Pennsylvania Railroad Co. v. Weber

• Decision Date: 01 February 1875
• Citation: 76 Pa. 157
• Parties: Pennsylvania Railroad Co. <I>versus</I> Weber.
• Court: Pennsylvania Supreme Court

76 Pa. 157

Pennsylvania Railroad Co. versus Weber.

Supreme Court of Pennsylvania.

May 15, 1874.

February 1, 1875.

May 15th 1874.

Before AGNEW, C. J., SHARSWOOD, WILLIAMS, MERCUR and GORDON, JJ.

Error to the Court of Common Pleas of Perry county: Of May Term 1874, No. 47.

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L. W. Hall (with whom was C. I. T. McIntire), for plaintiffs in error.—The judge having conceded that the facts were not contradicted should have charged that Weber was guilty of negligence. Whether the accident would have been avoided if Weber had stopped, looked and listened, his failure so to do was the non-performance of a positive duty, precluding the right to recover. The judge so instructed the jury, but destroyed the value of his instruction by the qualification that the evidence must not only satisfy them that he did not stop, look and listen, but that if he had done so the accident would have been avoided; thus leaving the fact of negligence to the jury on an immaterial point: Penna. Railroad v. Beale, 23 P. F. Smith 504. Charging that if Weber was negligent and there was no negligence on the part of the company, would allow the jury to find for plaintiff if the company was negligent without regard to his conduct.

C. A. Barnett (with whom was C. H. Smily), for defendants in error.—The law presumes that Weber did all that was required of him: Lehigh Valley Railroad v. Hall, 11 P. F. Smith 361; Penna. Canal Co. v. Bentley, 16 Id. 30; Allen v. Willard, 7 Id. 374; Cleveland & P. R. R. v. Rowan, 16 Id. 393.

Mr. Justice WILLIAMS delivered the opinion of the court, February 1st 1875.

This case was here on a former writ of error, and was reversed for the admission of irrelevant and improper evidence: 22 P. F. Smith 27. It now comes before us, after a second trial in the court below, for the correction of alleged errors in refusing to charge as requested, and in the instruction given to the jury. The action was brought by the widow and children of George H Weber, who was killed at a public crossing of the defendant's road, by a passing train, to recover damages for his death. It was unquestionably the decedent's duty, as the court below in effect charged the jury, to stop and look and listen for approaching trains, before attempting to cross the track of defendant's road; and if he failed to observe this precaution, his failure was not merely evidence of negligence, it was negligence in itself. But it does not follow that he omitted his duty in this respect, because he was killed by a passing train. Nor was it incumbent on the plaintiffs, in order to recover damages for his death, to show affirmatively that, before attempting to cross the track, he did stop and look and listen. The common-law presumption is, that every one does his duty until the contrary is proved; and, in the absence of all evidence on the subject, the presumption is, that the decedent observed the precautions which the law prescribes, before he attempted to cross the defendants' road. It is true, that when the plaintiff's own evidence discloses contributory negligence, there can be no recovery; but if it does not, the burden is on the defendants to disprove care; and in such case the question of negligence is for the jury. Does, then, the plaintiffs' evidence show that the decedent was guilty of contributory negligence in not stopping to look and listen for the train by which he was killed? If so, the court should have given a binding direction to the jury to find for the defendants. But, in the absence of such evidence, it would have been error for the court to withdraw the case from the jury, and determine, as matter of law, that he was guilty of negligence, which contributed to his death. Whether, then, the court should have affirmed the defendants' second point without qualification, depends upon the character of the evidence of which it was predicated. If, as suggested in the point, the uncontradicted evidence in the case shows that the decedent did not stop before driving on the track, then he omitted a plain and positive duty, and the court should have declared its omission negligence, as a matter of law. But if there was no direct and positive evidence, showing that he did not stop before driving on the track, then the learned judge was clearly right in refusing to withdraw the case from the jury, and in saying, as he did, "We cannot affirm this point, but say again, that the first presumption of law is, that he did stop, look and listen. But this presumption will give way to the actual truth, that he did not do so. And we say again, that if the evidence satisfies you that had Weber stopped, looked and listened, he would not have been injured, then he was guilty of negligence, and you should find for the defendants, even should you find that the engineer gave no warning of the approach of the train." It is apparent, from the answer and from the whole tenor of the charge, that if the court erred in not giving the instruction prayed for, the error arose from a mistaken view of the evidence, and not from misapprehension of the law. Does the uncontradicted evidence in the case show that the decedent did not stop before driving on the track? We have looked through the record and have not been able to discover any direct and positive evidence that such was the fact. The decedent was returning in a baker's wagon from Marysville, where he had been to supply his customers with bread, and was seen by the plaintiffs' witnesses, who were at work on the railroad, about twelve hundred feet east of the crossing where he was killed. He stopped and sold them some cakes, and then drove on. One of the witnesses, Alfred Ensminger, in answer to the question, "What was the next thing that attracted your attention after the baker started on his way westward?" said: "Well, after a young man had bought the cakes from him, Alfred Priesler, we started right away to work again: I was working with my face eastward, stooping down, tamping a tie, and I heard a sharp whistle; I turned around and looked up the road, and I saw the engine strike the wagon and horse." The other witness, P. Deitz, said: "I...