McKahan v. Baltimore & Ohio Railroad Co.
| Decision Date | 04 January 1909 |
| Docket Number | 61 |
| Citation | 72 A. 251,223 Pa. 1 |
| Parties | McKahan v. The Baltimore & Ohio Railroad Company, Appellant |
| Court | Pennsylvania Supreme Court |
Argued October 15, 1908
Appeal, No. 61, Oct. T., 1908, by defendant, from judgment of C.P. Washington Co., Feb. T., 1907, No. 107, on verdict for plaintiff in case of Caroline McKahan v. The Baltimore & Ohio Railroad Company. Reversed.
Trespass to recover damages for death of plaintiff's husband. Before McILVAINE, P.J.
The facts are stated in the opinion of the Supreme Court.
Verdict and judgment for plaintiff for $5,000. Defendant appealed.
Errors assigned were in refusing binding instructions for defendant and in refusing to withdraw juror and continue the case.
Judgment reversed.
Norman E. Clark, with him Winfield McIlvaine, for appellant. -- A nonsuit should have been entered: Boltz v. R.R. Co., 212 Pa. 154; Corcoran v. R.R. Co., 203 Pa. 380; Urias v. R.R. Co., 152 Pa. 326; Keppleman v. Ry. Co., 190 Pa. 333; Mankewicz v. R.R. Co., 214 Pa. 386; Knox v. Ry. Co., 202 Pa. 504; Reading & Columbia R.R. Co. v. Ritchie, 102 Pa. 425; Kinter v. Penna. R.R. Co., 204 Pa. 497; Dryden v. Penna. R.R. Co., 211 Pa. 620; Coppuck v. R.R. Co., 191 Pa. 172; Lees v. R.R. Co., 154 Pa. 46.
In view of the unusual and remarkable demonstration which occurred in the trial of this case, the court should have sustained our motion to withdraw a juror and continue the same: Penna. R.R. Co.'s Case, 213 Pa. 373; Fisher v. Penna. Co., 34 Pa.Super. 500; Saxton v. Rys. Co., 219 Pa. 492.
J. M. Patterson, for appellee. -- The case was for the jury: Ellis v. Lake Shore, etc., Ry. Co., 138 Pa. 506; Phila., etc., R.R. Co. v. Ervin, 89 Pa. 71; Keiser v. Lehigh Valley R.R. Co., 212 Pa. 409; Seifred v. R.R. Co., 206 Pa. 399; Laib v. R.R. Co., 180 Pa. 503; Coolbroth v. R.R. Co., 209 Pa. 433; Confer v. R.R. Co., 209 Pa. 425; Cromley v. R.R. Co., 208 Pa. 445; Toban v. Coal Co., 24 Pa.Super. 475; Newton v. R.R. Co., 18 Pa.Super. 18; Muckinhaupt v. R.R. Co. 196 Pa. 213; Penna. R.R. Co. v. Ogier, 35 Pa. 60; Bard v. Phila. & Reading Ry. Co., 199 Pa. 94; Elston v. R.R. Co., 196 Pa. 595.
There was no error in refusing to withdraw a juror: Com. v. Jongrass, 181 Pa. 172; McClain v. Com., 110 Pa. 263.
Before MITCHELL, C.J., FELL, BROWN, POTTER, ELKIN and STEWART, JJ.
In the opinion of the court overruling the motion of the defendant for judgment non obstante veredicto this case is said to be a close one. On the question of the contributory negligence of the deceased it cannot be so regarded. From the testimony of plaintiff's witnesses but one inference is possible as to his conduct in approaching the crossing, and it was, therefore, for the court to so declare. Failure to discharge this duty resulted in a finding by the jury which is not a true one.
Charles McKahan, the husband of appellee, drove into the borough of Claysville with a double team on October 17, 1906, and, after remaining there a short time, started for his home by way of Bell avenue. Driving along this route it was necessary for him to pass over the track of the appellant company, running east and west and crossing the avenue at right angles and at grade. In attempting to cross the track his team was struck by a locomotive drawing a caboose and he and the horses were killed. The crossing is an admittedly dangerous one, and its danger was well known to the deceased, who had constantly crossed it for many years. The danger in going south over it is due to the character of the approach from the north -- the direction from which the deceased came. The locomotive was coming from the west, and the view of the track in that direction is obstructed for quite a distance north of the defendant's roadbed. At a point about 225 feet north of the crossing McKahan stopped. The railroad track could be seen there looking to the east, but not to the west, though the smokestack of an engine approaching from the west could be seen. After four sections of a train had passed from west to east the deceased started his horses, but his view of the track to the west from the point at which he stopped was cut off down to the crossing by an embankment and other obstructions until he reached the first or mill siding. Between this siding and the main track of the railroad company there was another siding, on which there were no cars. Between the north rail of the main track, laid on the south side of the railroad company's right of way, and the south rail of the mill switch or siding, on which some cars were standing, there was a clear space of 19 feet, commanding an unobstructed view of the main track for a distance of 2,000 feet to the west. From the time the deceased started from the point about 225 feet from the crossing he did not stop again, but went on at a good gait until his team was struck. F. J. Egan, the proprietor of a planing mill on the east side of Bell avenue near the crossing, was one of plaintiff's witnesses and saw the collision. He testified that he was in his office when the train whistled; that he looked out of a window and saw McKahan pass by his planing mill, about 130 feet from the main track; that McKahan was going toward the crossing when the train whistled; that witness ran out and called to him to stop, knowing that if he went ahead he would be caught; that he did not stop, but drove straight on to the track, and the engine struck one of the horses just back of the foreleg. The testimony of this witness is that the deceased "did not stop at all as he went on" by the planing mill to the main track.
The foregoing facts all appear from the testimony of plaintiff's witnesses, and the nonsuit asked for should have been granted. Instead of that disposition of the case it was submitted to the jury on the theory of the presumption that the deceased had stopped, looked and listened at a point beyond the mill siding, where he had a view to the west for a long stretch, and, in the opinion overruling the motion for judgment for the defendant, the court regarded this presumption as strengthened by the testimony of a witness that McKahan was pulling the lines as the horses reared up. This occurred just as the engine struck them, and cannot be regarded as any evidence of the exercise of care by the deceased. The horses, when driven by him to the point of death, would naturally have reared up, and he then would instinctively have tried to save himself, but it was too late for him to do what he ought to have done before he attempted to cross. The presumption that he had exercised care was...
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