltzer testified that it was dark, foggy and raining a little that morning at the time of the accident; that he was walking east along the north side of Walnut street and saw an object in front of him which he imagined to be a person; that he saw the engine strike the person when he was about twenty feet behind her; that he picked the plaintiff up near a fence, two or three steps west of the railroad track at the wagon crossing and about sixty feet north of Walnut street; that the engine continued beyond that point; that it was running very fast and gave no signal as it approached the street.
Such in part is the testimony adduced by the plaintiff on the trial on which she bases her right to submit the case to a jury. On the part of the defendant, the engineer, fireman and two of the brakemen who were on the engine that morning together with two other parties were called to testify as to the occurrences at the time of the collision. Every material part of the plaintiff's testimony is flatly contradicted by the evidence of the defendant. If these witnesses are believed by the jury, the accident occurred in daylight when the plaintiff, before crossing the railroad, could have seen several hundred feet in the direction of the approaching locomotive; that it was running up grade, puffing loudly and at the speed of only four or five miles an hour; that the bell was rung continuously from Spruce street to the place of the collision. It is denied that it was foggy that morning, and the testimony tends to show that a brilliant headlight was on the engine by reason of which and the arc light at the intersection of Third and Walnut streets, the plaintiff could have seen the distance of a square from her.
The trial judge was of the opinion that under the evidence submitted the plaintiff was so clearly guilty of negligence contributing to her injuries that as a matter of law he was justified in withdrawing the question from the jury.
There are certain facts in the case established by the testimony adduced by the plaintiff if it is believed by the jury. Mrs Bard's...
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