MacDonald v. Pennsylvania Railroad Co.

• Decision Date: 20 March 1944
• Docket Number: 228,227
• Citation: 36 A.2d 492,348 Pa. 558
• Parties: MacDonald, Admrx., Appellant, v. Pennsylvania Railroad Co.; MacDonald, Appellant, v. Pennsylvania Railroad Co
• Court: Pennsylvania Supreme Court

36 A.2d 492

348 Pa. 558

MacDonald, Admrx., Appellant, v. Pennsylvania Railroad Co.;

MacDonald, Appellant, v. Pennsylvania Railroad Co

Nos. 227, 228

Supreme Court of Pennsylvania

March 20, 1944

Argued January 11, 1944

Appeal, Nos. 227 and 228, Jan. T., 1943, from judgments of C.P. No. 5, Phila. Co., June T., 1941, Nos. 3537 and 3352, in cases of Mary E. MacDonald, Admrx. of Estate of Donald R MacDonald v. The Pennsylvania Railroad Company and Mary E MacDonald v. Same. Judgments reversed.

Trespass for wrongful death. Before KUN, J.

Verdicts for plaintiff, individually, in sum of $2,500, and for plaintiff, as administratrix, in sum of $7,500. Motions by defendant for new trial and for judgment n.o.v.; judgments entered for defendant n.o.v. Plaintiff appealed.

The judgments of the court below are reversed; the rules for a new trial are reinstated and made absolute.

William T. Connor, with him John R. K. Scott and Hardie Scott, for appellant.

Philip Price, with him Scott Seddon and Barnes, Dechert, Price &amp Smith, for appellee.

Before MAXEY, C.J., DREW, LINN, STERN, PATTERSON, STEARNE and HUGHES, JJ.

OPINION

MR. MAXEY, CHIEF JUSTICE

This is an appeal from the action of the court below in entering judgment for defendant n.o.v. The plaintiff recovered a verdict of $2,500. for herself individually and $7,500. as administratrix of the estate of Donald R. MacDonald, a nine months old child who was killed on March 16, 1941, while a passenger on defendant's train. The latter was derailed while running along the banks of the Ohio River near Baden, Pa. The two cases were consolidated for trial.

The plaintiff made out a prima facie case by proving that the child was killed while a passenger in the defendant's wrecked railroad car. The burden of either coming forward with defensive evidence of a convincing character or suffering an adverse verdict then shifted to the defendant. The defense offered was that the wreck which caused the derailment of the train was due exclusively to sabotage. This proof of sabotage was not controverted. Seventeen witnesses who examined the track at the place of derailment at periods varying from a few minutes after the wreck to an hour or more thereafter, testified that they found lying in the middle of the track on which the train had been running a loose rail, in a position parallel to the tracks, and with its west end immediately opposite the east end of the last rail remaining in place, and that this loose rail showed unmistakable evidence, inherent in the surrounding physical conditions, of having been deliberately removed from its former position by some agency in no way connected with the defendant company. The facts which tended to show that the rail had been deliberately misplaced were "clean and even" bolt holes, clean spike holes at the point of the rail's original location, marks of scraping along the other edge of the base of the rail as it lay on its side, "the batter on the west end", indicating that it had been partially loosened before the passage of the next preceding train, and the finding in a location directly opposite to their normal position in the track of the undamaged angle bars, spikes and bolts as well as the finding, in the same location, of the claw bar and wrench with which the loose rail had obviously been removed. Five witnesses testified to circumstances which clearly indicated that the displaced rail had been removed prior to the wreck. All this uncontradicted oral testimony if credited showed that the derailment was caused by the malicious removal of a rail by unknown felons.

Appellant's contention is that "a showing of the derailment of the train on which the plaintiff and her son were riding raised a presumption of negligence" against the defendant and that the latter then had the burden of showing, "that it used due care in the operation of its train, and that it kept its roadway in proper order and repair. Whether the evidence offered by the defendant sustained its position, that it used due care, and that it properly inspected and oversaw its roadway, was a question which could be determined only as a factual one by a jury." Our decision is that while the testimony offered by the defendant was uncontradicted, the credibility of the testifiers was for the jury, and under our established procedure the entry of judgment for the defendant n.o.v. was error.

The "incontrovertible physical facts" rule, relied upon by the appellee, does not apply to this case. It is properly applied "when with the certainty of an infallible mathematical test applied to the testimony of a witness, he is found to be mistaken in a material matter, it would be a travesty upon justice to allow a jury to consider such testimony and a license to them to render a false, instead of a true finding . . .": Bornscheuer v. Traction Co., 198 Pa. 332, 334, 47 A. 872. It is customarily applied in those actions in trespass where the testimony of a plaintiff (or in his behalf) would carry the case to the jury if it was not completely discredited by some physical fact introduced into the case with mathematical certainty or open to visual inspection or both. This rule appears to be invoked successfully only in support of a challenge to plaintiff's freedom from contributory negligence. It was so invoked in the following three cases cited by the appellee: Hawk v. Pennsylvania R.R., 307 Pa. 214, 160 A. 862. In this "grade crossing" case the incontrovertible physical fact as shown by a map was that the railroad tracks south of the crossing were almost straight for 1,040 feet. Since the driver of the car could have seen the train approaching her contributory negligence was legally adjudged. In Garis v. Lehigh & New England R.R. Co., 324 Pa. 149, 188 A. 76, also we held that plaintiff's case failed because the oncoming train was visible for a sufficient distance for him to have seen it. In Lamp v. Pennsylvania R.R., 305 Pa. 520, 158 A. 269, we approved the following from Lessig v. Reading Transit & Light Co., 270 Pa. 299, 302, 113 A. 381: "As a general rule a suitor is entitled to have his case submitted to the jury on his own interested testimony although contradicted by disinterested witnesses, the remedy for a perverse verdict being a new trial; where, however, as here, the party's own testimony . . . is shown to be untrue by incontrovertible physical facts, the case is different." ^[1] See also Grimes v. Pennsylvania R.R. Co., 289 Pa. 320, 137 A. 451.

In all other types of civil cases we have adhered to the long prevailing rule that issues of fact where there is more than a scintilla of evidence on each side must be submitted to the jury. In Holland v. Kindregan, 155 Pa. 156, 25 A. 1077, which was an action for ejectment of a strip of land, this court said: "It does not follow that because the evidence on one side may be overwhelming in the opinion of the trial judge, that the case can be withdrawn from the jury. If there is a conflict of evidence it must go to the jury unless the evidence on one side amounts but to a scintilla." Justice SHARSWOOD, speaking for this court, said in Reel v. Elder, 62 Pa. 308: "However clear and indisputable may be the proof when it depends upon oral testimony, it is nevertheless the province of the jury to decide, under instructions from the court, as to the law applicable to the facts, and subject to the salutary power of the court to award a new trial if they should deem the verdict contrary to the weight of the evidence." In Nanty-Glo Boro. v. Amer. Surety Co., 309 Pa. 236, 238, 163 A. 523, we said: "This rule is firmly established" (citing cases). We said further: "The credibility of these witnesses, without whose testimony plaintiff could not have recovered, was for the jury."

The facts of the instant case bring the case within the rule thus stated in the two cases just cited and not within the rule we have laid down in grade crossing cases where the incontrovertible physical facts demonstrate plaintiff's own negligence. The "physical facts" which the railroad company relied upon in this case, such as the condition of the displaced rail and the pulled out spikes, were facts which were testified to by witnesses. Before the jury could accept the statements made by these witnesses, they had to credit them. It is true that the jury could inspect the rail and the spikes produced by the defendant, but that these were the very physical things whose displacement by human hands caused the wreck of defendant's train depended on the truthfulness of the witnesses who vouched for them. In a "grade crossing" case, the map showing the distance for which a clear view may be had has to be made and vouched for by a witness but if the map is erroneous that fact is easily demonstrable by the opposing party; he can also ask that the tribunal view the locus of the accident and "see for itself" the physical situation.

Defendant's proof in support of its allegations of sabotage was of such a convincing character that the court easily fell into the error of entering judgment for the defendant after the jury failed to return the verdict the evidence so clearly called for. The court stated that this was one of those cases where the "proofs demonstrate that the thing that happened could not possibly have occurred through any negligence on the part of the defendant . . . and it becomes the duty of the court to so declare as a matter of law." We agree that the proofs demonstrate what the court said they did, but the "demonstration" could result in a judgment for the defendant only after the demonstration had induced the jury to return a verdict for ...