Schwarz v. Railroad Co.

• Decision Date: 01 May 1905
• Citation: 211 Pa. 625
• Parties: Schwarz, Appellant <I>v.</I> Delaware, Lackawanna & Western Railroad Company.
• Court: Pennsylvania Supreme Court

211 Pa. 625

Schwarz, Appellant

v. Delaware, Lackawanna & Western Railroad Company.

Supreme Court of Pennsylvania.

March 6, 1905.

May 1, 1905.

Argued March 6, 1905.

Appeal, No. 47, Jan. T., 1904, by plaintiff, from order of C. P. Munroe Co., Feb. T., 1901, No. 11, refusing to take off nonsuit in case of Richard F. Schwarz v. The Delaware, Lackawanna & Western Railroad Company.

Before MITCHELL, C. J., FELL, BROWN, MESTREZAT and POTTER, JJ. Reversed.

F. B. Holmes, with him Shull & Shull, for appellant.—It was not within the province of the court to determine either the speed of the train or that of the wagon. That was a question for the jury under the evidence: Freel v. Wanamaker, 208 Pa. 279; Penna. R. R. Co. v. Werner, 89 Pa. 59; Sprowls v. Morris Twp., 179 Pa. 219; Stover v. Penna. R. R. Co., 195 Pa. 616; D., L. & W. R. Co. v. Smith, 1 Walker, 88; Muckinhaupt v. Erie R. R. Co., 196 Pa. 213.

Upon a state of facts admitted or proved by direct and undisputed testimony the court may pronounce the law applicable thereto; but when alleged facts are the subject of inference, from other facts, and circumstances shown by the evidence, it is the exclusive province of the jury to consider the testimony and ascertain the facts under proper instructions from the court: McGill v. Pittsburg etc., Railway Co., 152 Pa. 331; Longenecker v. Penna. R. R. Co., 105 Pa. 328; Cromley v. Penna. R. R. Co., 208 Pa. 445; Arnold v. Phila. & R. R. R. Co., 161 Pa. 1; Penna. R. R. Co. v. Garvey, 108 Pa. 369; Hoffmeister v. Penna. R. R. Co., 160 Pa. 568.

The brush and piles of ties, which obstructed the view, were matters to be taken into consideration in determining whether or not the driver could have seen the train: Kuntz v. New York, etc. R. R. Co., 206 Pa. 162; Toban v. Lehigh & Wilkes-Barre Coal Co., 24 Pa. Superior Ct. 475; Faust v. Philadelphia & Reading Ry. Co., 191 Pa. 320.

Everett Warren, of Willard, Warren & Knapp, and A. Mitchell Palmer, for appellee, cited: Gangawer v. P. & R. R. R. Co., 168 Pa. 265; Kinter v. Penna. R. R. Co., 204 Pa. 497; Gerety v. Phila., etc., Railroad Company, 81 Pa. 274; Carroll v. Penna. Railroad Co., 12 W. N. C. 348; Schum v. Penna. R. R. Co., 107 Pa. 8.

OPINION BY MR. JUSTICE POTTER, May 1, 1905:

This is an appeal from the refusal to take off a judgment of nonsuit. The learned trial judge felt that from the facts, the unavoidable conclusion followed that the deceased (two young men) were guilty of contributory negligence. He attempted to demonstrate this by a mathematical calculation, and in so doing assumed that the train was moving at a uniform speed of forty miles per hour; that the wagon was moving at a uniform speed of two miles per hour; that the wagon was struck when the driver was directly in the center of the south-bound track; that when the train came into view, the driver was thirty feet from that point. In order to sustain the judgment, all of these propositions must have been founded upon clear and undisputed evidence. From our examination of the testimony, we are not able to argue that they are.

With reference to the first matter mentioned — the speed of the train — the trial judge in his opinion says: "There is evidence, however, from which the only fair inference is that the train was running at the rate of about forty miles an hour, and the wagon was crossing the tracks at the rate of about two miles an hour." The opinion then goes on to say that "The only evidence bearing upon the rate of speed of the train is that of Edwin M. Rine, the division superintendent of the defendant company." These statements entirely ignore the testimony of four witnesses, all of whom resided close to the place of the accident and heard the approaching train, and testified as follows: James Anderson, who was an experienced railroad man, having been engaged as a fireman and a brakeman on both passenger and freight trains, testified that the train was running fast, very much faster than any other morning. John Williams, who was also a railroad man of some experience, testified that the train was running fast according to the sound. "It made more noise that morning than at any previous time. It was running faster than usual." Rosinda Dreher testified that she heard the train coming very fast. "It made a noise like all trains do when they are running fast, just seemed to come like a flash." Clara E. Kennedy testified that she heard the train coming at a very rapid rate. We are not able to find that Edwin M. Rine gave any evidence as to the speed of the train. He merely...