Hugo v. Baltimore & O. R. Co.
| Decision Date | 06 January 1913 |
| Docket Number | 182 |
| Citation | 238 Pa. 594,86 A. 482 |
| Parties | Hugo, Appellant, v. Baltimore & Ohio R.R. Company |
| Court | Pennsylvania Supreme Court |
Argued October 31, 1912
Appeal, No. 182, Oct. T., 1912, by plaintiff, from judgment of C.P. No. 3, Allegheny Co., Feb. T., 1910, No. 374, in favor of defendant n.o.v. in case of Leona Hugo v. Baltimore & Ohio Railroad Company. Reversed.
Trespass to recover damages for the death of plaintiff's husband. Before REID, J.
The facts are stated in the opinion of the Supreme Court.
The jury rendered a verdict in favor of the plaintiff for $3,000.00.
The court subsequently entered judgment for defendant n.o.v Plaintiff appealed.
Error assigned was the action of the court in entering judgment for defendant n.o.v.
Judgment reversed and is here entered for appellant on the verdict.
Meredith R. Marshall, with him Rody P. Marshall, for appellant. -- The case was for the jury: Beach v. R.R. Co., 212 Pa. 567; Bard v. Ry. Co., 199 Pa. 94; Cromley v. Penna. R.R. Co., 208 Pa. 445; Muckinhaupt v. Erie R.R. Co., 196 Pa. 213; Cohen v. R.R. Co., 211 Pa. 227.
William Watson Smith, with him Gordon & Smith, for appellee. -- The evidence of defendant's negligence was not sufficient to go to the jury: Knox v. Ry. Co., 202 Pa. 504; Anspach v. Philadelphia, &c., Ry. Co., 225 Pa. 528; Holland v. Kindregan, 155 Pa. 156; Lonzer v. R.R. Co., 196 Pa. 610.
The deceased was guilty of contributory negligence: Kraus v. R.R. Co., 139 Pa. 272; Hughes v. Canal Co., 176 Pa. 254; Meitzner v. B. & O.R.R. Co., 224 Pa. 352; Ayers v. Railway Co., 201 Pa. 124; Cohen v. Railroad Co., 211 Pa. 227; Aiken v. R.R. Co., 130 Pa. 380; Hamilton v. Central R.R. of N.J., 227 Pa. 137; Joyce v. B. & O.R.R. Co., 230 Pa. 1; Canfield v. R.R. Co., 208 Pa. 372; Myers v. B. & O.R.R. Co., 150 Pa. 386; Hess v. R.R. Co., 181 Pa. 492; Baker v. R.R. Co., 182 Pa. 336; Paul v. Ry. Co., 231 Pa. 338.
Before FELL, C.J., BROWN, POTTER, ELKIN and MOSCHZISKER, JJ.
At the trial this case was submitted to the jury and resulted in a verdict in favor of the plaintiff for $3,000.00. Subsequently, judgment non obstante veredicto for defendant upon the whole record was directed to be entered by the learned court below. From the judgment so entered this appeal was taken. There is but one assignment of error and that raises the single question whether upon the whole record the court was warranted in entering judgment for defendant in disregard of the verdict of the jury. In other words, under the testimony introduced at the trial, was it the province of the court, or of the jury, to pass upon and determine the questions of negligence, and of contributory negligence, involved in the case? On an evening in January 1909, after dark, the husband of appellant, while walking over a grade crossing upon a public street in the Borough of Braddock, was struck and killed by a passing engine of the defendant company. Excessive speed and failure to ring a bell, blow a whistle, or give other proper warning of the approach of the engine to the crossing, are the negligent acts charged and relied on to sustain a recovery. No one saw the decedent immediately before going upon the tracks, and no one but his wife, appellant here, saw him after he was committed to the crossing and at the exact time of the accident. In substance, she testified that her husband started out on the evening of the accident either to go up street, or to visit the home of his son; that he left the house by the side entrance as was his custom; that she went to the front of the house after he left for the purpose of calling to him to take the key if he was going up street, or to wait for her if he was going to his son's home; that she first saw him on the second track of the crossing; that as he proceeded on his way she noticed the engine rapidly approaching; that no bell was rung, no whistle blown and the engine had no headlight; that her husband had reached the fourth track when she saw him throw up his hands and as she thought jump to get out of the way of the engine; that after the engine passed she saw a man on the other side of the crossing going up the sidewalk who she thought was her husband and therefore concluded he was safe; that she then did some shopping and returned to her home before it occurred to her that the man she saw walking on the other side of the crossing might not have been her husband; that she then started out to make inquiry and when she reached the fourth track she saw a hat and a little further from the crossing, the dead body of her husband. This is a fair recital of the material facts to which appellant testified and her right to recover depends very largely upon this testimony. Was it sufficient to take the case to the jury on the question of defendant's negligence? Her testimony as to failure to ring a bell, blow a whistle, and that the engine had no headlight, was positive and direct. She was in a position where she could see and hear,...
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