Biesecker v. Pennsylvania R. Co.

• Decision Date: 03 January 1923
• Docket Number: 212
• Citation: 119 A. 821,276 Pa. 87
• Parties: Biesecker v. Pennsylvania Railroad Co., Appellant
• Court: Pennsylvania Supreme Court

119 A. 821

276 Pa. 87

Biesecker v. Pennsylvania Railroad Co., Appellant

No. 212

Supreme Court of Pennsylvania

January 3, 1923

Argued October 13, 1922

Appeal, No. 212, Oct. T., 1922, by defendant, from judgment of C.P. Allegheny Co., April T., 1921, No. 2611, on verdict for plaintiff, in case of Lillie W. Biesecker, Administratrix of Estate of Norman E. Biesecker, deceased, v. Pennsylvania Railroad Co. Affirmed.

Trespass for death of plaintiff's husband under Federal Employer's Liability Act. Before HAYMAKER, J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff for $2,100. Defendant appealed.

Error assigned was refusal of judgment for defendant n.o.v quoting record.

The judgment of the court below is affirmed.

Robert D. Dalzell, of Dalzell, Fisher & Dalzell, for appellant. -- This is a case under the Federal Employers' Liability Act, but that act does not relieve plaintiff from proving negligence: Patton v. Ry., 179 U.S. 658; Seaboard A.L. v. Horton, 233 U.S. 492.

A jury may not be allowed to guess as to how an accident happened P. & R.R.R. v. Schertle, 97 Pa. 450; McClain v. Henderson, 187 Pa. 283; Sandt v. Foundry Co., 214 Pa. 215.

J. Thomas Hoffman, for appellee, cited: Norfolk & Western R.R. v. Earnest, 229 U.S. 114; Chicago, R.I. & P. v. Wright, 239 U.S. 548; Carmont v. R.R., 271 Pa. 122; Crumley v. R.R., 272 Pa. 226; C., B. & Q. v. U.S., 220 U.S. 574; Lindway v. R.R., 268 Pa. 491; Reed v. Director Gen., 267 Pa. 86.

Before WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE SIMPSON:

Norman E. Biesecker, while employed by defendant in interstate commerce, received injuries from which he died. His administratrix brought suit under the Federal Employers' Liability Act, and recovered a verdict and judgment, from the latter of which defendant appeals, assigning as the only error the refusal of the court below to enter judgment for defendant non obstante veredicto.

It is not claimed the injury or death was in any degree caused by decedent's contributory negligence, or was the result of a risk of the employment for which defendant was not liable; but solely that the evidence failed to satisfactorily disclose the particular negligence which caused the injury. Perhaps we might resolve this contention against appellant, by simply quoting and applying the admission in its paper-book, that the court in sustaining the verdict "has explained what might have been an interpretation of the testimony -- [making defendant liable for] this accident." If that conclusion is correct, the appeal necessarily fails, for so also the jury might have interpreted it, and this being so we cannot reverse the judgment. We shall, however, decide the appeal entirely aside from that admission.

In doing so, since the conclusion reached depends upon testimony alone, we must give full effect to all the facts and inferences therefrom which the jury might have found in favor of plaintiff, and reject all those which it might have refused to believe: Wiles v. Emerson-Brantingham Co., 267 Pa. 47. In this light we thus summarize the facts sustaining the verdict: Decedent was an engineer for defendant, engaged in assembling a train of cars for transportation in interstate commerce. While doing this, his engine and the cars attached to it were...