Pennsylvania Railroad Co. v. Weiss
Decision Date | 04 November 1878 |
Citation | 87 Pa. 447 |
Parties | Pennsylvania Railroad Co. <I>versus</I> Weiss. |
Court | Pennsylvania 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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