Knox v. Philadelphia & Reading Ry. Co.

• Decision Date: 19 May 1902
• Docket Number: 253
• Citation: 52 A. 90,202 Pa. 504
• Parties: Knox, Appellant, v. Philadelphia & Reading Railway Company
• Court: Pennsylvania Supreme Court

52 A. 90

202 Pa. 504

Knox, Appellant, v. Philadelphia & Reading Railway Company

No. 253

Supreme Court of Pennsylvania

May 19, 1902

Argued February 3, 1902

Appeal, No. 253, Jan. T., 1901, by plaintiff, from judgment of C.P. Montgomery Co., Oct. T., 1900, No. 179, on verdict for defendant in case of Fayetta Knox v. Philadelphia &amp Reading Railroad Company. Affirmed.

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

At the trial the court gave binding instructions for defendant.

Verdict and judgment for defendant. Plaintiff appealed.

WEAND J., subsequently filed the following opinion:

On the conclusion of the testimony in this case, we directed a verdict for defendant for the reason that no negligence on its part had been shown.

As no motion for a new trial was made, the court had no opportunity to review the case and spread its reasons upon record. As the lower courts are called upon to decide points of law in the hurry of trial without time for examination of authorities, it would seem but fair, for counsel, before appealing a case, to allow the court an opportunity for review. As this was denied us in this case, we exercise our right at this time to place our opinion upon record confirming our ruling at the trial.

The deceased was killed at a country railroad crossing. He approached the crossing during a rainstorm, seated in a carriage and driving one horse. He was struck almost as soon as he entered on the tracks. The accident was witnessed by but one person other than the engineer.

As the defendant company was in the exercise of its rights in running the train, the plaintiff was obliged to show, (1) a case clear of contributory negligence on part of the deceased, and (2) negligence on the part of the defendant. Upon an accident at a railroad crossing, if there be no evidence of negligence, the jury should not be permitted to infer it on the part of the railroad company: Sullivan v. Penna. Co., 7 A. Repr. 177.

It was claimed and endeavored to be shown that the defendant was negligent in two particulars, viz: (1) in running at an unusual and dangerous rate of speed; (2) in not giving the customary or proper signals on approaching the crossing.

It must be conceded, that unless the plaintiff's testimony established by competent proof, either of these propositions, the direction of the court was proper.

Remembering that the scene of the accident was the crossing of a country road, what is the law as to the rate of speed on the part of a steam railroad? The point was so clearly stated by Mr. Justice DEAN in Newhard v. Penna. R.R. Co., 153 Pa. 417, as to require no elaboration on our part. There is no rule of law which defines the rate of speed allowed a passenger train, although, of course, there must in certain cases be limitations, but in this case it was the ordinary running of a passenger train at a rate which, if it amounted to that claimed by plaintiff, could not be claimed as unusual. There was not a single fact or circumstance, except the rain, which could by any process of reasoning require the engineer to lessen his speed, and depart from his running schedule.

In Childs v. Penna. R.R. Co., 150 Pa. 73, it was held the right of a railroad company to move its trains at such rate as the necessities of its business, or the requirements of the public may make necessary, is subject only to such restrictions as may be found necessary in cities and populous towns. The movement of trains must be regulated by the railroad companies in the exercise of a business discretion, and upon consideration of the competition they have to encounter and the necessities of modern business. We do not think a jury may fix the maximum rate of speed at which a train shall be moved in the open country, or that a high rate of speed is negligence per se.

If the question of speed was not for the jury, then the rate if not excessively unusual, had no bearing on the case, if defendant in other respects did their duty. But there was no competent proof of excessive or improper speed. The only witness for plaintiff who testifies to speed was a passenger, Mr. Daniel Steinmetz, who testifies page (5): "After the train left Quakertown, that day and on down to Krupp's crossing, it was going very rapidly. I could not tell how many miles an hour because I have no means of measuring that, but I was cognizant of the fact that the train was moving very rapidly from the rapidity with which we were passing objects and the jerking of the train. The train was running very rapidly." And page 16: "Between those times, the train was running at the rate of sixty miles an hour. It was raining very hard; it was one of those sudden storms that we have sometimes, that come up very suddenly, and it was raining bucketfuls, a very severe storm."

The witness did not show anything which would qualify him to judge of the rate of speed, and he was contradicted by the positive evidence of the engineer. To allow a jury to decide this question upon the evidence before them, would lead to the usual result of a verdict against the defendant. To say that a passenger whose training or experience has not qualified him to judge of speed run on a rainy day, as described for the reasons given by this witness, can judge and testify with any degree of accuracy that a train is running at forty-five or sixty miles an hour is absurd, and when opposed to the schedule of the train and the positive evidence of the engineer, ought to have no weight with court or jury.

It is not unusual for passenger trains to run rapidly, nor for the train to have a jerky motion when running at moderate speed; nor is sixty miles an hour considered unusual on first-class roads.

It was contended that because of the rain, the speed should have been reduced. Whether this would have added to the safety of other travelers, or whether it would be good railroading, we are unable to decide, but if increased care was required of the railroad company, it was equally so on the part of the traveler.

The evidence of the witness amounted to no more than a scintilla and was insufficient to rebut the presumption that the engineer did his duty, or to rebut his positive testimony as to speed.

"A mere guess or conjecture respecting the rate of speed was not sufficient to establish it:" Smith v. Holmesburg, etc., Electric Railway Co., 187 Pa. 451.

The only witness to show that no whistle was blown or bell was...