Kelly v. Director General of Railroads

• Decision Date: 24 June 1922
• Docket Number: 174
• Parties: Kelly v. Director General of Railroads, Appellant
• Court: Pennsylvania Supreme Court

118 A. 436

274 Pa. 470

Kelly v. Director General of Railroads, Appellant

No. 174

Supreme Court of Pennsylvania

June 24, 1922

Argued April 18, 1922

Appeal, No. 174, Jan. T., 1922, by defendant, from judgment of C.P. Clearfield Co., May T., 1920, No. 88, on verdict for plaintiff, in case of Della Kelly v. Director General of Railroads, Agent. Reversed.

Trespass for death of plaintiff's husband. Before BELL, P.J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff for $10,000. Defendant appealed.

Errors assigned, inter alia, were various rulings and instructions appearing by the opinion of the Supreme Court, quoting record.

The second, fifth and sixth assignments are sustained and the judgment reversed with a new venire.

James P. O'Laughlin, with him Edward T. Kelley and Louis R. J Fenerty, for appellant, cited: Newhard v. R.R., 153 Pa. 417; Bernstein v. R.R., 252 Pa. 581; Smith v. McAdoo, 266 Pa. 328; Hanigan v. Ry., 257 Pa. 236; Kipp v. R.R., 265 Pa. 20; Lapinco v. Ry., 257 Pa. 344.

J. A. Gleason and John C. Arnold, for appellee.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE FRAZER:

Plaintiff seeks to recover damages for the death of her husband, who was killed by one of defendant's trains, which collided with an automobile deceased was driving over a grade crossing near Saybrook, Warren County, near noon on August 10, 1919. The trial resulted in a verdict for plaintiff. Motions for a new trial and judgment for defendant non obstante veredicto were dismissed and defendant appealed.

Defendant contends the presumption that decedent exercised due care for his safety as he approached the crossing was rebutted by the positive testimony of an eye-witness to the accident, to the effect that deceased did not stop before entering on the track. This witness, Mrs. Woodring, testified she was riding with a friend in an automobile driven by her son toward the crossing in question, heard the whistle of the approaching train, and that their car stopped to await the passing of the train; that the car deceased was driving was behind the car in which the witness was riding and drove past at the rate of about twenty miles an hour, did not stop, but, on the contrary, increased its speed somewhat to about twenty-five miles an hour, evidently to clear the crossing, and was struck by the train. To avoid the inference of contributory negligence naturally following this evidence, plaintiff contends that Mrs. Woodring's testimony that she was present and witnessed the accident was contradicted and the question was necessarily for the jury.

If Mrs. Woodring was at the place she says at the time the accident happened she was certainly in a position to observe and know what took place between the time she heard the warning whistle of the approaching train and the time the collision occurred. The evidence relied upon by plaintiff to impeach her credibility is not that of other eye-witnesses to the occurrence, who testified the accident happened in a different manner, or that deceased did, in fact, stop before attempting to cross the tracks. If this were the case the question clearly could not be taken from the jury. Here, the evidence merely tends to show that the witness was not present on the highway at the time and, consequently, could not have seen the accident, the inference from this being that she committed deliberate and intentional perjury in testifying as she did. The proof relied upon to establish this fact is as follows: A witness, Mrs. Linneman, who lived near the crossing testified she heard the crash, looked out of the window of her house and seeing a great deal of dust went immediately to the porch of her home where she had a full view of the crossing; that the train had then cleared the crossing (it in fact ran 1,400 feet beyond the crossing before brought to a stop) and there was no automobile in the highway; that she then went down the road to the crossing and there was neither a car nor a woman in sight; that she returned to her house for the purpose of telephoning and again went to the scene of the accident, at which time cars were beginning to accumulate rapidly. Mrs. Woodring testified that after the crash she alighted from her machine, walked forward to the crossing and down the track to view the wreck and that her son turned the car in the road and drove down opposite the wreck; that she went as far as the house of Mrs. Parish, opposite which the train had stopped. Mrs. Parish was called and, in answer to a question whether Mrs. Woodring was there, stated "No, I don't think she was." Two other witnesses testified they saw no car in the vicinity of the parish house corresponding to that in which Mrs. Woodring was riding. We deem this evidence insufficient to raise a serious question as to the credibility of Mrs. Woodring's testimony. Failure of the various witnesses to see her or her automobile may be easily accounted for by the fact that the machine was driven away by her son immediately following the crash and by the further fact that the attention of all persons would naturally be fixed on the wreck and the injured persons, rather than upon the presence or absence of an automobile or person in the highway or of particular persons at or near the scene of the accident. Does this justify a court in saying as matter of law the presumption that deceased exercised due care was rebutted? Under the circumstances our answer to that is in the negative. Presumptions are only intended to take the place of facts and cannot be relied upon where the facts are shown: Chalfant v. Edwards, 173 Pa. 246, 252; Cohen v. Phila. R.T. Co., 228 Pa. 243, 247; Williams v. Metropolitan Edison Co., 267 Pa. 158, 161. But where a presumption in favor of a party entitles him to have his case submitted to the jury, it cannot be withdrawn from them merely because the other gives evidence tending to rebut that presumption: Penna. R.R. v. Weiss, 87 Pa. 447; Spear v. P., W. & B.R.R., 119 Pa. 61, 69; Doud v. Hines, 269 Pa. 182, 185. "The presumption of a fact in law, which carries a case to a jury, necessarily leaves them in possession of the case. True, the evidence to rebut the presumption may be very strong, yet it is a matter for the jury and not for the court. The force of the evidence may or may not be sufficient to convince them that the natural presumption arising from human instinct is repelled. But before they can come to this conclusion they must consider the circumstances under which the repelling witnesses testify. They may be such as not to convince a rational mind that the deceased heedlessly rushed into danger, or the character of the witnesses and their appearance before the jury may render them unworthy of belief, consequently the jury only can determine the fact put in issue by the presumption of law": Penna. R.R. v. Weiss, supra, page 449. In determining whether the facts are so clearly established that a court can say as matter of law that the presumption is rebutted, the proper criterion is whether a verdict in favor of the party relying upon the presumption would be permitted to stand, or whether the court would be bound to set it aside as against the evidence in the case; or, to use the language of this court in Patterson v. Ry., 210 Pa. 47, quoted in Kreamer v. Perkiomen R.R., 214 Pa. 219, and Unger v. Phila., B. & W.R.R., 217 Pa. 106, "whether that presumption is rebutted is for the jury, unless the evidence to the contrary is clear, positive, credible and either uncontradicted, or so indisputable in weight and amount, as to justify the court in holding that a verdict against it must be set aside as a matter of law." In the present case, while the testimony of Mrs. Woodring was clear and positive, her credibility was attacked and this raised a question for the jury.

With respect to defendant's negligence there was evidence on part of plaintiff that defendant's train approached the crossing at the rate of sixty miles an hour. This fact alone would not warrant an inference of negligence. The crossing was in the country district where the rule has been applied that there is no limit to the rate of speed at which a railroad may run its trains so long as the bounds of safety to patrons are not transgressed: Custer v. Railroad, 206 Pa. 529, 533; Schwarz v. R.R., 218 Pa. 187, 196. The court below, in submitting the case to the jury and in its opinion subsequently filed, took the view that the crossing in question, by reason of the general contour of the land, the condition of the highway at the crossing, and the adjacent land, was of a particularly dangerous character and, consequently, a duty rested on defendant to take reasonable precautions to protect travelers having occasion to use the crossing. There is evidence that the railroad tracks were lined on each side by embankments covered with a growth of bushes from two to six feet in height, which, to some extent, obscured the view of an approaching train. There is evidence that no warning was given of the approaching train, this, however, is merely negative in character and is contradicted by positive testimony of other witnesses, both for plaintiff and defendant, that the whistle was blown and the bell rung. The contention is, however, that even though such warning was given, it was for the jury, under the special circumstances, to say whether it was sufficient because of the obstructions to the sound and the distance from the crossing at which the whistle was blown and that this situation brings the case within Newhard v. R.R., 153 Pa. 417, where it was said, page 423: "The question of speed becomes material only when neither sight nor sound can avail the traveler."

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