Meitzner v. Baltimore & Ohio Railroad Co.

• Decision Date: 12 April 1909
• Docket Number: 361
• Parties: Meitzner v. Baltimore & Ohio Railroad Company, Appellant
• Court: Pennsylvania Supreme Court

73 A. 434

224 Pa. 352

Meitzner v. Baltimore & Ohio Railroad Company, Appellant

No. 361

Supreme Court of Pennsylvania

April 12, 1909

Argued February 9, 1909

Appeal, No. 361, Jan. T., 1908, by defendant, from judgment of C.P. Delaware Co., June T., 1907, No. 277, on verdict for plaintiff in case of Annie L. Meitzner v. Baltimore & Ohio Railroad Company. Affirmed.

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

The facts are stated in the opinion of the Supreme Court.

Verdict and judgment for plaintiff for $7,725. Defendant appealed.

Errors assigned were various instructions, including refusal of binding instructions for defendant.

In what we have said the several assignments of error have been considered. They are overruled and the judgment is affirmed.

Kingsley Montgomery, for appellant. -- The cases of Carroll v Penna. R.R. Co., 12 W.N.C. 348; Myers v. Baltimore &amp Ohio R.R. Co., 150 Pa. 386, and the numerous cases in their wake, are authority for the general proposition that if it is physically impossible for an accident to have happened without negligence on the part of the person injured, such person is not entitled to recover, no matter what his testimony may be.

A person who goes to the railroad station and on the platform, not for the purpose of any business, or to meet expected friends, or to see others depart, but for his own pleasure and convenience is there at his own risk or peril, and cannot recover damages for personal injuries received in consequence of a defective platform: Burbank v. Ill. Central R.R. Co., 11 L.R.A. 720; Redigan v. Boston & Maine R.R. Co., 155 Mass. 44 (28 N.E. Repr. 1133); Gillis v. Penna. R.R. Co., 59 Pa. 129; B. & O.R.R. Co. v. Schwindling, 101 Pa. 258; Heinlein v. R.R. Co., 147 Mass. 136 (16 N.E. Repr. 698); Penna. R.R. Co. v. Martin, 55 L.R.A. 361; Culp v. R.R. Co., 9 Kulp, 174.

The plaintiff's decedent was guilty of contributory negligence in not stopping, looking and listening before he went on the railroad: Kraus v. Penna. R.R. Co., 139 Pa. 272; Hovenden v. Penna. R.R. Co., 180 Pa. 244; Childs v. Penna. R.R. Co., 150 Pa. 73; Custer v. R.R. Co., 19 Pa.Super. 365.

The plaintiff was permitted to amend her statement of claim under objection and exception of the defendant, and a plea to the statute of limitations. The amendment was changing the Baltimore & Ohio Railroad Company, a corporation of the state of Pennsylvania, to a corporation of the state of Maryland. The court erred in allowing the amendment: Brittin v. Shloss, 9 W.N.C. 510.

John M. Broomall, for appellee. -- In a case against a railroad company to recover damages for personal injuries or death at a grade crossing, where there is a disagreement among the witnesses as to whether a bell was rung, the question whether the failure to ring a bell is negligence, is a question for the jury to determine from all the circumstances in the case: Crane v. Penna. R.R. Co., 218 Pa. 560; Laib v. Railroad Co., 180 Pa. 503; Child v. Railroad Co., 150 Pa. 73; Holt v. Penna. R.R. Co., 206 Pa. 356; Bailey v. Railroad Co., 220 Pa. 516.

The testimony of a witness, who being near a crossing, was expressly listening for the train warnings, and heard none is of a higher grade than mere negative testimony of other witnesses, and is sufficient to require the submission of the evidence to the jury: Longenecker v. Railroad Co., 105 Pa. 328; Quigley v. D. & H. Canal Co., 142 Pa. 388.

A mere error in the name of the defendant may be corrected when the real defendant has been served and is before the court even though the statutory period to bring the action has expired: Wright v. Eureka Tempered Copper Co., 206 Pa. 274; Wilkinson v. North East Boro., 215 Pa. 486; Holmes v. Railroad Co., 220 Pa. 189.

Before FELL, BROWN, MESTREZAT, ELKIN and STEWART, JJ.

OPINION

MR. JUSTICE STEWART:

At the place where this accident occurred the defendant company maintains two tracks, one used for east-bound, the other for west-bound trains. Louis A. Meitzner, the plaintiff's husband, approached the crossing from the north. At that moment a freight train was moving west on the track nearest him. After it had cleared the crossing he attempted to cross over, and was struck and killed by the engine of a passing express train moving east on the south track. If, without waiting for the freight train to move far enough away to admit of his seeing more of the second track than was immediately in his front, he started forward and was accidentally struck by the engine on the second track moving east, the law would unquestionably refer the accident to his own want of care. On the other hand, if he waited until the freight train had so far proceeded that it no longer obstructed his view of the second track before attempting to cross, he did all that could be reasonably required of him in that regard. Which course does the evidence on the part of plaintiff show that he pursued? If the former, the case called for a nonsuit or binding instructions for the defendant; if the latter, it was for the jury. The peculiarity of the case is that because of the conflicting statements which appear in the testimony of the witness Bishop, who alone had opportunity to see the whole occurrence from beginning to end, and upon whose testimony plaintiff...