Burrell v. Gowen
| Decision Date | 05 May 1890 |
| Docket Number | 325 |
| Citation | 19 A. 678,134 Pa. 527 |
| Parties | ISAAC C. BURRELL v. F. B. GOWEN ET AL |
| Court | Pennsylvania Supreme Court |
Argued April 16, 1890
APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS OF COLUMBIA COUNTY.
No. 325 January Term 1890, Sup. Ct.; court below, No. 240 September Term 1885, C.P.
On September 12, 1885, Isaac C. Burrell brought case against Franklin B. Gowen and Stephen A. Caldwell, surviving receivers of the Philadelphia & Reading Railroad Co., to recover damages for personal injuries charged to the negligence of the defendants. Issue.
At the trial on February 11, 1890, the plaintiff introduced testimony showing that on October 21, 1882, about 5 o'clock in the morning, he was the locomotive engineer upon a train of defendants consisting of thirteen cars all loaded, running between East Mahanoy Junction and Catawissa that, as they were going at a speed of twelve miles an hour out of Ringtown curve, the engine mounted the rail and dropped off the track almost instantly, turning over on its right side, and that the plaintiff was caught under the engine, where he was held for one hour and forty minutes. To show the cause of the accident, there was testimony that the outside rail was worn away one fourth of an inch, as stated by some witnesses, -- three fourths of an inch, as stated by others. Other witnesses for plaintiff testified that the entire curve was in good condition. It was also in evidence that the track was repaired two or three weeks before the accident, but there was no evidence that the trackmen were incapable, or that there was negligence in the manner the work was done. There was also evidence that a new rail or rails was or were put in at the place of the accident a short time after it.
At the close of the plaintiff's testimony, on motion of defendants' attorneys the court entered a judgment of nonsuit, with leave, etc. A rule to show cause why the judgment should not be lifted having been made and argued the court, holding, first, that a verdict in favor of the plaintiff would be manifestly against the clear weight of the evidence, and that, if so found by the jury, it would have to be set aside by the court; second, that there was no evidence from which negligence might be inferred, or legally sufficient evidence to support a verdict if found by the jury; third, that the plaintiff did not prove a case more consistent with negligence than with the absence of it discharged...
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