Coll v. Easton Transit Co.

• Decision Date: 12 April 1897
• Docket Number: 94
• Parties: Sophia C. Coll, Appellant, v. Easton Transit Company
• Court: Pennsylvania Supreme Court

37 A. 89

180 Pa. 618

Sophia C. Coll, Appellant, v. Easton Transit Company

No. 94

Supreme Court of Pennsylvania

April 12, 1897

Argued March 10, 1897

Appeal, No. 94, Jan. T., 1897, by plaintiff, from judgment of C.P. Northampton Co., Feb. T., 1894, No. 15, refusing to take off nonsuit. Reversed.

Trespass for death of plaintiff's husband. Before SCHUYLER, P.J.

At the trial it appeared that plaintiff's husband, William Coll was run over and killed by one of defendant's cars on the night of March 12, 1893.

The circumstances of the accident are stated in the opinion of the Supreme Court.

At the trial Henry Laubach, a witness for plaintiff, under objection and exception, testified as follows:

"Q. Now, Mr. Laubach, state what was said by either of the employees of the company when you came to the rear of the car and Coll was lying on the ground with his feet cut off? A. I cannot tell the exact words, but Dalton said about running ahead of the car and trying to pull him off and could not get him off; did not have time enough to get him off the track he had tried to get him off the track."

The court subsequently struck this testimony out. [2]

Plaintiff offered to prove that on the night of the accident immediately after Coll had been found upon the track on the Glendon road, the employees of the transit company, the motorman and conductor of the car which ran over plaintiff's deceased husband, took up the body of Coll as he lay upon the ground after he had been run over, and put him upon the car, and instantly started down the Glendon road a distance of a block and a half to the Lehigh Valley R.R. station, where the conductor and the motorman, with others, removed Coll from the car to the South Easton station of the L.V.R.R. This was within a few moments, not over two minutes, from the time they lifted Coll's body from the ground at the place of the accident, and at that time and place, at the South Easton station, within two minutes after the accident, while the employees of the company upon the car which ran over Coll had him in their charge and possession, they stated to a number of persons in the station that they had seen Coll lying upon the track in front of the car, and the motorman of the car stated that he could have stopped that car from the time that he had seen Coll upon the track, lying down helpless, but that he, the motorman, did not stop the car because he saw that Dalton, the lineman who had been on the car in the cab with the motorman, and who had left the cab and ran beside the car, and down in front of it, at the time when Coll was upon the track and was pulling Coll from the track, and he supposed, taking into consideration the distance to Coll from the car and the speed of the car, that Dalton would have the body of Coll pulled or removed from the track before the car reached Coll, and that the same statement was made at that time and place aforesaid repeatedly by said motorman of said car in the presence of a large number of by-standers.

The offer was objected to as incompetent and irrelevant, and because such declarations at the time and place stated cannot be a part of the res gestae, and are hearsay.

By the Court: Objection is sustained. Plaintiff excepts and bill sealed. [3]

Plaintiff offered to prove by A. K. Cyphers, secretary of the borough of South Easton, ordinances and resolutions of the town council of the borough of South Easton with reference to keeping and maintaining their tracks, permission to lay track, condition in which track was to be laid in South Easton, including Glendon road, where the accident in question happened; that the company by these ordinances or resolutions were to lay their tracks and put the street back in the same condition as it was before they laid their tracks, and maintain it in that condition, and other matters of similar nature embodying quite a number of resolutions which appear in the minutes of council.

The offer was objected to as incompetent and irrelevant, so far as it contains a distinct proposition to prove; such proof is immaterial and irrelevant under the statement of the cause of the action as contained in the statement.

By the Court: Objection sustained; bill sealed. [4]

Plaintiff further offered to prove that the Easton Transit Co., the defendant in this case, received permission from the borough of South Easton to lay its tracks on certain designated streets of said borough, one of which designated streets was Glendon road upon which the accident in question happened, and where Coll, the plaintiff's deceased husband, received the injuries from which he died; that in consequence of the said permission from the municipal authorities of the borough of South Easton, the Easton Transit Co. laid their tracks upon the said Glendon road in the borough of South Easton, and after having dug up the street and laid their ties and rails upon the street that they began to run their cars without having first filled in the ground between the ties; without having filled earth in between the rails of the track, and from the time in the fall of 1892, when said Easton Traction Co. laid their rails along said Glendon road, up until the date of the accident when Coll received the injuries from which he died, the Easton Transit Co. never replaced the earth between the ties or between the rails, and that the whole track, ties and rails were exposed upon the night of the accident, the same as they were upon the day on which they were laid down, in the excavated portion of the street, and that dirt from the excavated portion of the street where the track was laid was thrown out into the middle of the street, and there was no footwalk on the south side of the street; the only footwalk being the cinder walk on the north side of the street, upon a portion of which cinder walk said transit company had laid their tracks as aforesaid without filling them in.

The offer was objected to as incompetent and irrelevant, except so far as it is an offer to prove the physical condition of the ground on the night of the accident.

By the Court: Objection is sustained; bill sealed. [5]

The court entered a compulsory nonsuit which it subsequently refused to take off.

Errors assigned were (1) refusal to take off nonsuit; (2-5) rulings on evidence, quoting the bill of exceptions.

As the plaintiff was allowed to show the actual physical condition of the road at the time of the accident she was not injured by the exclusion of the testimony referred to in the fourth and fifth assignments, and as the pleadings stood at the time of the trial it is doubtful whether the testimony was admissible. The first, second and third assignments are sustained, and the judgment is reversed with a procedendo.

William C. Shipman, with him Henry S. Cavanaugh, for appellant. -- The case was for the jury: Greeley v. Pass. Ry., 153 Pa. 218; Gibbons v. Ry. Co., 155 Pa. 279; Kestner v. Traction Co., 158 Pa. 422; Kraut v. Ry., 160 Pa. 327.

The presumption of the law is that the deceased exercised proper care: Schum v. R.R., 107 Pa. 8; Scranton v. Dean, 2 W.N.C. 467; Allen v. Willard, 57 Pa. 374.

The declarations of Dalton should have admitted: Brunner v. Am. Tel. & Telephone Co., 160 Pa. 300. Declarations of co-trespassers during the execution of the trespass are admissible as part of the res gestae: Nudd v. Burrows, 91 U.S. 438; McCabe v. Burns, 66 Pa. 356; Brown v. Parkinson, 56 Pa. 336; Scott v. Baker, 37 Pa. 330; Kelsey v. Murphy, 26 Pa. 78; Baylis v. Omnibus Co., 173 Pa. 378; Abbott's Trial Evidence, 589; 21 Am. & Eng. Ency. of Law, 108; Schnur v. Traction Co., 153 Pa. 29; Walter v. Gernant, 13 Pa. 515; Norwich Transportation Co. v. Flint, 80 U.S.3. The declarations of the motorman should have been admitted: Com. v. Werntz, 161 Pa. 591; Shafer v. Lacock, 168 Pa. 497; Ins. Co. v. Mosley, 75 U.S. 397.

The ordinances should have been admitted: McNerney v. City of Reading, 150 Pa. 611; Phila. & Reading R.R. v. Ervin, 89 Pa. 71; Connor v. Traction Co., 173 Pa. 602; R.R. Co v. James, 1 W.N.C. 68; Yoders v. Twp., 172 Pa. 447.

Russell C. Stewart and W. S. Kirkpatrick, with them M. Kirkpatrick, for appellee. -- The case was properly withdrawn from the jury: Gibbons v. Wilkes-Barre, etc., St. Ry., 155 Pa. 279; Kestner v. Traction Co., 158 Pa. 422; Kraut v. Ry., 160 Pa. 327.

Whether a given state of facts admitted or proved constitutes negligence is generally a question of law to be declared by the court: Phila., Wil. & B.R.R. v. Stinger, 78 Pa. 225; Gerety v. R.R., 81 Pa. 274. When facts are not shown from which negligence may reasonably be inferred, the case should not be submitted to the jury: Phila. & R.R. v. Yeager, 73 Pa. 125; Phila. & R.R. v. Heil, 5 W.N.C. 61; Ballard v. N.Y., etc., R.R., 126 Pa. 141; Chilton v. Central Traction Co., 152 Pa. 426; Flanagan v. People's Pass. Ry., 163 Pa. 103; Fleishman v. Neversink Mt. R.R., 174 Pa. 510; Funk v. Electric Traction Co., 175 Pa. 564; Reilley v. Traction Co., 176 Pa. 337; Yingst v. Lebanon, etc., St. Ry; 167 Pa. 438; Phila., W. & B.R.R. v. Stinger, 78 Pa. 219; Phila. Traction Co. v. Bernheimer, 125 Pa. 615; Steiner v. Phila. Traction Co., 134 Pa. 200; Gillis v. Penna. R.R., 59 Pa. 129; B. &. O.R.R. v. Schwindling, 101 Pa. 258; R.R. v. Bell, 122 Pa. 58.

Plaintiff was guilty of contributory negligence: Winter v. Federal St., etc., Ry., 153 Pa. 26; Gilmore v. Federal St., etc., Ry., 153 Pa. 31.

Except at crossings one who steps on a railroad track does so at his own peril: Mulherrin v. D., L. & W.R.R., 81 Pa. 366; P., F.W. & C.Ry. v. Collins, 87 Pa. 405; R.R. v. Norton, 24 Pa. 465.

One who is struck by a moving train, which was plainly visible from the point he occupied, when it became his duty to stop, look and listen, must be...