Kennelty v. Railroad

• Decision Date: 07 January 1895
• Citation: 166 Pa. 60
• Parties: Lida A. Kennelty, Appellant, <I>v.</I> Baltimore & Ohio Railroad.
• Court: Pennsylvania Supreme Court

166 Pa. 60

Lida A. Kennelty, Appellant,v.

Baltimore & Ohio Railroad.

Supreme Court of Pennsylvania.

November 8, 1894.

January 7, 1895.

Argued Nov. 8, 1894.

Appeal, No. 300, Oct. T., 1894, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., Sept. T.,

1893, No. 492, refusing to take nonsuit.

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

James S. Young, S. U. Trent with him, for appellant, cited, Lewis v. Seifert, 116 Pa. 647.

Johns McCleave, D. T. Watson with him, for appellee.—Rules which, if observed by employees, will prevent collisions, are sufficient.

The evidence ruled out would have been received if the witness had qualified himself to testify as an expert.

OPINION BY MR. JUSTICE FELL, Jan. 7, 1895:

The plaintiff's husband was employed by the defendant as a brakeman and assistant baggage master. He was killed by a collision of the train on which he was employed with another passenger train which ran into it from the rear. The accident was the result of gross negligence, and upon the trial the only question was whether the negligence was that of a co-employee in disregarding the rules for the movement of trains or of the defendant in not providing a safe schedule.

Both trains were running west on the same track towards Pittsburg. Train No. 37, on which the deceased was riding, was running on its schedule time. Train No. 5, which ran into it, reached Rockwood, one hundred miles east of Pittsburg, two hours and eleven minutes late, and the engineer there received a telegraphed order to run to Pittsburg two hours late. The schedule time of the arrival of train No. 37 at Pittsburg was 10.50 P. M., and that of train No. 5 was 8.30 P. M. Running two hours late under the special order this train would reach Pittsburg at 10.30 P. M. A literal compliance with the order would have required train No. 5 to pass train No. 37 and any other local trains which were in its way on the west bound track, and would have required additional orders to all such trains to get out of the way.

All the testimony shows that this special order was to be read in connection with the general rules of the company for the running of trains, and that it was so understood by every one connected therewith. It meant that No. 5 should run two hours late and would have a track clear of all freight trains, but that it must run with reference to the schedule of all passenger trains. It imposed upon those charged with the running of the train the duty to observe the schedule time of all passenger trains, and to run ten minutes behind the time of the train which it followed to Glenwood, and five minutes behind it from there to Pittsburg. It appeared that this was distinctly understood by the trainmen who received the order, and that the collision resulted from their...