Keiser v. Lehigh Valley R. Co.

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: ELKIN, J.
• Citation: 61 A. 903,212 Pa. 409
• Decision Date: 22 June 1905
• Parties: KEISER v. LEHIGH VALLEY R. CO.

61 A. 903
212 Pa. 409

KEISER
v.
LEHIGH VALLEY R. CO.

Supreme Court of Pennsylvania.

June 22, 1905.

Appeal from Court of Common Pleas, Luzerne County.

Action by Mattie E. Keiser against the Lehigh Valley Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Argued before MITCHELL. C. J., and BROWN, MESTREZAT, POTTER, and ELKIN, JJ.

Paul J. Sherwood, for appellant. J. B. Woodward, for appellee.

ELKIN, J. The plaintiff in her statement of claim charged the defendant company with negligence in running the train, which caused the accident, at an unusual time and excessive rate of speed, and without giving due warning of its approach to the crossing. The appellee cannot be held liable in damages unless it affirmatively appears from the evidence that there was negligence in some or all of these respects. What does the evidence disclose? The train was running after midnight about 25 minutes behind its schedule time. This is neither unusual nor exceptional, and is not negligence within the meaning of the law, so as to make the defendant liable in damages. Nor does the testimony show that the train was running at an excessive rate of speed. The witnesses of the appellant did not fix the rate of speed. It is true one witness testified that the train was running very fast; but inasmuch as he did not say how fast, nor fix any standard by which the speed of the train could be ascertained, his testimony is without value in this respect. The exact rate of speed, shown by the schedule and fixed by the train record made by the conductor at the time, showed the rate of speed to be a little over 35 miles an hour. It was a fast passenger train with two locomotives, and this rate of speed is not excessive for such a train. It is clear, therefore, that the appellant failed to establish her allegations of negligence that the train was running at an unusual time or at an excessive rate of speed.

The only question left for us to consider in reference to the alleged negligence of the defendant is whether through its employés it failed to give due warning of the approach of the train to the crossing. The appellee contends that it performed its duty

61 A. 904

in this respect by providing headlights for its engines and by ringing the bell and blowing the whistle at the proper places before reaching the crossing where the accident occurred. The appellant contends that these signals were not given. There is no serious dispute about the...