Kemmler v. Pennsylvania Co.

• Decision Date: 21 June 1919
• Docket Number: 183
• Parties: Kemmler, Appellant, v. Pennsylvania Company
• Court: Pennsylvania Supreme Court

108 A. 592

265 Pa. 212

Kemmler, Appellant, v. Pennsylvania Company

No. 183

Supreme Court of Pennsylvania

June 21, 1919

Argued April 28, 1919

Appeal, No. 183, Jan. T., 1919, by plaintiff, from judgment of C.P. Erie Co., Nov. T., 1916, No. 136, for defendant n.o.v. in case of Elizabeth Kemmler v. Pennsylvania Company. Affirmed.

Trespass to recover damages for the death of plaintiff's husband. Before WHITTELSEY, J.

The jury returned a verdict for plaintiff for $2,900. Subsequently the court entered judgment for defendant n.o.v Plaintiff appealed.

Error assigned was in entering judgment for defendant n.o.v.

The judgment is affirmed.

M Levant Davis, for appellant.

S. Y. Rossiter, for appellee, was not heard.

Before BROWN, C.J., FRAZER, WALLING, SIMPSON and KEPHART, JJ.

OPINION

MR. JUSTICE FRAZER:

Plaintiff's husband died from injuries received at a grade crossing in the City of Erie as he was returning from work shortly after 9:30 p.m., March 29, 1916. He was seen a short distance from the crossing and was next heard calling for help, by a watchman at a factory nearby, who found him lying between the tracks of defendant company and those of the New York Central railroad which run side by side at this point. Deceased, with both legs severed from the body, was lying about then feet from defendant's tracks and twenty-five or thirty feet beyond the crossing. No one saw the accident and direct proof that he was struck by one of the defendant's trains is wanting. While it is conceded a train of defendant company passed this point about the time of the accident, the testimony shows that two trains passed over the crossing on the New York Central tracks at practically the same time. Although there are circumstances in connection with the accident indicating defendant's train, rather than one of those of the New York Central, struck plaintiff's husband, a serious question exists as to whether the evidence was sufficient to establish the liability of defendant within the rule which casts upon plaintiff th burden of showing that defendant's negligence was the sole and proximate cause of the injury to the exclusion of other causes, it being insufficient to merely show the injury may have been due to one or more causes, for only one of which defendant would be responsible: Bruggeman v. City of York, 254 Pa. 430; Erbe v. Phila. Rapid Transit Co., 256 Pa. 567. Assuming the evidence tending to show deceased was injured by defendant's train was sufficient, the action of the trial judge in entering judgment for defendant non obstante veredicto was proper for the reason the evidence clearly fails to convict defendant of negligence and on the contrary shows contributory negligence on the part of deceased.

The train in question consisted of empty passenger coaches with the engine attached to the rear car and running backwards with the tender in front on which were two lights. The bell on the engine being of the type operated automatically by air pressure was ringing continually. There is also positive testimony of...