Confer v. Pennsylvania Railroad Co.
| Decision Date | 15 June 1904 |
| Docket Number | 212 |
| Citation | 58 A. 811,209 Pa. 425 |
| Parties | Confer, Appellant, v. Pennsylvania Railroad Company |
| Court | Pennsylvania Supreme Court |
Argued April 18, 1904
Appeal, No. 212, Jan. T., 1903, by plaintiff, from order of C.P. Centre Co., April T., 1901, No. 112, entering judgment for defendant non obstante veredicto in case of G. J. Confer v. Pennsylvania Railroad Company. Reversed.
Trespass to recover damages for personal injuries. Before LOVE, P.J.
The circumstances of the accident are stated in the opinion of the Supreme Court.
Verdict for plaintiff for $4,000. The court entered judgment for defendant non obstante veredicto. Plaintiff appealed.
Error assigned was in entering judgment for defendant non obstante veredicto.
The first, second, fifth and sixth assignments of error are sustained and the judgment is reversed. It is further ordered that the record be remitted to the court below, with directions to enter judgment upon the verdict in favor of the plaintiff.
Ellis L. Orvis, for appellant. -- This case is ruled by Elston v. Delaware, etc., R.R. Co., 196 Pa. 595.
In order to enter judgment against a verdict, the judge below cannot himself draw conclusions of fact from the evidence these are determined by a jury: Winchester v Bennett, 54 Pa. 510; Wilde v. Trainor, 59 Pa. 439; Com. to use v. McDowell, 86 Pa. 377.
It is error to submit a particular fact in a cause to the jury and after the fact has been found by them to enter judgment for the party against whom it is found on the ground that the evidence is insufficient to establish it: North American Oil Co. v. Forsyth, 48 Pa. 291; Butts v. Armor, 164 Pa. 73.
John Blanchard, with him Edmund Blanchard, for appellee. -- Plaintiff was guilty of contributory negligence: Gangawer v. P. & R.R.R. Co., 168 Pa. 265; Kinter v. Penna. R.R. Co., 204 Pa. 497; Carroll v. Railroad Co., 12 W.N.C. 348; Marland v. Railroad Co., 123 Pa. 487; Myers v. Railroad Co., 150 Pa. 386; Holden v. Railroad Co., 169 Pa. 1; Derk v. Railway Co., 164 Pa. 243; Fox v. Railroad Co., 195 Pa. 538.
Before MITCHELL, C.J., DEAN, BROWN, POTTER and THOMPSON, JJ.
On the morning of October 27, 1900, the plaintiff was injured at a grade crossing of the public highway, on the tracks of the defendant company in the borough of Howard, Centre county. He was driving southward along the main street of the borough in a spring wagon drawn by two horses. At the point where the accident occurred the street crosses three parallel tracks, the northernmost two being sidings, and the third the main track of the railroad. The three tracks have a total width of twenty-eight feet from the outer rail to outer rail.
The plaintiff testified that on the day of the accident as he approached the crossing, there was a freight train on one of the sidings, and a wreck train or gravel train on the other. The former extended across the street and he stopped his team in front of a store forty feet or more distant from the track. Then he drove on, to a point twenty or twenty-five feet from the tracks, where he stopped again, rose from his seat, and looked and listened for the approach of a train on the main track. He saw and heard nothing, and the freight cars having meanwhile been moved back from the street and two other wagons having crossed from the opposite side, he drove upon the tracks. As he crossed the main track his wagon was struck by a special freight train coming from the east and he was injured. He testified that no whistle was sounded nor bell rung to give notice of the approach of the train which struck him.
Plaintiff's account of the accident was corroborated by other witnesses and it was shown that the point where he stopped, looked and listened was the place where people usually stopped before crossing the railroad.
The negligence alleged was failure to give warning of the approach of the train. Nine witnesses testified that they were in position to hear and observe whether the whistle was sounded or bell rung by the approaching train, and that they heard neither whistle nor bell. Some of them had special reason to take notice and they were almost all positive that no warning whatever was given.
The defendant offered testimony to show that the whistle was sounded and that if the plaintiff had looked and listened, as he claimed to have done, he could have both heard and seen that the freight was coming.
Upon the trial the defendant presented two points for charge:
First. The undisputed evidence in this case proves that the plaintiff was guilty of contributory negligence as a matter of law and therefore the plaintiff cannot recover and the verdict must be for the defendant and the jury are instructed so to find.
Second. There is no evidence in this case that entitles the plaintiff to recover and therefore the verdict must be for the defendant and the jury are instructed so to find.
To each of these the court answered, The question of law raised by this point is reserved for further consideration.
At the conclusion of the charge the court submitted to the jury five points in writing, saying: Now, for my own satisfaction hereafter, I desire you to return answers to the following questions, which will be sent out with you to be returned with your verdict:
1. Do you find from the evidence that the whistle was blown and the bell rung on the freight train that collided with the plaintiff, as testified to by defendant's witnesses?
2. Do you find from the evidence that the rear car of the local freight train, standing on the warehouse siding, was west of the siding, about opposite the platform of the freight depot?
3. Do you find from the evidence that there were no cars west of the crossing standing upon the middle track of the railroad so as to obstruct the view of the plaintiff?
4. Do you find that if the plaintiff stopped at twenty-five feet from the north track and looked and listened, that at that point the station, and cars on the track west of the crossing would obscure his view of the track in looking west?
5. Do you find from the evidence that had the plaintiff approached within ten or fifteen feet of the north track he could have had a better and...
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