Huntsinger v. Trexler

• Decision Date: 27 May 1897
• Docket Number: 536
• Citation: 181 Pa. 497,37 A. 574
• Parties: Lewis Huntsinger v. E. G. Trexler, H. C. Trexler and J. H. Turrell, trading as Trexler & Turrell Lumber Company, Appellants
• Court: Pennsylvania Supreme Court

37 A. 574

181 Pa. 497

Lewis Huntsinger v. E. G. Trexler, H. C. Trexler and J. H. Turrell, trading as Trexler & Turrell Lumber Company, Appellants

No. 536

Supreme Court of Pennsylvania

May 27, 1897

Argued March 15, 1897

Appeal, No. 536, Jan. T., 1896, by defendants, from judgment of C.P. Sullivan Co., Sept. T., 1894, No. 64, on verdict for plaintiff. Affirmed.

Trespass to recover damages for personal injuries. Before DUNHAM, P.J.

At the trial it appeared that the plaintiff was employed by the defendants as a brakeman on a log train. On June 24, 1893 the plaintiff was injured in a collision, and the evidence tended strongly to show that the accident was caused by acts of negligence of omission of George Brockham, the conductor of the train upon which the plaintiff was brakeman. The evidence also tended to show that Brockham was an incompetent person to employ as conductor, and that this was known or ought to have been known to the defendants.

Defendants' point and answer thereto were as follows:

1. Under all the evidence in the case the verdict must be for the defendants. Answer: This we decline to charge you, but leave it to you under the evidence and the law as we have given it to you.

Verdict and judgment for plaintiff for $1,250. Defendants appealed.

Error assigned was above instruction, quoting it.

Judgment affirmed.

Henry Streeter and T. J. Ingham, with them J. G. Scouten, R. J. Thomson and F. H. Ingham, for appellants. -- The evidence of defendants' negligence was not sufficient for the jury: Snodgrass v. Carnegie Steel Co., 173 Pa. 228; Reiser v. Penna. Co., 152 Pa. 38; Kennelty v. R.R., 166 Pa. 60; Rumsey v. R.R., 151 Pa. 74; 14 Am. & Eng. Ency. of Law, 845; Frazier v. R.R., 38 Pa. 104; Weger v. R.R., 55 Pa. 460; Moules v. D. & H. Canal Co., 141 Pa. 632; Mulhern v. Coal Co., 161 Pa. 270; 1 Weimer's R.R. Law, p. 605; Cole v. N.C.R.R., 12 Pa. C.C. 573; R.R. v. Hughes, 119 Pa. 301; Hoover v. R.R., 154 Pa. 362; Bridge Co. v. Newberry, 96 Pa. 246; Hartman v. R.R., 144 Pa. 345; Mensch v. R.R., 150 Pa. 598; Rehm v. R.R., 164 Pa. 91; Reese v. Clark, 146 Pa. 465.

D. C. DeWitt, with him John H. Cronin and Alphonsus Walsh, for appellee, cited Lebbering v. Struthers, Wells & Co., 157 Pa. 312.

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

OPINION

MR. CHIEF JUSTICE STERRETT:

The only error assigned by the defendants is the refusal of the learned trial judge to withdraw the case from the jury by instructing them in the language of their point: "That under all the evidence in this case the verdict must be for the defendants."

In view of the testimony, properly before the jury, it would have been manifest error to have thus instructed them. It was claimed by the plaintiff that the proximate cause of the collision in which he was injured was not the negligence (properly speaking) of George Brockham, the conductor of defendants' "log train," but his manifest unskilfulness, inexperience and incompetency for the position of conductor of any train; and testimony, tending not only to prove the fact of his incompetency, etc., but that the defendants, with full knowledge of the facts, employed and put him in charge of the train, etc., was introduced. If this testimony was believed by the jury, it is impossible to conceive how, under the charge, they could have done otherwise than find as they did. The plaintiff's contention in that regard was fairly and adequately presented to the jury by the learned judge, who instructed them that if Brockham's omission to protect the "log train," of which he was conductor, against the approaching train, of the coming of which he had been duly notified, was because of his incompetency and want of skill, -- "because he did not know any better, and did not know how to perform his duties, and thereby injury occurred, then, if the defendants were negligent in employing this man and...