Pennsylvania Railroad Co. v. Fortney

• Decision Date: 06 October 1879
• Citation: 90 Pa. 323
• Parties: Pennsylvania Railroad Co. <I>versus</I> Fortney <I>et al.</I>
• Court: Pennsylvania Supreme Court

90 Pa. 323

Pennsylvania Railroad Co. versus Fortney et al.

Supreme Court of Pennsylvania.

May 20, 1879.

October 6, 1879.

May 20th 1879.

Before SHARSWOOD, C. J., MERCUR, GORDON and TRUNKEY, JJ. PAXSON, WOODWARD and STERRETT, JJ., absent

Error to the Court of Common Pleas of Dauphin county: Of May Term 1879, No. 156.

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Hall & Jordan, for plaintiff in error.—The plaintiff's evidence showed a clear case of contributory negligence, and the court should have directed a verdict for the company.

J. M. Wiestling, for defendants in error.—It would have been error for the court not to have submitted the case to the jury, because,

1. That in doing so they would necessarily have decided that Jefferson Antrim's testimony was unworthy of credit, a question exclusively for the jury.

2. That if Antrim's testimony was to be relied upon, there could be no pretence that deceased was guilty of contributory negligence, as the presumption of law in his favor would establish the contrary, and hence the court could not have held otherwise.

3. That even with Antrim's testimony out of the case, it was the province of the jury to say, under all the circumstances, whether the man seen by Rife was in a place of danger and guilty of contributory negligence.

Mr. Justice MERCUR delivered the opinion of the court, October 6th 1879.

This case presents substantially one question only: that is, whether the court erred in submitting the evidence to the jury?

If the undoubted evidence clearly showed any fact which proved David Fortney guilty of concurring negligence, the court should have said there could be no recovery: Pennsylvania Railroad Co. v. Ogier, 11 Casey 60; Catawissa Railroad Co. v. Armstrong, 2 P. F. Smith 282; Pittsburgh & Connellsville Railroad Co. v. McClurg, 6 Id. 294; McKee v. Bidwell, 24 Id. 218. If, however, the fact relied on to establish negligence was doubtful, the case was properly submitted to the jury. What, then, is the evidence relied on to convict the court of error?

It is shown that four tracks of the railroad of the plaintiff in error cross Wood street, in the borough of Middletown, the two central ones being main tracks, and the two outside, only sidings. Fortney lived south of the railroad, and was employed in a furniture manufactory, situate north of the railroad. Just before daylight he started from his house and walked along Wood street towards the place of his employment. At this crossing he was struck and killed by the express train, passing easterly on the main south track. No witness saw it strike him, but his body was soon afterwards found, lying between this main track and the siding, about two hundred yards east of the crossing. It had evidently been carried there by the moving train.

The counsel for the plaintiff in error claims that the concurring negligence of Fortney is clearly established by the evidence of Harry Rife, a witness on the part of the defendants in error. An examination of his evidence shows he testified substantially that on the morning of the accident he stood near this crossing, and on the north side of the tracks, and by the headlight of the locomotive of the approaching westerly bound freight train he saw a man standing still, between the south main track and the siding, at this crossing; he did not recognise the man, and was unable to describe his clothes; he first saw the man when the locomotive was about thirty-five yards east; that he noticed everything particularly, and thought the man was in a dangerous place and would be killed; that the man continued standing there until the headlight intervened between him and the witness.

In reply to the question, how long he saw him standing...