Dampman v. Pennsylvania Railroad Co.

• Decision Date: 05 March 1895
• Docket Number: 227
• Citation: 166 Pa. 520,31 A. 244
• Parties: Peter Dampman v. Pennsylvania Railroad Co., Appellant
• Court: Pennsylvania Supreme Court

31 A. 244

166 Pa. 520

Peter Dampman v. Pennsylvania Railroad Co., Appellant

No. 227

Supreme Court of Pennsylvania

March 5, 1895

Argued February 13, 1895

Appeal, No. 227, July T., 1894, by defendant, from judgment of C.P. Chester Co., Aug. T., 1893, No. 139, on verdict for plaintiff. Affirmed.

Trespass for personal injuries. Before WADDELL, P.J.

At the trial it appeared that on January 12, 1893, plaintiff, a passenger on defendant's train, was injured by the derailing and overturning of the car in which he was riding. Evidence for the plaintiff tended to show that, at the point where the accident occurred, there was a rail broken one third through, with the surface of the fracture covered with rust; that the rail had been used for ten years, and looked old and worn.

The defendant called as a witness Harrison Hendricks, the track foreman of the Downington and Lancaster Railroad, and in charge of the section where the accident occurred, who testified in chief as to the condition of the track and its daily inspection by his subordinates. Upon cross-examination he was asked by the counsel for the plaintiff if he had not in a conversation held on the day of the accident with Frank Ludwick, Richard Plank, Dr. Larkin, Logan Rogers, Joseph Dowlin and Edward Ray, said that the accident was not his fault, for he had reported this rail to the Pennsylvania Railroad Company as being a bad rail, that should be removed that these men should not blame him, for he could not keep the road in repair, because they gave him old rails off the Pennsylvania Railroad, and that, showing other rails down in the track, he had said, "Here is another rail just like the rail that broke." All these conversations and statements the witness denied. In rebuttal, Ludwick, Plank and all the persons above named, were called, and, under objection by the defendant's counsel, permitted by the court to testify as to the conversations had with Hendricks alluded to in his cross-examination. [1-6]

Defendant offered evidence which tended to show that the track was in good condition, and that the rail had been broken by the cold; the thermometer being twelve to fourteen degrees below zero.

Defendant's point among others was as follows:

5. There is no evidence in this case of negligence upon the part of the defendant in either the construction of its track or the transportation of its passengers, and the verdict of the jury must be for the defendant. Answer: I cannot affirm that point, because, as I have already said to you, that if you are satisfied Mr. Dampman was injured and he was a passenger on this road for compensation, then the law presumes negligence, and the burden is upon the other side to remove that presumption; therefore, the evidence in the case is directed to the removal of that presumption. If the defendant has removed that presumption by its evidence, and the plaintiff has not met that, then your verdict will be for the defendant, but I cannot affirm this point in this language. [7]

Verdict and judgment for plaintiff for $3,920.38 and six cents costs. Defendant appealed.

Errors assigned were (1-6) rulings on evidence; (7) above instruction, quoting bill of exceptions, and instruction.

Judgment affirmed.

John J. Pinkerton, for appellant, cited, on the question of evidence: Pennsylvania R.R. v. Books, 57 Pa. 339; Erie Ry. v. Decker, 78 Pa. 293; Huntingdon & Broad Top Mountain R.R. v. Decker, 82 Pa. 119; 1 Greenleaf on Evidence, sec. 449, p. 618; Griffith v. Eshelman, 4 Watts, 51; Hildeburn v. Curran, 65 Pa. 59; Elliott v. Boyles, 31 Pa. 65; Del. & Hudson Canal Co. v. Barnes, 31 Pa. 193; Erie & Wyoming Val. R.R. v. Smith, 23 W.N.C. 511; Penna. R.R. v. Butler, 57 Pa. 335; on the question of negligence: Fredericks v. Northern Cent. R.R., 157 Pa. 103; McPadden v. New York Cent. R.R., 44 N.Y. 478; Deyo v. New York Cent. R.R., 34 N.Y. 6; Lehigh Val. R.R. v. Brandtmaier, 113 Pa. 618; 2 Rorer on Railroads, 955; Sherman & Redfield on Negligence, 3 ed. p. 317, § 270; Meier v. Pennsylvania R.R., 64 Pa. 225; Cotton v. Wood, 98 Common Law Rep. 566.

William Butler, of Butler & Windle, for appellee, cited, on the question of evidence: Rothrock v. Gallagher, 91 Pa. 113; 1 Greenleaf on Evidence, ed. of 1876, § 462, p. 520; Com. v. Werntz, 161 Pa. 591; Com. v. Hunt, 4 Gray (Mass.) 421; Dawson v. Pittsburg, 159 Pa. 317; on the question of negligence: Fredericks v. North Cent. R.R., 157 Pa. 103; Deyo v. New York Cent. R.R., 34 N.Y.6.

Before STERRETT, C.J., McCOLLUM, MITCHELL, DEAN and FELL, JJ.

OPINION

PER CURIAM:

Restricted as it clearly was, to the single purpose of contradicting Mr. Hendricks, we think the testimony referred to in the first six specifications of error was rightly admitted. In ruling on one of the offers, the learned trial judge said: "We will admit this testimony simply...