Schmidt v. Philadelphia & Reading Railway Co.

• Decision Date: 16 February 1914
• Docket Number: 299
• Citation: 244 Pa. 205,90 A. 569
• Parties: Schmidt, Appellant, v. Philadelphia & Reading Railway Company
• Court: Pennsylvania Supreme Court

90 A. 569

244 Pa. 205

Schmidt, Appellant, v. Philadelphia & Reading Railway Company

No. 299

Supreme Court of Pennsylvania

February 16, 1914

Argued January 14, 1914

Appeal, No. 299, Jan. T., 1913, by plaintiff, from judgment of C.P. No. 4, Philadelphia Co., March T., 1910, No. 2294 upon directed verdict for defendant in case of Kathleen Schmidt v. Philadelphia and Reading Railway Company, a Corporation. Reversed.

Trespass to recover damages for personal injuries. Before CARR, J.

The opinion of the Supreme Court states the facts.

The court directed a verdict for the defendant, upon which judgment was entered. Plaintiff appealed.

Error assigned was in directing a verdict for defendant.

Judgment reversed and a venire facias de novo awarded.

John J. McDevitt, Jr., with him John C. Bell, for appellant.

Wm. Clarke Mason, for appellee.

Before MESTREZAT, POTTER, ELKIN, STEWART and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE ELKIN

The question for determination here is whether the alleged contributory negligence of decedent was a question of law for the court or of fact for the jury. The husband was run down and killed after midnight at a grade crossing and this action was brought by the widow to recover damages. The presumption is that decedent did his duty which required that he stop look and listen before attempting to cross the tracks of defendant company. As has been frequently said this is only a presumption which may be rebutted by proofs showing or tending to show failure on the part of decedent to observe this imperative rule of law. It is often difficult in the trial of such cases to determine whether the evidence is sufficient to rebut the presumption and what tribunal shall decide the question. If no witnesses are produced to testify as to what a person so injured and killed did as he approached the crossing, the presumption is sufficient to take the case to the jury on the question of contributory negligence. If there be direct and positive evidence that the decedent did not stop, look and listen before attempting the crossing, and there is no testimony that he did perform this duty, there can be no recovery and it is the duty of the court to so declare as a matter of law. If some witnesses testify that the decedent did perform this duty, and others that he did not do so, it is for the jury to determine the fact. If there be no direct testimony on the subject, but circumstances, physical conditions on the ground, unobstructed view and other like matters, are relied on to rebut the presumption, much depends upon the facts of each particular case in determining whether the question of contributory negligence is for the court or jury. But, it is settled by a long line of decisions that the question of contributory negligence can only become one of law for the court in clear cases where the facts are undisputed and but one inference can be drawn from them. If the facts are disputed and different inferences may be drawn from them the case is always for the jury. In the case at bar the presumption was sufficient to carry the case to the jury, unless the undisputed testimony was sufficient to rebut it and was so clear as to warrant the court in thus declaring as a matter of law. In the opinion refusing the motion for a new trial the learned court below among other things said: "The plaintiff's witnesses do not state that Schmidt stopped, looked and listened, so that no conflict of testimony appears upon that point; and the testimony that Schmidt did not stop, look and listen is not inferential, but is direct and positive." It is true that no witnesses produced by plaintiff testified that Schmidt stopped, looked and listened as he approached the crossing, but it is likewise true that none of these witnesses testified that he failed to perform this duty. The evidence is...