Charles v. Lehigh Valley R. Co.

• Decision Date: 22 May 1914
• Docket Number: 389
• Citation: 245 Pa. 496,91 A. 890
• Parties: Charles, Appellant, v. Lehigh Valley Railroad Company
• Court: Pennsylvania Supreme Court

91 A. 890

245 Pa. 496

Charles, Appellant, v. Lehigh Valley Railroad Company

No. 389

Supreme Court of Pennsylvania

May 22, 1914

Argued April 14, 1914

Appeal, No. 380, Jan. T., 1913, by plaintiff, from judgment of C.P. LuzerneCo., Oct. T., 1909, No. 782, for defendant n.o.v. in case of Angeline Charles v. Lehigh Valley Railroad Company.Affirmed.

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

The facts appear in the following opinion of FULLER, P.J. sur defendant's motion for a new trial, and for judgment n.o.v.

This action was brought to recover damages for the death of plaintiff's husband, who was killed by a locomotive while crossing defendant's west-bound railroad track on Broad street in the City of Hazleton.

The specific and only negligence averred as the foundation of defendant's liability was the lack of warning,

In support of these motions defendant urges:

(1) The absence of affirmative proof establishing negligence of the defendant;

(2) The presence of affirmative proof establishing contributory negligence of the deceased.

The sum total of plaintiff's proof on both branches of the case was:

(1) The negative testimony of two witnesses that they heard no warning.

One of these witnesses did not arrive on the scene of the accident until the locomotive was out of sight, and the other was engaged in conversation with a friend.

A third witness when called and examined by the plaintiff respecting the occurrence was not asked about the warning at all, but the same witness when afterwards called by defendant testified that a warning was given.

(2) The bare presumption of law in favor of the deceased that he stopped, looked and listened.

This meagreness was met by the defendant with, (1) the positive testimony of five disinterested eye-witnesses, including the one above mentioned, in addition to the engineer on the locomotive, that the head-light was lit and the bell was rung; (2) the testimony of one disinterested eye-witness that deceased had his head down and hands in pocket and was apparently in a deep study; the testimony of still another disinterested eye-witness that he kept right on moving; the testimony of still another disinterested eye-witness that he walked straight in front of the locomotive; the testimony of still another disinterested eye-witness who walked with the deceased as far as the east bound track, saw the locomotive and stopped to let it go by, while the deceased with head bowed and...