Kish v. Pennsylvania Railroad Co.
| Decision Date | 28 November 1932 |
| Docket Number | 233 |
| Citation | 164 A. 341,309 Pa. 439 |
| Parties | Kish v. Pennsylvania Railroad Co., Appellant |
| Court | Pennsylvania Supreme Court |
Argued October 10, 1932
Appeal, No. 233, March T., 1932, by defendant, from judgment of C.P. Allegheny Co., Oct. T., 1928, No. 1739, on verdict for plaintiff, in case of Theresa Kish v. Pennsylvania Railroad Co. Affirmed.
Trespass for death of plaintiff's husband. Before SNEE, J.
The opinion of the Supreme Court states the facts.
Verdict for plaintiff for $15,500. Defendant appealed.
Error assigned was refusal of judgment n.o.v., quoting record.
The judgment is affirmed.
Robert D. Dalzell, with him Dalzell, Dalzell, McFall & Pringle, for appellant. -- Under the undisputed facts in this case plaintiff could not have met his death in the way described and the jury cannot be permitted to guess as to how it might have occurred: Snyder v. R.R., 239 Pa. 127; Lessig v. Light Co., 270 Pa. 299.
The presumption that the decedent used due care has no application because the evidence affirmatively shows the circumstances to the contrary: Lessig v. Light Co., 270 Pa. 299; Folger v. Rys. Co., 291 Pa. 205; Rhodes v. R.R., 298 Pa. 101.
C. J Tannehill, with him Marshall, Braun & Notari, for appellee. -- It is only in clear cases where the facts are proved by incontrovertible evidence that the rule of incontrovertible physical facts and mathematical tests applies: Scalet v. Telephone Co., 291 Pa. 451.
Since the jury returned a verdict in favor of plaintiff, the evidence must be looked at in the light most favorable to her: Miller v. Tiedemann, 249 Pa. 234; Mountain v. Glass Co., 263 Pa. 181; Thomas v. R.R. Co., 275 Pa. 579; Statler v. R.R. Co., 299 Pa. 321.
The court cannot enter judgment against the verdict of the jury where there is a conflict of evidence on a material fact: Dalmas v. Kemble, 215 Pa. 410; Hugo v. R.R., 238 Pa. 594; Zimmerman v. R.R., 302 Pa. 406; Saxman v. McCormick, 278 Pa. 268; Mills v. R.R., 284 Pa. 605; Ely v. Ry., 158 Pa. 233.
Evidence tending to show that a cut in a train near a permissive crossing was closed without warning is evidence from which a jury is warranted in finding negligence on part of defendant: Dalyanakis v. Ry., 72 Pa.Super. 276.
Before FRAZER, C.J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.
This is an appeal from the refusal of the court below to enter judgment for the defendant non obstante veredicto. Plaintiff recovered a verdict in the sum of $15,500 in an action arising out of the killing of her husband, aged 28 years, by a freight train at 11:20 p.m., April 14, 1928, at Duquesne. At the station in that city defendant has five parallel tracks running north and south. Across these tracks is a plank walk nine or ten feet in width which the evidence shows was used by the public. On the night of the accident, defendant, according to plaintiff's testimony, stopped a thirty-seven car freight train in the middle track, blocking the crossing. Witnesses testified that a cut was made in this train so that pedestrians might use the crossing. This cut was made three or four cars forward from the rear of the southbound train.
An alleged eyewitness to the fatality testified substantially as follows: That he was standing near the old Duquesne Station opposite the new station, that he saw two or three men on the opposite side, that he saw a man start toward the witness's side of the tracks, and that He said there was no warning given before the train struck him. He also said that after the gap was closed the train pulled up about 50 or 60 feet and then stopped again. The crossing was then clear. The witness saw Kish lying between the rails. He also said that Kish was dragged by the train three or four feet when the train backed up and a few seconds later the train started forward.
The flagman who had been called in by the signal from the locomotive saw from the caboose after the train had run a few car lengths the body of a man on the track. He claimed that he pulled the emergency airbrake valve from the caboose, thereby applying the airbrakes and stopping the train. After the train stopped the flagman found the decapitated body of plaintiff's husband lying near the track. On the front wheel of the rear truck of the third car from the caboose there were marks of blood which indicated that this was the wheel that had run over Kish. The railroad company's witnesses, while admitting that the train was stopped near the Duquesne Station, denied that it had been cut. They testified that the train stood completely intact for about fifteen minutes at that point, and, when the engineer received a signal to proceed, he called in the flagman and the train started south. After it proceeded four or five car lengths, "the air went on into emergency and that brought the train to a full stop." Appellant contends that the fact that the flagman stopped the train by applying while in the caboose the emergency airbrake, proves conclusively that the train could not have been cut as opposing witnesses testified, for there was no evidence of the airbrake line being coupled after the alleged cutting of the train, and disconnected ends of airbrake hose cannot be coupled automatically.
Appellee called numerous witnesses to testify that there was a cut made in the train at the crossing where the deceased was killed. Two witnesses testified that they actually walked through the gap made in the train at this point. One witness testified that she had to cross the track in order to get from the dance hall to a bus which she wished to enter, that the freight train was split near the center of the boardwalk, and that she, carrying a two and a half year old child, went through there. She said she was familiar with this crossing as she had traversed it many times on her way to work. About fifteen minutes after she had entered the bus, she was informed that "a man had been killed down there." The witness claimed to have recalled the night in question because when her husband returned home by the same route a little later, he said that he had seen the man who had been killed at the station.
Another witness gave similar testimony about crossing the center walk at the station while the freight train was cut at that point. He claimed to have remembered the night in question because of his learning about an hour or two later of the death of Kish at that point.
Another witness testified that he saw the front end of the train back up and close the gap and then proceed forward, and that there was no warning given. A little later he saw the body of a man lying near the tracks.
Other witnesses gave evidence of the closing of the gap without previous warning and the moving forward of the train. The train was equipped with automatic couplers which...
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