Cawley v. Baltimore & O. R. Co.

• Decision Date: 10 October 1910
• Docket Number: 159-1910
• Citation: 44 Pa.Super. 340
• Parties: Cawley v. Baltimore & Ohio Railroad Company, Appellant
• Court: Pennsylvania Superior Court

44 Pa.Super. 340

Cawley v. Baltimore & Ohio Railroad Company, Appellant

No. 159-1910

Superior Court of Pennsylvania

October 10, 1910

Argued April 28, 1910

Appeal by defendant, from judgment of C.P. No. 4, Allegheny Co Fourth T., 1907, No. 689, on verdict for plaintiff in case of Mary A. Cawley v. Baltimore & Ohio Railroad Company.

Trespass to recover damages for death of plaintiff's husband. Before Carnahan, J.

The facts are stated in the opinion of the Superior Court.

Verdict and judgment for plaintiff for $ 550. Defendant appealed.

Error assigned among others was in refusing binding instructions for defendant.

Owen S Cecil, with him Johns McCleave, for appellant. -- There was no evidence from which jury might infer that deceased was struck while on the highway: Quigley v. Canal Co., 142 Pa. 388; Jones v. R. R. Co., 202 Pa. 81; Welsh v. R. R. Co., 181 Pa. 461; Penna. R. R Co. v. Mooney, 126 Pa. 244; Ogden v. R. R. Co., 23 W.N.C. 191.

The undisputed evidence as to the situation at the crossing negatives the presumption that the deceased performed his duty to stop, look and listen: Davis v. Ry. Co., 159 F. 10; Carroll v. R. R. Co., 12 W.N.C. 348; Marland v. R. R. Co., 123 Pa. 487; Meyers v. R. R. Co., 150 Pa. 386; Urias v. Penna. R. R. Co., 152 Pa. 326; Connerton v. Delaware & H. Canal, 169 Pa. 339; Seamans v. D. L. & W.R. R. Co., 174 Pa. 421; Coppuck v. P. W. & B.R. R. Co., 191 Pa. 172.

A. H. Mercer, with him L. W. Bigham, for appellee. -- The finding of the jury upon the facts in this case is supported by the decisions of all of our courts: Penna. R. R. Co. v. Weber, 76 Pa. 157; Weiss v. R. R. Co., 79 Pa. 387; Sontum v. Ry. Co., 226 Pa. 230; Laib v. Penna. R. R. Co., 180 Pa. 503; Davis v. R. R. Co., 34 Pa.Super. 388; Unger v. R. R. Co., 217 Pa. 106; Longenecker v. R. R. Co., 105 Pa. 328; Bard v. R. R. Co., 199 Pa. 94; Seifred v. R. R. Co., 206 Pa. 399; Kuntz v. R. R. Co., 206 Pa. 162.

Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.

OPINION

HEAD, J.

In that section of the city of Pittsburg in the immediate vicinity of Hazelwood station, the right of way and tracks of the appellant company are at grade with the surrounding streets. The map offered in evidence and attached to the paper-book shows that at Hazelwood avenue the tracks run almost north and south. Of course, the general direction of the line is from east to west, and this leads to some apparent confusion in the testimony of the witnesses. The plaintiff with her husband lived on Gloucester street which runs parallel with the railroad and right alongside of and at grade with it. She locates her residence as being about three quarters of a square east of the grade crossing at Hazelwood station. No fence or other obstruction separated the tracks from the street. As she herself says in her testimony, " I have nothing to do but to cross the street and two sidewalks on to the railroad." At Hazelwood avenue on which the station building is located the railroad consists of two main tracks, west bound and east bound, and a siding. The siding, which extended but a short distance south or east of Hazelwood avenue, would be nearest to Gloucester street, the east bound track next and the west bound farthest from it, or nearest to Second avenue on the other side of the railroad.

On the night of September 11, 1906, between nine and ten o'clock, the plaintiff's husband left her house to go to a store on the other side of the railroad to procure an evening paper. She never saw him again alive. No one saw him on his way to the store. No one knows whether he proceeded down Gloucester street and crossed at the crossing at Hazelwood avenue or whether he took the more direct route diagonally across the tracks. He reached the store in safety and left it a few minutes before ten o'clock in company with the witness Douglass. They walked down Hazelwood avenue to a point near the tracks and stood there conversing a short time until a passenger train west bound had passed them. Douglass lived farther west, and after this train had passed he left the plaintiff's husband at the point where they had been talking and started westward alongside of the track. The rear light of the train that had passed was still visible vanishing in the distance. As he walked westward he heard the roar of an approaching east bound express. After he had traveled, as he says, a distance of 175 feet from where he had left the plaintiff's husband, he saw the headlight of the approaching train, and it was then distant from him 210 feet. This would make it clear that at that time the train would be distant 385 feet from one on the crossing.

No human eye saw the plaintiff's husband after he was left by the witness Douglass until he was found in the manner to be described. Whether he began to move immediately after Douglass had left him, no one knows. It is quite clear, if he had, and his motion was along Hazelwood avenue and across the tracks, he would have had sufficient time to have crossed them several times in safety before the east bound express reached that crossing. Not only is there no evidence as to when he started to go from the point where he had been left, but there is absolutely none as to how he undertook to go. No one saw him on the crossing, no one knows that he was on the crossing. It is equally true that no one saw him walking along the tracks or crossing them in the diagonal line that would be the most direct route from the point where he had been left standing to his own home.

At the time the east bound express passed the crossing, and for a very considerable period before that time, two men had been standing at the Second avenue corner of the station house talking together. They had seen nothing of Cawley during that evening. In a few moments after the express train had passed a boy ran up to them and informed them a man had been struck by the train and his body was lying on the tracks. They proceeded at once to see if any aid could be rendered and they found, lying on the right of way between the east and west bound tracks and about thirty feet, as they described it from the crossing, the body of the plaintiff's husband. He expired just as they reached him. They give no further description of the condition of the body except to say that the bones of his limbs were so badly broken a stretcher was required to remove him. This is the whole of the testimony upon which the plaintiff predicates her claim that the defendant is legally responsible for the negligent killing of her husband. We may here add that the testimony shows no blood or other mark of any kind at the crossing to indicate that it was at that point the train struck him.

Now it is manifest that if the deceased were walking along the tracks of the defendant company when he was struck, in other words, if the collision occurred not upon the public highway but at a point east of it on the right of way of the defendant company, the plaintiff cannot recover. Before the defendant could be called upon to answer, there must have been a sufficient basis for the conclusion that the deceased was struck while on a public highway where he had a right to be.

Of course it is absolutely clear, if we may credit the undisputed evidence, that from the time Douglass left the deceased there was nothing to interfere with his safe crossing on Hazelwood avenue for a very appreciable length of time. It is certain that he had all of the time consumed by Douglass in walking 175 feet, after which the headlight of the approaching train became visible to him. There was nothing to obstruct a like view by one crossing the tracks at Hazelwood avenue. The roar of the oncoming train was audible to Douglass before he could see the headlight. It must have been equally audible to one in the act of crossing at the highway who was using his senses, and, as we have already stated, a person so crossing would not only have had all of the time expended by the witness in walking 175 feet, but also the additional time during which the express train was traveling the 385 feet from the point where its light became visible to the crossing. There were but two main tracks to cross and these could hardly have covered more than a space of twenty feet.

Whilst these considerations might make it very difficult to escape the conclusion that the deceased, even if the evidence had shown he was struck on the crossing, was guilty of contributory negligence in walking in front of an approaching train whose light and noise must have warned his senses, yet we do not refer to them for that purpose. Rather for the purpose of showing that it is extremely improbable that he was struck on the crossing at all. But it is not necessary for us to go even that far. The body of the deceased was found on the right of way of the defendant company. If he was traveling on that right of way and not on the highway when he was struck, the company is not liable. The inference that he was so struck is certainly as reasonable and as probable under the facts we have recited, as the other inference on which the plaintiff's case entirely rests, to wit, that he was struck while attempting to cross on Hazelwood avenue. In such cases, to permit a jury to draw the inference which convicts the defendant of negligence is but to sanction their conjecture as to the manner in which the deceased...