Blauvelt v. Delaware, Lackawanna & Western Railroad Co.

• Decision Date: 11 May 1903
• Docket Number: 297
• Citation: 55 A. 857,206 Pa. 141
• Parties: Blauvelt v. Delaware, Lackawanna & Western Railroad Company, Appellant
• Court: Pennsylvania Supreme Court

55 A. 857

206 Pa. 141

Blauvelt v. Delaware, Lackawanna & Western Railroad Company, Appellant

No. 297

Supreme Court of Pennsylvania

May 11, 1903

Argued April 15, 1903

Appeal, No. 297, Jan. T., 1902, by defendant, from judgment of C.P. Susquehanna Co., April T., 1900, No. 131, on verdict for plaintiff in case of Palmira Blauvelt v. Delaware Lackawanna & Western Railroad Company. Affirmed.

Trespass to recover damages for the death of the plaintiff's son. Before SEARLE, P.J.

At the trial it appeared that the deceased was a man thirty years old, and that he lived with his mother and helped to support her. The statement of claim stated the relationship between the parties. The circumstances of the accident are set forth in the opinion of the Supreme Court.

When the plaintiff was on the stand the following offer was made:

Mr Sherwood: We offer to prove as to this branch of the case, the services which the son performed for his mother at the time he was living there with her and up to the time of his death, and the different characters of the services, for the purpose of showing the amount of damages she has sustained by his death.

Mr. Warren: We object to it as incompetent. Objection overruled. Defendant excepts. Bill sealed for defendant. [19]

"A. Why, he done everything; cutting wood and working around and helping me around the house, and everything that he could do; going after the cow and feeding hogs, and everything when he was around the house, and taking care of the girl that is sick."

A witness of the defendant was asked as follows:

"Q. If a train were going twenty miles an hour, what would be the number of seconds that it would require to pass over the space from the whistling post at the south to this crossing?"

Objected, as a matter of mere computation.

The Court: It seems to me that is a question of mere computation.

Objection sustained. Defendants excepts. Bill sealed for defendant. [20]

"Q. Please tell us at what rate of speed -- that is, how many feet per second -- a train would go on the track at the rate of twenty miles per hour, and also at the rate of twenty-five miles per hour."

Objected to the same as before. Objection sustained. Defendant excepts. Bill sealed for defendant. [21]

Orland Taylor was asked as follows:

"Q. Did you have any conversation with him (Miller, the engineer) in which he said that the chimney of this light was smoked up and that he went out and wiped it off?"

Mr. Warren: We object that this is not a contradiction on material point nor as to the time of the accident, and that it is incompetent and immaterial. Objection overruled. Defendant excepts. Bill sealed for defendant. [24]

Verdict and judgment for plaintiff for $1,900.

Errors assigned among others were (8) in refusing binding instructions for defendant; (19, 20, 21, 24) rulings on evidence, quoting the bill of exceptions.

The judgment is affirmed.

Everett Warren, of Willard, Warren & Knapp, with him A. H. McCollum for appellant. -- The case made by plaintiff consists of the evidence of about ten witnesses, of a negative character, and under the circumstances of little or no probative force. As compared with the whole evidence, there is at most not more than a scintilla of evidence to sustain the charge of negligence of defendant: Mellors v. Shaw, 1 Best & Smith (Q.B.,) 437 s.c. 101 E.C.L. Rep. 435; Ryder v. Wombwell, L.R. 4 Exchequer Cases, 32; Hyatt v. Johnston, 91 Pa. 196; Bank v. Wirebach's Exr., 106 Pa. 37.

The right of the mother to recover depended upon the family relation, and this was nothing more than filial duty and common humanity required of the son. It cost him nothing, and it cost plaintiff nothing either then or now. It is probably now done by one of the girls who can do it as readily as the son. It should have been excluded within the principles laid down: Zimmerman v. Zimmerman, 129 Pa. 229; Goodhart v. Penna. R.R. Co., 177 Pa. 1; Woeckner v. Erie Electric Motor Company, 182 Pa. 182.

Paul J. Sherwood, with him Ralph B. Little, for appellee.

Before MITCHELL, DEAN, FELL, BROWN and MESTREZAT, JJ.

OPINION

MR. JUSTICE MESTREZAT:

This case was most carefully and patiently tried by the learned judge of the court below. It was submitted to the jury in a charge, impartial, exceptionally clear and exhaustive. The negligence of the defendant company and that of the deceased were the questions presented for the consideration of the jury and were determined in favor of the plaintiff. The defendant filed twenty-nine reasons for a new trial, all of which were carfeully considered and dismissed by the learned trial judge in an opinion which fully vindicates his conclusions. We now have this appeal in which the learned counsel for the appellant company asks us to review practically the same questions determined against it on the motion for a new trial. Notwithstanding the twenty-nine assignments of error and the exhaustive argument in support of them, we are not convinced that the court below committed any reversible error in the trial of the cause.

The principal complaint of the defendant company is that the court erred in not affirming its first point that "upon the whole case the verdict must be for the defendant." Binding instructions in favor of the defendant would have been manifest error under the testimony in the case. John Blauvelt, the deceased, and his companion, each riding a horse, were struck and killed by a light passenger engine with tender, running backward on a descending grade, about 10:30 o'clock of a very dark night at a public crossing in the borough of La Plume, in Susquehanna county. No witness saw the men as they approached the crossing or at the time they met their death. The plaintiff contended and introduced evidence on the trial to show that the night was so dark that the engine approaching the...