Phila. & Reading Railroad Co. v. Schertle

• Citation: 97 Pa. 450
• Parties: Philadelphia and Reading R. R. Co. <I>versus</I> Schertle.
• Decision Date: 02 May 1881
• Court: United States State Supreme Court of Pennsylvania

97 Pa. 450

Philadelphia and Reading R. R. Co. versus Schertle.

Supreme Court of Pennsylvania.

March 18, 1881.

May 2, 1881.

March 18th 1881.

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

Error to the Court of Common Pleas of Schuylkill county: Of January Term 1880, No. 115.

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James Ellis and James E. Gowen, for the plaintiff in error.— While an employé is injured while in the discharge of his duty, he must prove that the employer, by his acts or omissions, has violated some duty imposed on him which has caused the injury complained of. The presumptions are against the servant: Parrott v. Wells, 15 Wall. 524; Weger v. Pennsylvania Railroad Co., 5 P. F. Smith 460. Where the evidence does not establish the breach of any duty by the defendant, the court should direct a verdict for the defendant: Weger v. Pennsylvania Railroad Co., supra; Howard Express Co. v. Wile, 14 Id. 201; Ryan v. Cumberland Valley Coal Co., 11 Harris 384; Lehigh Valley Coal Co., v. Jones, 5 Norris 432; Mansfield Coal & Coke Co. v. Mary McEnery et al., 10 Norris 185; Pennsylvania Railroad Co. v. Fries, 6 Norris 234; Boldt v. New York Central Railroad Co., 18 N. Y. 432; Dynen v. Leach, 26 Law Jour. Exch. 221; Waller v. Southeastern Railway Co., 32 Id. 205.

Farquhar and Hughes, for the defendant in error.—Direct evidence of negligence is not essential where circumstantial evidence is equally convincing. It was competent for the jury to find, from the circumstantial evidence in this case, that Schertle's death was the result of the tank having a step on only one side, and improperly placed, or of the road-bed being in a bad condition, or both, and that such defects constituted the negligence of the company.

Mr. Justice PAXSON delivered the opinion of the court, May 2d 1881.

This was an action brought by the widow and minor children of George Schertle, deceased, to recover damages for injuries resulting in his death. The declaration alleges that said injuries were occasioned by the negligence of the Philadelphia & Reading Railroad Company, defendants below. The jury having found the negligence, the cause has been removed to this court, and several errors have been assigned to the rulings of the court below. As the seventh and last assignment, if well taken, renders a discussion of the others unnecessary, we will consider it here.

By the defendant's ninth point, the court was called upon to pass upon the sufficiency of the evidence, the point being, "that under all the evidence in this case, the plaintiffs cannot recover." The learned judge declined to so instruct the jury, upon the ground that it would withdraw the case from their consideration. This was the object of the point. It was not error to refuse it if there was sufficient evidence of the negligence of the defendant company to submit to the jury. On the other hand, it is equally clear that if there was no evidence, or at most a scintilla, it was the duty of the court to withdraw the case from the jury and give a binding instruction to find for the defendant. The authorities upon this point are numerous; it is sufficient to refer to a few of the later ones: Howard Express Co. v. Wile, 14 P. F. Smith 201; Hoag v. The Railroad Co., 4 Norris 293; Penna. Railroad Co. v. Fries, 6 Id. 234; and Mansfield Coal & Coke Co. v. McEnery, 10 Norris 185.

I have looked in vain through this record for any evidence of negligence on the part of the defendant company. There is not even a scintilla. The deceased was, at the time of the accident, and had been...