Caudell v. Baltimore & O. R. Co.
| Decision Date | 02 January 1912 |
| Docket Number | 225 |
| Citation | 234 Pa. 392,83 A. 361 |
| Parties | Caudell v. Baltimore & Ohio Railroad Company, Appellant |
| Court | Pennsylvania Supreme Court |
Argued October 31, 1911
Appeal, No. 225, Oct. T., 1911, by defendant from judgment of C.P. No. 4, Allegheny Co., First Term, 1909, No. 234, on verdict for plaintiff in case of Estella Caudell v. Baltimore & Ohio Railroad Company. Affirmed.
Trespass to recover damages for death of plaintiff's husband. Before COHEN, J.
The facts are stated in the opinion of the Supreme Court.
Verdict and judgment for plaintiff for $4,000. Defendant appealed.
Error assigned was in refusing binding instructions for defendant.
Judgment affirmed.
William Watson Smith of Gordon & Smith, for appellant.
David A. Reed of Reed, Smith, Shaw & Beal, with him Allen H. Kerr and Young & Clay, for appellee.
Before FELL, C.J., BROWN, MESTREZAT, POTTER, ELKIN, STEWART and MOSCHZISKER, JJ.
Two errors are assigned, one the refusal of the trial judge to give binding instructions for defendant, and the other the refusal to enter judgment non obstante veredicto upon the whole record. As viewed by appellant this means that the case should not have been submitted to the jury, the evidence being insufficient to sustain a recovery. For the reason stated in Boggess v. Railroad Company, 234 Pa. 379 in an opinion just handed down, we think this position is untenable. The learned counsel for appellee in the counter history of the case concisely state the facts in substance as follaws: Defendant railroad company had been accustomed to place incoming cars of produce on a particular track in the middle of the freight yards. The clerk who controlled these cars was stationed in the yard office, in a small building used by produce merchants for telephone and weigh scale purposes. It was necessary for the produce men to make frequent trips between the cars containing their produce and the yard office. There were two possible routes between these points; one by way of two planked wagon crossings; the other by a diagonal route across the tracks. The route by way of the planked wagon crossings was longer and required six open tracks to be crossed at grade. The diagonal route was much shorter and required the crossing of only one open track. The evidence warranted a finding that for several years prior to the accident, it had been customary for the produce men their employees and their customers, to use the diagonal route in going from the yard office to the cars containing produce and returning therefrom. There was also evidence tending to show that the yard crews knew of this custom and there was no denial by appellant. Nothing was done by the railroad company by notice or otherwise to indicate that the use of the diagonal way was objectionable. This permissive use seems to have been acquiesced in by all parties concerned. The accident which resulted in the death of the husband occurred early on a Monday morning in January. This was the busiest day of the week, and Caudell, an employee of Boggess, was accompanying his employer to the car containing produce when he was struck and killed by a shifting engine running...
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