Pennsylvania Railroad Co. v. Weiss

Decision Date04 November 1878
Citation87 Pa. 447
PartiesPennsylvania Railroad Co. <I>versus</I> Weiss.
CourtPennsylvania Supreme Court

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

Error to the Court of Common Pleas of Erie county: Of October and November Term 1878, No. 142 J. Ross Thompson, for plaintiff in error.—It is an unbending rule that one approaching a railroad crossing must stop, look and listen for coming trains, and a neglect to do so is negligence per se: North Penna. Railroad Co. v. Heilman, 13 Wright 60; Penna. Railroad Co. v. Beale, 23 P. F. Smith 505; Railroad v. Weber, 26 Id. 157; Gerety v. Phila., Wilm. & Balt. Railroad Co., 31 P. F. Smith 274. The plaintiffs relied upon the presumption of law that the deceased did his duty in this particular, and there was nothing but this presumption to sustain their right to recover. They offered no express testimony to show that deceased did "stop, look and listen."

On part of the defendants to rebut this naked presumption, it was shown by the uncontradicted testimony of two competent and intelligent witnesses that the deceased did not stop, but drove on to the track in front of the approaching engine, and was killed.

Thus the presumption of law fails, and the just and fair conclusion that the deceased did not do his duty is established. Hence it was properly claimed that the court should have instructed the jury that under the evidence the plaintiffs were not entitled to recover.

Davenport & Griffith, for defendants in error.—The court properly left the case to the jury: Weiss v. Railroad Co., 2 W. N. C. 214.

The judgment of the Supreme Court was entered November 4th 1878, PER CURIAM.

The principle of this case was decided at this term in the case of the Pennsylvania Railroad Co. v. Miller et ux., ante 395. The presumption of a fact in law, which carries a case to a jury, necessarily leaves them in possession of the case. True the evidence to rebut the presumption may be very strong, yet it is a matter for the jury and not for the court. The force of the evidence may or may not be sufficient to convince them that the natural presumption arising from human instinct is repelled. But before they can come to this conclusion they must consider the circumstances under which the repelling witnesses testify. They may be such as not to convince a rational mind that the deceased heedlessly rushed into danger, or the character of the witnesses...

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36 cases
  • Columbus & G. Ry. Co. v. Phillips
    • United States
    • Mississippi Supreme Court
    • March 16, 1931
    ...disclosed repelled the legal presumption of negligence arising where the passenger is injured by an overturned car. Pa. Road Co. v. Weiss, 87 Pa. 447; Van Richmond, 259 Pa. 300, 102 A. 954; Cain v. Phil., 196 Pa. 502, 46 A. 893, 8 Am. Neg. Rep. 333; Shaughnessy v. Director General, 274 Pa. ......
  • Arnold v. Philadelphia & Reading R.R
    • United States
    • Pennsylvania Supreme Court
    • April 2, 1894
    ... ... v. Lyons, 29 Pa. 113; Ry. v ... Kane, 5 Cent. R. 909; R.R. v. Weber, 76 Pa ... 157; Weiss v. R.R., 79 Pa. 387; R.R. v ... Weiss, 87 Pa. 447; R.R. v. White, 88 Pa. 327; ... Hyatt v ... right was subordinate to that of the railroad company; care ... did not require the company to stop before reaching the ... crossing and look ... ...
  • Decker v. Lehigh Val. R. Co.
    • United States
    • Pennsylvania Supreme Court
    • May 27, 1897
    ...37 A. 570 181 Pa. 465 Cynthia H. Decker, Appellant, v. The Lehigh Valley Railroad Company No. 35Supreme Court of PennsylvaniaMay 27, 1897 ... Argued: ... February 26, ... v. R.R., 107 Pa. 8; Penna. R. Co. v. Weiss, 87 ... Pa. 447; Penna. R. Co. v. Miller, 87 Pa. 395; ... Gibbons v. Ry. Co., 155 Pa. 280; ... ...
  • Ritchey v. Cassone
    • United States
    • Pennsylvania Supreme Court
    • March 18, 1929
    ...293. A. G. Dewalt, of Dewalt & Heydt, for appellee, cited, as to presumption that decedent used all reasonable means to escape: P.R.R. v. Weiss, 87 Pa. 447; Miller v. R.R., 67 Pa.Super. 249; Sontum v. Ry., 226 Pa. 230; Woodruff v. R.R., 231 Pa. 640; Hugo v. R.R., 238 Pa. 594; Patterson v. R......
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