Jones v. Lehigh & New England Railroad Co.

• Citation: 51 A. 590,202 Pa. 81
• Decision Date: 10 March 1902
• Docket Number: 10
• Parties: Jones, Appellant, v. Lehigh and New England Railroad Company
• Court: Pennsylvania Supreme Court

51 A. 590

202 Pa. 81

Jones, Appellant, v. Lehigh and New England Railroad Company

No. 10

Supreme Court of Pennsylvania

March 10, 1902

Argued February 3, 1902

Appeal, No. 10, Jan. T., 1902, by plaintiff, from order of C.P. Lehigh Co., April T., 1901, No. 1, refusing to take off nonsuit in case of John R. Jones and Elizabeth R. Jones v Lehigh and New England Railroad Company and Henry Bittner. Affirmed.

Trespass to recover damages for death of one of plaintiff's children, and injuries to another. Before ALBRIGHT, P.J.

At the trial it appeared that on August 12, 1900, plaintiff's two daughters were riding in an omnibus, and that when the omnibus was going over defendants' tracks at a public crossing, it was run into by a train, and one of the children was killed, and the other injured. The circumstances of the accident are stated in the opinion of the Supreme Court. The court entered a compulsory nonsuit which it subsequently refused to take off.

Error assigned among others was refusal to take off nonsuit.

The nonsuit was properly entered, and the judgment is affirmed.

Harry C. Cope and John M. Gardner, for appellants. -- It is the duty of a railroad to have upon its engines running through a populous country over public crossings, good and sufficient appliances with which to control their movements, and also to maintain them in good working order to prevent collisions.

Where the testimony of a party makes out a clear case the contradictory testimony of another witness could not destroy it as a matter of law, even though such witness had been called by himself: Kohler v. Penna. R.R. Co., 135 Pa. 346; Ely v. Pittsburg, etc., Ry. Co., 158 Pa. 233.

The court should have submitted to the jury the question of fact as to whether the signals were given on the occasion in question.

Edward J. Fox and Robert E. Wright, with them H. M. Hagerman, for appellees. -- The nonsuit was properly entered: Newhard v. Penna. R.R. Co., 153 Pa. 417; Bornscheuer v Consolidated Traction Co., 198 Pa. 332; Graham v. Penna R.R. Co., 139 Pa. 149; Dooner v. Delaware, etc., Canal Co., 164 Pa. 17; Platz v. McKean Twp., 178 Pa. 601; Allegheny Heating Co. v. Rohan, 118 Pa. 227; Melchert v. Smith Brewing Co., 140 Pa. 448; Savitz v. Lehigh, etc., R.R. Co., 199 Pa. 218; Eisenbrey v. Philadelphia, 24 W.N.C. 231; Swanson v. Crandall, 2 Pa. Superior Ct. 85; Trich v. South Side Pass. Ry. Co., 117 Pa. 390; Howard v. Union Traction Co., 195 Pa. 391; Herr v. City of Lebanon, 149 Pa. 223; McAnally v. Penna. R.R. Co., 194 Pa. 464; Heister v. Fawn Twp., 189 Pa. 253; Card v. Columbia Twp., 191 Pa. 254.

Before McCOLLUM, C.J., DEAN, FELL, BROWN, MESTREZAT and POTTER, JJ.

OPINION

MR. JUSTICE FELL:

An omnibus drawn by four horses and containing more than twenty people reached a crossing of the defendant's road as a train approached it. A collision ensued in which eight of the passengers were killed and as many more injured. The driver exercised no care whatever to avoid danger, but as his negligence is not, as the law is now settled, to be imputed to the occupants of the vehicle (Bunting v. Hogsett, 139 Pa. 363), we have to consider only whether there is sufficient evidence of the negligence of the defendant to carry the case to the jury.

Two grounds of negligence were alleged: one that the engineer did not give timely notice of the approach of the train; the other that he did not stop the train after he had seen the omnibus on the track, either because the appliances furnished for that purpose were defective, or because he failed to use them properly. In support of the first ground, the plaintiff testified that he was in a carriage an eighth of a mile back of the omnibus, and because of his solicitude for the safety of his children, who were in the omnibus, he listened for signals of the approach of the train and heard none. A witness called by him testified that the whistle was sounded six times when the engine was at a point not fixed with precision as to distance, but which was at the south end of a cut, the north end of which was...