Laib v. Pennsylvania Railroad Co.

• Decision Date: 12 April 1897
• Docket Number: 301
• Parties: Barbara M. Laib v. The Pennsylvania Railroad Company, Appellant
• Court: Pennsylvania Supreme Court

37 A. 96

180 Pa. 503

Barbara M. Laib v. The Pennsylvania Railroad Company, Appellant

No. 301

Supreme Court of Pennsylvania

April 12, 1897

Argued January 8, 1897

Appeal, No. 301, Jan. T., 1896, by defendant, from judgment of C.P. No. 3, Phila. Co., Sept. Term. 1894, No. 469, on verdict for plaintiff. Affirmed.

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

At the trial it appeared that on September 10, 1894, Louis Laib, the plaintiff's husband, was killed while driving in a closed wagon over the grade crossing of defendant's railroad at Holmesburg junction in the city of Philadelphia.

The circumstances of the accident are stated in the opinion of the Supreme Court.

Defendant's points and answers thereto were as follows:

1. The law presumes that the defendant's engineer and fireman did their duty and gave a signal of the approach of the train to the crossing in question, and this presumption is corroborated by the positive testimony of the engineer, the absence of affirmative testimony from the fireman being sufficiently accounted for by the proof of his death. Answer Gentlemen of the jury, there are three clauses in that proposition, and some of them I affirm and some of them I don't. I shall have to separate them. It is true gentlemen of the jury, that the absence of the fireman is adequately accounted for by his death, because it is said that he is dead and not denied, and therefore the fact that he was not called is accounted for by the proof of his death. It is true that there is a general presumption that the managers of this train, the engineer and fireman, did their duty. There is a general presumption, as there is a general presumption as to all persons doing their duty where a duty is devolved upon them by law, but that question afterward recurs when testimony is introduced upon a subject, either pro or con, whether that presumption of law is corroborated by the testimony or is refuted by it. The question of whether the testimony of the engineer corroborates the presumption of law as it is here put is for you. It corroborates if the testimony is believed. It does not corroborate it if you disbelieve it, either because it is unworthy of belief itself or because you believe there is other testimony which discredits it. It is for you to say whether the testimony of the engineman corroborates the presumption of law. [1]

2. The presumption of law and confirmation of the same by testimony, mentioned in the first point above, is not sufficiently contradicted by negative testimony that the bell was not heard, and the jury should not permit such negative testimony to outweigh the presumption of law and affirmative testimony stated above. Answer: The weight of the testimony of negation in this case I leave entirely for you. I have said to you already that ordinarily affirmative testimony as to a proposition is much better than merely negative testimony. "I heard the bell rung, and therefore it was rung," is direct. "I didn't hear it" may not prove that the bell was not rung, and may prove no more than that the witness did not hear it; but whether the testimony in this case is sufficient to discredit the positive testimony is for you, because it involves the credibility of the witnesses. [2]

3. It is shown by affirmative testimony of the flagman and other witnesses that the defendant's flagman was at the crossing at the time of the accident and gave the decedent (Laib) timely warning of the approach of the train. There is no sufficient contradiction of this affirmative testimony which would justify the court in sustaining a verdict against the defendant, and upon this ground the ground the verdict should be for the defendant. Answer: I refuse to affirm that proposition as it is stated. I refuse to say that there is not sufficient testimony to contradict the testimony of the flagman. If you believe the testimony of the flagman, that there was timely warning, of course there can be no recovery for the plaintiff. Whether you so believe the testimony of the flagman is for you entirely. [3]

4. Under all the evidence the verdict must be for the defendant. Answer: I refuse that point. [4]

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

Errors assigned were (1-4) above instructions, quoting them.

Judgment affirmed.

Geo. Tucker Bispham, for appellant, -- The defendant was entitled to binding instructions in its favor: Kelly v. Penna. R. Co., 19 W.N.C. 400; Holden v. Penna. R. Co., 169 Pa. 1; Carroll v. Penna. R. Co., 12 W.N.C. 348; Penna. R. Co., v. Mooney, 126 Pa. 244; Blight v. R.R., 143 Pa. 10; Myers v. B. & O.R.R., 150 Pa. 386; Gangawer v. P. & R.R.R., 168 Pa. 265; Lees v. P. & R.R.R., 154 Pa. 46; Seamans v. D., L. & W.R.R., 174 Pa. 421; Sullivan v. N.Y., L.E. & W.R.R., 174 Pa. 361; Penna. R. Co. v. Beale, 73 Pa. 504; Beyon v. P.R.R., 168 Pa. 642.

This legal presumption of innocence is to be regarded by the jury in every case as matter of evidence to the benefit of which the party is entitled: Greenleaf on Evidence, sec. 34.

Negative testimony, alone should not be allowed to outweigh positive affirmative testimony, and a presumption of law to the same effect as such affirmative testimony.

P. F. Rothermel, Jr., for appellee. -- The case was for the jury: McNeal v. Ry., 131 Pa. 184; Ely v. Ry., 158 Pa. 236; Davidson v. L.S. & M.S. Ry., 171 Pa. 522; Philpott v. Penna. R. Co., 175 Pa. 570.

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

OPINION

MR. JUSTICE McCOLLUM:

We cannot assent to the claim that in this case the court should have directed a verdict for the defendant. The cases cited and relied on to support it were determined upon the evidence in them. They were cases in which a compulsory nonsuit was entered, or a verdict directed for the defendant on the ground that the plaintiff's evidence disclosed contributory negligence. The negligence which precluded a recovery was the failure of the person injured or killed to stop, look and listen before attempting to cross the railroad. The fact that he was struck by the train the moment he stepped or drove upon the track was deemed conclusive against the presumption or claim that he complied with the settled rule which required him to do so. But the principle on which they were decided does not bar a recovery in every case in which a person is injured or killed while crossing a railroad. It must be clear and undisputed that he did not comply with the rule, or that if he did so he must have seen or heard the approaching train. If the evidence raises a doubt on these points it must be submitted to the jury. In McNeal v. Railway Co., 131 Pa. 184, it was held that while Carroll v. Railroad Co., 12 W.N. 348, and the decisions which followed it are sound in principle, the rule enforced by them is applicable only in a clear case. Ellis v. Lake Shore, etc., Railroad Co., 138 Pa 506, Whitman v. Penna. Railroad, 156 Pa. 175, Smith v. The Balt. & Ohio Railroad, 158 Pa. 82, and Link v. P. & R. Railroad, 165 Pa. 75, are to the same effect. Our Brother WILLIAMS, referring to these cases in his opinion in Davidson v. Railway Co., 171 Pa. 522, said: "In all these cases the parties injured drove directly in front of a moving train and were injured. If that single circumstance was enough to dispose of the question regardless of the surrounding circumstances, the plaintiff in each of these cases would have been denied access to the jury. But it is not enough. There must be no doubt or uncertainty about the facts attending the...