Clark v. Lehigh Valley Railroad Co.

• Decision Date: 18 April 1904
• Docket Number: 67-1904
• Citation: 24 Pa.Super. 609
• Parties: Clark v. Lehigh Valley Railroad Company, Appellant
• Court: Pennsylvania Superior Court

24 Pa.Super. 609

Clark v. Lehigh Valley Railroad Company, Appellant

No. 67-1904

Superior Court of Pennsylvania

April 18, 1904

Argued January 15, 1904 [Syllabus Matter]

Appeal by defendant, from judgment of C.P. Luzerne Co.-1897, No. 28 on verdict for plaintiff in case of Rosanna Clark v. Lehigh Valley Railroad Company.

Trespass to recover damages for personal injuries. Before Ferris, J.

At the trial it appeared that on July 13, 1896, plaintiff, while a passenger on one of defendant's trains, was injured by the derailment of a train caused by the engine striking a cow. The defendant claimed that the presumption of negligence in favor of the passenger was rebutted by proof that the derailment was caused by a cow on the track. There was evidence that there were farms within a quarter of a mile of the place of the accident, and a witness testified that trains had been stopped on other occasions because of cows on the track.

The defendant offered to set up a release executed by the plaintiff. The facts as to this branch of the case are stated in the opinion of the Superior Court.

The court refused binding instructions for defendant.

Verdict and judgment for plaintiff for $ 1,000. Defendant appealed.

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

J. B Woodward, of Woodward, Darling & Woodward, with him H.W. Palmer, for appellant. -- The defendant's negligence not being established by the mere happening of the accident, the court below should have instructed the jury to return a verdict in favor of the defendant. The derailment of this train was due to an extraordinary contingency, the happening of an event which the defendant could not be expected reasonably to foresee, and against which, under the circumstances of the case, it should not be called upon to provide: Schaeffer v. Jackson Twp., 150 Pa. 145; Meier v. Penna. R. R. Co., 64 Pa. 225; Thomas v. Phila. & Reading R. R. Co., 148 Pa. 180; Fleming v. Pittsburg, etc., Ry. Co., 158 Pa. 130.

To set aside a solemn written instrument of this character, the evidence must be clear, precise and indubitable, evidence that would justify a chancellor in reforming or in totally abrogating the term of the instrument or the instrument itself: Penna. R. R. Co. v. Shay, 82 Pa. 198; Rowand v. Finney, 96 Pa. 192; Stull v. Thompson, 154 Pa. 43; Wojciechowski v. Spreckels Sugar Refining Co., 177 Pa. 57; Poundstone v. Jones, 182 Pa. 574 (581); Ivery v. Phillips, 196 Pa. 1; DeDouglas v. Traction Co., 198 Pa. 430; Streator v. Paxton, 201 Pa. 135; Ogden v. Traction Co., 202 Pa. 480.

Edward A. Lynch, with him Charles Leroy Robbins and John F. Shea, for appellee. -- Cattle being on a railroad at the time of an accident raises a question of negligence, and whether it is imputable to the company is determinable by the jury: Lack. & B.R. R. Co. v. Chenewitch, 52 Pa. 382; Sullivan v. Phila. & Reading R. R. Co., 30 Pa. 234.

Where the execution of a receipt is denied, the party offering it must satisfy the jury by the weight of the evidence that it was executed by the other party: Mitchell v. Mitchell, 18 W.N.C. 439; McHugh v. Schuylkill Co., 67 Pa. 391.

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

OPINION

RICE, J.

The court charged the jury that the happening of an accident to the means of transportation of a railroad, resulting in an injury to a passenger, of itself raises a presumption of negligence on the part of the company, which presumption is sufficient to warrant a recovery of damages, unless rebutted by evidence on behalf of the company showing that the injury was not caused by its negligence or the negligence of its employees. The substantial correctness of this statement of the law, as applied to this case, is not disputed by the defendant's counsel; nor do they deny that the plaintiff's proofs fully met the requirements of the rule, as stated in Thomas v. Phila. & Reading R. R. Co., 148 Pa. 180, that to throw this burden upon the carrier, it must first be shown that the injury complained of resulted from the breaking of machinery, collision, derailment of cars, or something improper or unsafe in the conduct of the business, or in the appliance of transportation. But they argue, and requested the court so to charge, that the fact being virtually conceded by the plaintiff that the derailment of the train was caused by a collision with a cow that had strayed upon the track, and the further facts being established by the undisputed testimony of the defendant's witnesses that the train men made every possible effort to avoid the collision as soon as the cow was sighted and that the accident occurred at a point where cows had not been known to stray on the company's right of way, therefore, the presumption of negligence was rebutted and there could be no recovery. Apart from the objection that the affirmation of this proposition by the court would have withdrawn from the jury the question of the credibility of the defendant's witnesses, there is the other serious objection that although it might be true that these witnesses never had seen cows upon the track at that point, yet it would not necessarily follow that the company owed no duty to its passengers to foresee and provide against the happening of that contingency.

The defendant's...