Savitz v. Lehigh & New England Railroad Co.
| Decision Date | 29 April 1901 |
| Docket Number | 62 |
| Citation | 48 A. 987,199 Pa. 218 |
| Parties | Savitz, Appellant, v. Lehigh and New England Railroad Company |
| Court | Pennsylvania Supreme Court |
Argued March 12, 1901
Appeal, No. 62, Jan. T., 1901, by plaintiff, from order of C.P. Northampton Co., June T., 1899, No. 27, refusing to take off nonsuit in case of Amanda E. Savitz v. Lehigh & New England Railroad Company. Affirmed.
Trespass to recover damages for death of plaintiff's husband. Before SCHUYLER, P.J.
The facts appear by the opinion of the Supreme Court.
Error assigned was refusal to take off nonsuit.
The judgment is affirmed.
W. E Doster, for appellant. -- A state of facts once shown to exist is presumed to continue until the contrary is shown. Pope v. Kansas City Cable Ry. Co., 99 Mo. 400; Louisville, New Albany & Chicago Ry. Co. v. Thompson, 5 Western Repr. 837; Bates v. Pricket, 5 Ind. 22; Adams v. Slate, 87 Ind. 573; Flannery v Waterford, etc., Ry. Co., Ir. Rep. 11 C.L. 30; Carpue v. London & Brighton Ry. Co., 5 Ad. & E. (N.S.) 751.
Negligence can be proved by circumstantial evidence where the circumstances are such as to repel any other conclusion: Shearman & Redfield on Negligence, sec. 58.
Negligence is always a question for the jury where there is any doubt as to the facts or as to the inferences to be drawn from them: Johnson v. Bruner, 61 Pa. 58; Vannatta v. Central R.R. Co. of N.J., 154 Pa. 263; Patterson v. Pittsburg & Connellsville R.R. Co., 76 Pa. 389; Neslie v. Second & Third St. Pass. Ry. Co., 113 Pa. 300; Henderson v. Phila. & Reading R.R. Co. 144 Pa. 481.
However slight the evidence, if there be any from which the jury might draw an inference in favor of plaintiff, the case should be submitted to the jury: Bevan v. Ins. Co. of Penna., 9 W. & S. 187; Baker v. Lewis, 33 Pa. 301; Berg v. Abbott, 83 Pa. 177; Maynes v. Atwater, 88 Pa. 496; Miller v. Bealer, 100 Pa. 583.
E. J. Fox, with him J. W. Fox and George W. Mackey, for appellee. -- The mere fact of the accident is not enough to establish negligence: Mixter v. Imperial Coal Co., 152 Pa. 395; East End Oil Co. v. Penna. Torpedo Co., 190 Pa. 350; Allegheny Heating Co. v. Rohan, 118 Pa. 223; Melchert v. Smith Brewing Co., 140 Pa. 448.
A servant will be deemed to have assumed all risks naturally and reasonably incident to his employment: Phila., Wilmington, & Baltimore R.R. Co. v. Keenan, 103 Pa. 124; Rummell v. Dilworth, 111 Pa. 343; Brossman v. Lehigh Valley R.R. Co., 113 Pa. 490; Boyd v. Harris, 176 Pa. 485; Phila. & Reading R.R. Co. v. Hughes, 119 Pa. 301; Mensch v. Penna. R.R. Co., 150 Pa. 598.
Before McCOLLUM, C.J., MITCHELL, FELL, MESTREZAT and POTTER, JJ.
The plaintiff's husband, while in the employ of the Central Railroad of New Jersey as a brakeman, was killed in an accident which occurred on a section of the road of the Lehigh and New England Railroad Company, the defendant, which was used in common by both companies. The negligence alleged was that the defendant, whose duty it was to keep the road in good condition, allowed a switch which connected the main track with the siding of an electric light plant, to remain out of repair and to be unlocked, by reason of which the engine was deflected from the track to the siding. These allegations were not sustained by the testimony. It was not shown that the switch was out of repair. It was unlocked at the time of the accident, but it was properly set and held in place by its lever, and its being unlocked did not cause nor contribute to the accident. The testimony admitted was all directed to show that the accident might have been caused by the point of the switch not closing against the main track tightly enough to prevent the wheels of the truck entering the siding. But this was only one of several possible, if not equally probable, causes shown, the others being a defective truck, defective equipments of the engine, and an obstruction on the track.
In order to avoid taking the deposition of a witness who was unable on account of sickness to attend at the trial, it was agreed by counsel that the notes of his testimony taken at a former trial should be read to the jury. When these notes were offered, they were objected to and excluded by the court on the ground that the witness had no knowledge of the condition of the switch on the day of the accident, and that his testimony threw no light on the issue raised. We are inclined to the view that the agreement by its terms waived all objections as to the relevancy of the testimony, and that it should have been admitted. We may now, however, consider the legal effect of...
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