Grimes v. Pa. R. Co.

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: SADLER, J.
• Citation: 289 Pa. 320,137 A. 451
• Parties: GRIMES v. PENNSYLVANIA R. CO.
• Decision Date: 11 April 1927

137 A. 451
289 Pa. 320

GRIMES
v.
PENNSYLVANIA R. CO.

Supreme Court of Pennsylvania.

April 11, 1927.

137 A. 451

Appeal from Court of Common Pleas, Lawrence County; E. Lawrence Hildebrand, President Judge.

Action by Lucy J. Grimes against the Pennsylvania Railroad Company. Verdict for plaintiff, and from a judgment for defendant notwithstanding the verdict, plaintiff appeals. Affirmed.

Argued before MOSCHZISKER, C. J., and FRAZER, WALLING, KEPHART, SADLER, and SCHAFFER, JJ.

James A. Chambers (of Chambers & Shumaker), of New Castle, for appellant.

A. Martin Graham (of Graham & Mathews), of New Castle, for appellee.

SADLER, J. The plaintiff, widow of one Grimes, brought this action to recover damages sustained by the death, on December 24, 1923, of her husband. After dark on the evening of that day, which was clear, without mist, rain, or snow, the decedent approached the four-track railroad of the defendant in his automobile truck, ordinarily used in the delivery of milk. There was a slight downward

137 A. 452

grade to the crossing with which he was familiar. At 10 feet from the first rail, he could observe for 583 feet in the direction from which the train approached; when 23 feet away, 474 feet, and farther back for a much longer distance, due to the rising ground. When the third track was reached, the car was struck by a work train of the defendant, coming from the south, having a caboose in front, followed by an engine with its tender attached. The deceased was carried about 300 feet, and the truck for 900 feet until the train came to a standstill. Oil from the motor car caused the rails to be slippery, and this interfered with the stopping.

The negligence charged in the statement filed was the running at excessive speed, without giving signal by whistle or bell, and the placing of an unlighted car in front of the engine. A compulsory nonsuit was denied at the conclusion of the trial, as were binding instructions, and the questions of fact involved submitted to the jury, which rendered a verdict for the plaintiff. On motion, judgment n. o. v. was entered for the defendant on the ground that no negligence was proved, and, further, because of the contributory negligence of the decedent. From this ruling an appeal has been taken. Or course, in our consideration of the case, the competent testimony of plaintiff must be regarded as disclosing the true version of what took place. She is likewise entitled to the benefit of all proper inferences to be drawn therefrom. The burden was on the claimant to establish negligence of the defendant by proof of facts which did not, in themselves, show the husband guilty of contributory negligence.

The placing of the caboose in front of the engine is charged to have indicated lack of due care, but is not enough to establish absence of proper caution. Unger v. Railroad, 217 Pa. 106, 66 A. 235; Paul v. Railroad, 231 Pa. 338, 80 A. 365. Ann. Cas. 1912B, 1132; Hess v. Railroad, 181 Pa. 492, 37 A. 568. Appellant claims, however, that there were no lights on the front car, so as to give warning, and, had this fact been established affirmatively, the question would have been for the jury. Forno v. Railroad, 234 Pa. 538, 83 A. 406; Johnson v. P. & R. R. R. Co., 232 Pa. 378, 81 A. 415. Unfortunately for plaintiff, no evidence was produced showing this condition existed, though certain witnesses, who arrived on the scene after the accident, said they saw none. On the other hand, there was positive evidence that the glare of the electric light of the engine was observable, since it projected its rays beyond the side of the front car, a factor to be considered (Hess v. Railroad, supra), and three lighted lanterns were on the platform of the caboose. These were knocked off, two broken and one extinguished as a result of the impact with the auto. The witnesses called for plaintiff did not make any observations until after the accident, and did not testify as to the condition when the crossing was reached by the deceased. The negative evidence cannot control in the face of the positive assertions disclosed by the record.

A like objection holds as to testimony submitted to prove there was no signal of the approach of the train. No one called by plaintiff could definitely state that such had not been given, and those who did offer evidence were not located at such positions as to permit the...