Seifred v. Pennsylvania Railroad Co.

• Decision Date: 02 June 1903
• Docket Number: 268
• Citation: 55 A. 1061,206 Pa. 399
• Parties: Seifred v. Pennsylvania Railroad Company, Appellant
• Court: Pennsylvania Supreme Court

55 A. 1061

206 Pa. 399

Seifred v. Pennsylvania Railroad Company, Appellant

No. 268

Supreme Court of Pennsylvania

June 2, 1903

Argued May 11, 1903

Appeal, No. 268, Jan. T., 1902, by defendant, from judgment of C.P. Snyder Co., June T., 1901, No. 106, on verdict for plaintiff in case of William P. Seifred v. Pennsylvania Railroad Company. Reversed.

Trespass to recover damages for personal injuries. Before McCLURE P.J.

The opinion of the Supreme Court sufficiently states the case.

Verdict and judgment for plaintiff for $5,433. Defendant appealed.

Errors assigned were various rulings on evidence and various instructions.

The judgment of the court below is reversed and a venire facias de novo is awarded.

Andrew A. Leiser, for appellant. -- Opinions are never received if all the facts can be ascertained and made intelligible to the jury, or if they are such as men in general are capable of comprehending and understanding: Graham v. Pa. Co., 139 Pa. 149; Woeckner v. Motor Co., 187 Pa. 206; King v. Missouri Pacific Ry. Co., 98 Mo. 235 (11 S.W. Repr. 563); Closser v. Washington Twp., 11 Pa.Super. 112; McNerney v. Reading City, 150 Pa 611-616; Dooner v. Canal Co., 164 Pa. 17; Platz v. McKean Twp., 178 Pa. 601; Cookson v. Ry. Co., 179 Pa. 184; and it is reaffirmed and emphasized in Auberle v. McKeesport, 179 Pa. 321.

Absence of gates and flagman is not per se negligence: Collins v. Leafly, 124 Pa. 203; Phila. & Reading R.R. Co. v. Killips, 88 Pa. 405.

The instructions as to the life tables were insufficient: Steinbrunner v. Pittsburg, etc., Ry. Co., 146 Pa. 504; Campbell v. York, 172 Pa. 205; Kerrigan v. Penna. R.R. Co., 194 Pa. 98; McKenna v. Citizens' Nat. Gas Co., 198 Pa. 31.

Plaintiff was guilty of contributory negligence: Marland v. R.R. Co., 123 Pa. 487; Moore v. P.W. & B.R.R. Co., 108 Pa. 349; Penna. R.R. Co. v. Bell, 122 Pa. 58.

C. P. Ulrich and A. W. Potter, for appellee.

Before MITCHELL, DEAN, FELL, BROWN and MESTREZAT, JJ.

OPINION

MR. JUSTICE MESTREZAT:

It is not the number of exceptions taken during the trial nor the number of assignments of error filed in this court that determines the importance of the cause or the merits of the appeal when the case reaches the appellate court. This suggestion has been made so often by this court that its repetition would seem useless were it not that occasionally counsel still seem to think it necessary to raise the same question by several different assignments of error. Here we have seven assignments which raise but the single question of the competency of a witness to express an opinion as to the dangerous character of the crossing where the accident occurred. A like observation may be made as to the other assignments, and it is safe to say that of the thirty assignments of error filed in this case, one fifth of the number would have been adequate to raise all the questions presented by this record for our consideration. We make these suggestions with the hope that we may be relieved from an examination of an unnecessarily voluminous record, such as we have before us, should the next trial of this cause be followed by an appeal.

We think it was error to admit the opinion of witnesses to show that the crossing where the collision occurred was dangerous. The competency of such testimony is based upon necessity. Where facts disclosed by the evidence give an adequate and intelligent description of the situation, opinion evidence is not admissible. Here there can be no difficulty in placing before the jury by proper evidence the exact situation of the crossing and its approaches so that the jury will be enabled to determine with equal correctness as the witness the character of the crossing. The testimony produced on the trial shows the number of tracks, the manner in which they cross the highway, the frequency with which and the purpose for which they were used by the railroad, the cars standing on the track at the time of the accident, the buildings, trees, etc., along the approaches which obstruct the view of an approaching train; in a word, every fact which a juror could know by personal inspection of the premises and which would qualify him to testify as a witness. The jury therefore would have the same information and knowledge of the situation and be as competent and capable of forming an opinion as to the dangerous character of the crossing as any witness who might be called to the stand. No special knowledge or training was necessary to qualify a witness or juror to determine whether the crossing was dangerous or not, and a full and adequate description of the circumstances and situation having been given by the witnesses there was no necessity for opinion evidence on the subject and its admission was error.

The learned trial judge charged, inter alia, as follows: "If this crossing was not a more than ordinarily dangerous crossing, then the sounding of the bell and blowing of the whistle was sufficient notice, and the company would not be to blame for not having a watchman or flagman at that point and if the whistle was blown and the bell was rung as the engine approached the crossing, they have done their full duty at this point, if you find in addition that it was not a dangerous crossing." This was clearly misleading and erroneous and was not cured by any other part of the charge. In effect, the court said to the jury, if the crossing was dangerous it was negligence per se for the company not to guard it with a flagman or watchman. As suggested by counsel, all railroad crossings are more or less dangerous and are so regarded. The jury therefore was told by the court that the failure to furnish a flagman or watchman at the place of the accident was negligence. The learned judge may not have intended to say this to the jury but such was clearly the effect of that part of the charge just quoted. On running its trains over a crossing, a railroad company must exercise the care required by all the circumstances, and the failure to perform this duty is negligence. It must adopt and use some means for the protection of those who may be crossing its tracks at their...