Bickel v. Pennsylvania R. Co.
| Decision Date | 01 April 1907 |
| Docket Number | 204 |
| Citation | 66 A. 756,217 Pa. 456 |
| Parties | Bickel v. Pennsylvania Railroad Company, Appellant |
| Court | Pennsylvania Supreme Court |
Argued March 4, 1907
Appeal, No. 204, Jan. T., 1906, by defendant, from judgment of C.P. Berks Co., March T., 1905, No. 17, on verdict for plaintiff in case of Angeline F. Bickel v. The Pennsylvania Railroad Company. Affirmed.
Trespass to recover damages for death of plaintiff's husband. Before ENDLICH, J.
The facts are stated in the opinion of the Supreme Court.
Verdict and judgment for plaintiff for $3,425. Defendant appealed.
Error assigned was in entering judgment upon the verdict.
The assignment of error is overruled, and the judgment of the court below is affirmed.
Cyrus G. Derr, for appellant, cited: Blotz v. R.R. Co., 212 Pa. 154; Schum v. Penna. R.R. Co., 107 Pa. 8; Cohen v. Phila. & Reading Ry. Co., 211 Pa. 227; Gerety v. R.R. Co., 81 Pa. 274; Penna. R.R. Co v. Goodman, 62 Pa. 329; Garlich v. Northern Pac. Ry Co., 131 Fed. Repr. 837; Phila., etc., R.R. Co. v. Stinger, 78 Pa. 219; Black v. Bessemer & L.E. R.R. Co., 216 Pa. 173.
Isaac Hiester, for appellee, cited: Childs v. Penna. R.R. Co., 150 Pa. 73; Goggin v. R.R. Co., 43 Pitts. L.J. 151; Faust v. P. & R. Ry. Co., 191 Pa. 420; P. & R.R.R. Co. v. Killips, 88 Pa. 405; R.R. Co. v. Stinger, 78 Pa. 219; Penna. R.R. Co. v. Weber, 72 Pa. 27; Patterson v. Ry. Co., 210 Pa. 47; Schum v. Penna. R.R. Co., 107 Pa. 8; Hoffmeister v. Penna. R.R. Co., 160 Pa. 568; Davidson v. Ry. Co., 179 Pa. 227; Muckinhaupt v. Erie R.R. Co., 196 Pa. 213; Cromley v. Penna. R.R. Co., 208 Pa. 445; Schwarz v. Del., L. & W.R.R. Co., 211 Pa. 625; Breunninger v. Penna. R.R. Co., 9 Pa. Superior Ct. 461; Ely v. Ry. Co., 158 Pa. 233.
Before MITCHELL, C.J., BROWN, MESTREZAT, ELKIN and STEWART, JJ.
This is an action of trespass brought by the plaintiff to recover damages for the death of her husband who was killed by a collision with the defendant company's train at a grade crossing. In a charge, exceptionally clear and concededly adequate, the learned trial judge submitted the question of the defendant's negligence and the deceased's contributory negligence to the jury who returned a verdict for the plaintiff. A formal motion for a new trial was made but not pressed, and the learned counsel for the defendant company took a rule upon the plaintiff to show cause why judgment non obstante veredicto should not be entered for the defendant under the Act of April 22, 1905, P.L. 286. In an exhaustive opinion by the trial judge, he has reviewed at length the facts as well as the law applicable to the case, and has conclusively demonstrated that there was sufficient evidence to justify the court in submitting the case to the jury. The authorities cited amply sustain his view of the law, and the testimony to which he refers clearly shows that the case could not have been withdrawn from the jury on either of the two questions submitted for their consideration. The defendant company has, therefore, had its case considered twice by an able and thoroughly competent court, who heard the testimony and who dealt with every question which now appears upon this record. So satisfactory to the defendant's counsel was the case disposed of in the court below, that the single complaint in this court is that the trial court erred in not directing a verdict for the defendant, and subsequently, in not entering judgment for the defendant notwithstanding the verdict.
Under the testimony in the case, the defendant's negligence was clearly a question of fact for the jury. And it was made to turn upon the question whether the whistle was blown at the whistle-post and the fireman rang the bell for the crossing at which the deceased was killed. The court, on request of defendant's counsel, instructed the jury that "if the defendant's engineman sounded the whistle at the whistle-post and the fireman rang the bell thence to the crossing at which the accident happened, the verdict must be for the defendant." In affirming that point, the learned court surely gave the defendant company all it was entitled to under the facts of the case. Notwithstanding the topography of the country, the character of the crossing and the obstructed view which the deceased had of the approaching train, the learned judge told the jury that the defendant company was relieved from liability if it blew the whistle at the post and rang the bell until the crossing was reached. Under the submission, the verdict establishes the fact that the engineer failed to give the signal at the whistle-post which, by making a rule requiring it, the defendant company shows that it regarded the signal at that place as necessary to protect the public who had occasion to use the crossing. The learned counsel for the defendant company contends that the testimony of its witnesses shows conclusively that the signal was given at the whistle-post, but we think the trial court's analysis of it clearly discloses that the engineer is the only witness who testifies positively that the signal was given. The testimony of the defendant's other witnesses is clearly open to the doubt and uncertainty which the trial judge points out in his opinion. We think the contradictions of the engineer warranted the jury in disregarding his testimony entirely on that point. Material parts of it are flatly contradicted by other witnesses who were corroborated by certain uncontroverted facts in the case. For the trial court under these circumstances to have instructed the jury that they should believe the testimony of the engineer and disregard all the other testimony in the case as to whether the signal was given at the post or not, would have been manifest error. As we have said, an analysis of all the testimony on this point, of the defendant as well as of the plaintiff, shows that the question was undoubtedly for the jury.
The learned judge, as we have seen, gave the jury positive instructions that if the whistle was sounded at the whistle-post and the fireman rang the bell thence to the crossing, the defendant's employees had done their duty and the defendant company was relieved from liability for the death of the plaintiff's husband. The learned court might have gone further and told the jury broadly that it was the duty of the defendant's employees in charge of the train to have given timely and sufficient warning of its approach to the crossing in view of the circumstances of the case, such as the character of the crossing, the ability of travelers to see an approaching train, the rate of speed of the train, etc., and that failing to do so, the plaintiff, in the absence of negligence on the part of the deceased, was entitled to recover. While the law does not point out any particular mode or manner in which notice of trains approaching a crossing shall be given, it does require that some suitable and adequate means, adapted to the circumstances, shall be adopted and applied: STERRETT, J., in Philadelphia & Reading Railroad Co. v. Killips, 88 Pa. 405. In Ellis v. Lake Shore, etc., Railway Co., 138 Pa. 506, the defendant company submitted several points for instruction, its first point, which was negatived by the trial court, being as follows: "If the jury find from the evidence in this case that the engineer of the defendant company sounded the whistle at a proper distance, and rang the bell as they approached the road crossing, then the defendants have done their whole duty, and are guilty of no negligence, and there can be no recovery in this case." In sustaining this ruling, this court said (p. 519): ...
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