Miller v. Penna. R.R.

• Decision Date: 06 January 1930
• Docket Number: 341
• Citation: 149 A. 85,299 Pa. 63
• Parties: Miller v. Penna. R.R., Appellant
• Court: Pennsylvania Supreme Court

149 A. 85

299 Pa. 63

Miller v. Penna. R.R., Appellant

No. 341

Supreme Court of Pennsylvania

January 6, 1930

Argued December 5, 1929

Appeal, No. 341, Jan. T., 1929, by defendant, from judgment of C.P. No. 2, Phila. Co., June T., 1928, No. 8936, on verdict for plaintiff, in case of Bessie Mabel Miller v Pennsylvania Railroad Company. Reversed.

Trespass for personal injuries. Before BARNETT, P.J., specially presiding.

Verdict and judgment for plaintiff for $15,701.50. Defendant appealed.

Error assigned, inter alia, was refusal of judgment for defendant n.o.v., quoting record.

The judgment is reversed and here entered for defendant.

Philip Price, of Barnes, Biddle & Myers, for appellant. -- Plaintiff was herself negligent: Patton v. George, 284 Pa 342; Woomer v. R.R., 80 Pa.Super. 261, 265; Griffiths v. Tr. Co., 292 Pa. 489, 493; Mack v. R.R., 92 Pa.Super. 455; Joseph v. Ry., 294 Pa. 315; Lunzer v. R.R., 296 Pa. 393; Radziemenski v. R.R., 283 Pa. 182; Craig v. R.R., 243 Pa. 455; Luken v. R.R., 267 Pa. 315; Barnes v. Ry., 86 Pa.Super. 332; Carroll v. R.R., 12 W.N.C. 348; Mensch v. Director General, 274 Pa. 356; Grimes v. R.R., 289 Pa. 320, 326; Morningstar v. R.R., 290 Pa. 14, 18, 20; Tull v. R.R., 292 Pa. 458, 461-2; Haskins v. R.R., 293 Pa. 537, 543; Szmigel v. Director General, 76 Pa.Super. 230; Kinter v. R.R., 204 Pa. 497; Kipp v. R.R., 265 Pa. 20; Baltimore & Ohio R.R. v. Goodman, 275 U.S. 66.

There was not sufficient evidence to submit to the jury: Rapp v. R.R., 269 Pa. 266; Zotter v. R.R., 280 Pa. 14; Craft v. Hines, 272 Pa. 499; Grimes v. R.R., 289 Pa. 320.

George Demming, for appellee. -- Plaintiff did all that the law compels her to do, and observed proper precautions before going on the track and committing herself to the crossing: Leftage v. R.R., 250 Pa. 452; Howard v. R.R., 219 Pa. 358; Carroll v. R.R., 12 W.N.C. 348; Mills v. R.R., 284 Pa. 605; Rice v. R.R., 271 Pa. 180; Siever v. R.R., 252 Pa. 1; Burkett v. R.R., 74 Pa.Super. 404; Hanna v. Ry., 213 Pa. 157; Messinger v. R.R., 215 Pa. 497; Calhoun v. R.R., 223 Pa. 298, 300; Jester v. R.R., 267 Pa. 10, 14; Thomas v. R.R., 275 Pa. 579; Olive v. R.R., 275 Pa. 173.

By reason of the undoubted facts left out of consideration in the testimony of the witness the case is not brought within the rule of "the certainty of an infallible mathematical test," but all the facts and inferences therefrom in the case are necessarily for the jury: Heh v. Gas Co., 201 Pa. 443, 447; Hartig v. Ice Co., 290 Pa. 21, 31, 32, 33; Folger v. Rys., 291 Pa. 205, 210; Downey v. R.R., 219 Pa. 32; Corbin v. Refractories Co., 277 Pa. 126; Pfeffer v. Johnstown, 287 Pa. 370.

There was sufficient evidence of defendant's negligence for submission to the jury: Seifred v. R.R., 206 Pa. 399; Gerg v. R.R., 254 Pa. 316; Babbitt v. Jackson, 279 Pa. 480; Razzis v. Ry., 281 Pa. 96, 98; Mellon v. R.R., 282 Pa. 39, 42; Neuman v. Reading Co., 283 Pa. 416, 418.

Before FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE SADLER:

The plaintiff, accompanied by two nephews, drove her car toward Pottstown shortly after noon on a clear day. She approached from the south by a public road, which ran in the rear of Kenilworth Station and intersected Keim Street, which crossed to the east at grade the tracks of the defendant company. The main line, used for through travel, was on the western side, and two sidings, one for passing and the other for industrial purposes, paralleled it beyond. The highway approach was stated by plaintiff's witnesses to be rough, and the ascent to be on a 15% grade, though the actual measurements with appropriate surveying instruments showed the first half of the rise to be 4.3% and the second portion but 2%. To the south, at a distance of 97 feet, was the station building, located 12 feet west of the track, with an overhanging roof of 2 feet. One seated in an automobile 5 or 6 feet above the level of the road, as testified, could clearly see to the south beneath this projection when the east line of the station building was reached. Between it and the road there was no object interfering with vision except a telegraph pole, part of a line which extended south of the station, but 16 feet west of the first track. Back of the latter, to the west, and farther from the rails, were some trees and shrubbery. After passing the front line of the station, 12 feet from the first rail, the view, along the rails upon which the train came, was 4,150 feet, as shown by accurate survey. Witnesses for plaintiff estimated that sight could be had for only 125 feet when 16 feet from the track, and for 300 feet when 10 feet away, but it is clear from the photographs and actual measurements that, at the latter point, there was a clear sight beyond the station for three-fourths of a mile.

Near the intersection of the public road and Keim Street were flashlights, indicating the movement of trains on the west track, though not upon the sidings. Testimony was offered to show that at various times these did not work when trains approached, and complaints of this condition had been made. This was explained by showing that the failure to flash occurred only when train movements were taking place on other than the main track. Evidence was offered to establish proper inspection of the lights in question on the morning of the accident, and soon thereafter, and, at both times, they were found to be in proper working order. One witness for plaintiff stated the light did not flash on the day of the injury, but the block records of the railroad showed that, at the hour fixed, the movement was on an adjoining siding and not on the main track for which the light was designed, and with which it was alone connected. Railroads may provide lights or gates for the protection of those crossing, but their presence does not excuse one passing who fails to exercise due precaution for his own safety: Zotter v. L.V.R.R. Co., 280 Pa. 14; O'Neill v. Reading Company, 296 Pa. 319. The temporary failure of such device to operate will not convict the defendant of negligence, unless it had notice, actual or constructive, of the defect.

In the present case, the plaintiff was not misled by the absence of a light, if in fact the same did not flash. According to her statement, she had already passed the pole where it was placed before her car was stopped to make observations. This was at a point 16 feet from the first track, the usual place, if her witnesses are to be believed, and therefore a proper one: Olive v. Director General, 275 Pa. 173. But her obligation did not cease with this act. There remained the duty to continue to look and listen: Mensch v. Director General, 274 Pa. 356; Provost v. Director General, 265 Pa. 589. At the point first mentioned, she stated her ability to see for 125 feet, and at 10 feet from the track, where the next observation was made, 300 feet, but saw no train on either occasion. In so declaring, she must be in error, for both photographs and actual measurements disclose that an unobstructed view to the south for 4,150 feet could have been had when she had reached the east line of the station, the second place where she looked. "While it is not the province of this court to decide disputed questions of fact, and we are bound to give the plaintiff the benefit of all favorable inferences which may be drawn from the testimony of her witnesses, yet we are not required to believe what physical facts demon strate to be untrue": Radziemenski v. B. & O.R.R. Co., 283 Pa. 182; Lunzer v. P. & L.E.R.R. Co., 296 Pa. 393; Joseph v. P. & W.Va. R.R. Co., 294 Pa. 315. She continued forward until the wheels of her automebile reached the second rail of the westbound track, when the train was first observed 50 feet away. The car was struck before the crossing was completed, and thrown back to the west side of the right-of-way.

Her claim to recover was based on the negligence of defendant in failing to give proper warning of the approach of the train. First, because of the failure of the crossing light to flash a factor upon which she did not depend, as already noticed, and, second, for the reason that no whistle was blown or bell sounded. The burden was on plaintiff to prove the negligence causing the injury. A careful examination of all the evidence as to lack of signals, both that presented in the printed brief, and such as appears in the typewritten record, omitted from the former after notice, as provided by our rules of court, discloses all of it to be negative in character. Several witnesses testified they heard no whistle or bell, but none stated they were listening and would have known had the signal been given. As against this is the positive evidence of several witnesses for the defendant, who...