Rumsey v. Delaware, L. & W. R. Co.

• Decision Date: 03 October 1892
• Docket Number: 316
• Citation: 151 Pa. 74,25 A. 37
• Parties: Rumsey v. D., L , & W.R.R. Co., Appellant
• Court: Pennsylvania Supreme Court

25 A. 37

151 Pa. 74

Rumsey v. D., L , & W.R.R. Co., Appellant

No. 316

Supreme Court of Pennsylvania

October 3, 1892

Argued April 11, 1892

Appeal, No. 316, Jan. T., 1892, by defendant, from judgment of C.P. Luzerne Co., Oct. T., 1886, No. 826, on verdict for plaintiffs, Helen Rumsey et al.

Trespass to recover damages for the death of husband and father of plaintiffs, alleged to have been caused by negligence of defendant.

At the trial, before WOODWARD, J., it appeared that Overton K Rumsey, plaintiff's decedent, had been employed for several years by defendant as a freight conductor on the Bloomsburg division. His business was to shift cars with the switching engine "Rupert," which was under his charge, together with men making up his crew. His daily work was between Plymouth and Kingston stations, which are about three or four miles apart. North of Plymouth station is a public highway crossing the railroad, which at this point consists of four tracks. At the time of the accident the driver of a sprinkling wagon stopped his wagon at this crossing a few feet from the first track. He heard and saw a coal train pass, when he started, and had just got his horses on the track when the engine "Rupert" struck the team. One of the horses fell upon the flag staff of the engine, and struck Rumsey, who was sitting on the left side of the pilot of the engine, knocking him off and killing him. The evidence showed that Rumsey had gone to the pilot to give some instructions to a brakeman.

The court charged in part as follows:

"It is proved, gentlemen, that there was no watchman at this crossing. The road led from a main street of the borough of Plymouth to a ferry at the river. It has been used as a highway for forty or fifty years. At the point where it crosses the railroad there are four tracks, two of them constituting the main line of the D., L. & W. railroad, and the other two being used for sidings, upon which it was the custom to allow freight cars to stand. When the side tracks were thus occupied by cars, the view of the main line was obstructed for a considerable distance, so that a party driving on the road would not be able to see an approaching train. At the time of this accident cars were standing upon these sidings. The driver of the wagon testifies that the space left for the passage of teams between the cars was about fifteen feet wide, other witnesses place it at twenty to twenty-five feet. The driver also swears that he stopped and looked and listened and that he neither saw nor heard anything of an approaching train. Richard Lynn, a brakeman on the engine, testifies that the engineer could not see the wagon at the crossing, from the engine. The map in evidence also shows the position of the tracks, and from it and the testimony of the witnesses you will be able to form an intelligent judgment as to the condition of this crossing on the day of the accident. I express no opinion, gentlemen of the jury, myself, on the question thus presented, but instruct you to find from the evidence whether the defendant is fairly chargeable with want of ordinary care, in view of the character of this crossing and the manner of its customary use, in omitting to station a watchman there." [1]

Defendant's points were as follows:

"1. From the plaintiff's own evidence, the deceased was at the time of the accident in a place of known danger, and his negligence in being there contributed to cause the accident by which he lost his life, and, therefore, the plaintiff cannot recover. Answer: We decline to affirm this point and thus take the case from the jury: because we are not satisfied that the position occupied by the deceased upon the front part or pilot of the engine, at the time of the accident, under the peculiar circumstances of this case constituted such clear concurrent negligence on his part as to justify the ruling requested in this point. [3, 4]

"2. There is nothing in the evidence to show that the defendants omitted any duty which they owed to deceased, or were guilty of any negligence contributing to the death of plaintiff's husband." Refused. [2]

"3. Under all the evidence in the case the plaintiff cannot recover, and the verdict must be for the defendant." Refused. [5]

Verdict and judgment for plaintiff for $4,000.

Defendant appealed.

Errors assigned were (1) portion of charge as above, quoting it (2-5) answers to points, quoting points and answers.

Judgment reversed.

Andrew H. McClintock and Henry W. Palmer, for appellant, cited on the question of the risk of employment, Mansfield C. & C. Co. v. McEnery, 91 Pa. 185; Lake Erie & Western R.R. v. Lyons, 119 Pa. 324; P. & R.R. v. Hughes, 119 Pa. 301; Golwitzer v. Pa. R.R., 1 Mona. 72; P. & C.R.R. v. Sentmyer, 92 Pa. 276; Kennedy v. R.R., 1 Mona. 271; Kelly v. B. & O.R.R., 11 A. R. 659; Sweeney v. Berlin & Jones E. Co., 101 N.Y. 520; Mich. Cent. R.R. v. Austin, 40 Mich. 247; Ind. Cen. R.R. v. Love, 10 Ind. 556; Ladd v. New Bedford R.R., 119 Mass. 412; Lovejoy v. B. & L.R.R., 125 Mass. 79; Mo. Pac. Ry. v. Somers, 14 S.W. 779.

W. H....