Terry v. Delaware, Lackawanna & Western Railroad Co.

• Decision Date: 21 July 1915
• Docket Number: 39-1915
• Citation: 60 Pa.Super. 451
• Parties: Terry v. Delaware, Lackawanna & Western Railroad Co., Appellant
• Court: Pennsylvania Superior Court

60 Pa.Super. 451

Terry v. Delaware, Lackawanna & Western Railroad Co., Appellant

No. 39-1915

Superior Court of Pennsylvania

July 21, 1915

Argued March 2, 1915

Appeal by defendant, from judgment of C.P. Luzerne Co.-1911, No 181, on verdict for plaintiff in case of Ada Terry v Delaware, Lackawanna & Western R. R. Company.

Trespass to recover damages for death of plaintiff's husband.

The facts relating to the accident are stated in the opinion of the Superior Court.

Verdict and judgment for plaintiff for $ 1,000. Defendant appealed.

Error assigned was in refusing binding instructions for defendant.

J. H Oliver, with him B.R. Jones and D.R. Reese, for appellant. -- The amendment was improperly allowed: Mahoney v. Park Steel Co., 217 Pa. 20; Philadelphia v. Hestonville, Etc., Railroad Co., 203 Pa. 38; Grier v. Assurance Co., 183 Pa. 334; Lane v. Sayre Water Co., 220 Pa. 599; Martin v. Pittsburgh Ry. Co., 227 Pa. 18.

There is right to recover where the evidence fails to disclose affirmatively that the accident happened at the alleged permissive crossing: Grant v. Philadelphia B. & W.R. R. Co., 215 Pa. 265; Cawley v. B. & O. R. R. Co., 44 Pa.Super. 340.

3. There is no right of the plaintiff to recover where all positive testimony is that signals were given -- the testimony of no signals being negative in character: Keiser v. Lehigh Valley R. R. Co., 212 Pa. 409; Anspach v. Philadelphia, Etc., Ry. Co., 225 Pa. 528; Mellet v. Reading Transit Co., 55 Pa. 465; Leader v. North. Cent. Ry. Co., 246 Pa. 452; Charles v. Lehigh Valley R. R., 245 Pa. 496.

There is no right of the plaintiff to recover in this case where the view of approaching trains is unobstructed for a long distance and under the following additional circumstances.

(A) Accident happened before sunrise.

(B) All the positive testimony that headlight was burning -- negative testimony that it was not burning.

(C) Uncontradicted testimony that two classification lights in front of engine were burning.

(D) Train itself could be seen for a thousand feet: Nelson v. P., C., C. & St. L. Ry. Co., 57 Pa.Super. 541; Welsh v. Penna. R. R. Co., 222 Pa. 162; Tozer v. Altoona, Etc., E. Ry. Co., 45 S.Ct. 417; Shope v. Central Penna. Traction Co., 242 Pa. 207; Hamilton v. C. R. R. of N.J., 227 Pa. 137; Urias v. Penna. R. R. Co., 152 Pa. 326; Beach v. Penna. R. R. Co., 212 Pa. 567; Paul v. Philadelphia & Reading, 231 Pa. 338; Evans v. Penna. R. R. Co., 226 Pa. 370; Myers v. B. & O. R. R., 150 Pa. 386.

Chas. B. Lenahan, with him Joseph P. Lord, for appellee, cited: Taylor v. Delaware & Hudson Canal Co., 113 Pa. 162; Lodge v. Pittsburgh and L. E. R. R. Co., 243 Pa. 10; Haverstick v. Penna. R. R. Co., 171 Pa. 101; Laib v. Penna. R. R. Co., 180 Pa. 503; Hugo v. B. & O. R. R., 238 Pa. 594.

Before Rice, P. J., Orlady, Head, Kephart and Trexler, JJ.

OPINION

KEPHART, J.

The original statement sets forth " that the said railroad in the Borough of Dorranceton, or partly in the Borough of Dorranceton and partly in the Borough of Luzerne, crosses a street known as John street, in the said Borough of Dorranceton, where the said street connects with or runs into Marion street in the said Borough of Luzerne; that the said railroad crosses said street or streets at grade." These boroughs are contiguous, the line between them being about the center line of the railroad. John street and Marion street end at the railroad, or rather intersect the streets running parallel with the railroad in their respective boroughs. If both streets were projected across the tracks they would be from twenty to thirty feet apart. Plaintiff amended her statement by averring that for many years prior to the date of the accident there was a well-defined pathway across the tracks which was used for foot travel going from Marion street to John street. This amendment did not change the cause of action or the location of the accident. It did not impose any new or different duty on the defendant other than what was embraced in the original statement. It did limit and define the precise location of the accident within the space described in the statement. The first assignment of error is overruled.

After a careful examination of the plaintiff's evidence relating to the location, use and existence of the permissive crossing, and the testimony relative to the place where the deceased was found, we are convinced that there was sufficient evidence from which the jury might reasonably infer that the deceased was injured while using the permissive crossing. When the deceased was found on a permissive highway, which crosses the railroad at grade, it being a public highway to the extent of its use, the presumption is that he was rightfully on the highway for the purpose of crossing and that he was injured while crossing: Lehigh Valley R. R. Co. v. Hall, 61 Pa. 361; Welsh v. Erie, Etc., Railroad Co., 181 Pa. 461. We cannot agree with the learned counsel for the appellant that with mathematical accuracy it can be stated positively from the testimony that the place at which Terry was found was some distance west, or towards Kingston, from the permissive pathway. The plaintiff fixes the location of the deceased, at a point close to the outside rail of the track next to and immediately opposite John street. The location of the permissive crossing runs diagonally from John street to Marion street. From this description it might be fairly found by the jury that the place where the deceased was lying was on the permissive crossing. Appellant can only reach its conclusion here urged by excluding all the testimony except that as to the ends of the eastern and western lines of John and Marion streets, and drawing a diagonal line between these points and confining the deceased to that line. The location of the pails of coal carried by the deceased was not fixed with definiteness. If it had been, their mere location a few feet away from the permissive crossing would not be conclusive as to the place where the accident occurred. Such evidence would not overcome the presumption arising from the finding of the injured man on the permissive crossing. It would not warrant the court in holding that the deceased was a trespasser, and as such trespasser, the defendant owed him no duty. The second assignment of error is overruled.

Shortly before six o'clock on the morning of December 16, 1910 while it was quite dark, the deceased, who had apparently gone from his home to a canning factory close by, where he worked, to secure two pails of coal for domestic use, while returning was run down by a train of the defendant and received injuries from which he died in a few days. No one saw the accident, nor is there any evidence fixing the deceased on the permissive crossing before the accident occurred. There is no dispute that the defendant was injured by a train, and the identity of the train is apparently admitted. From sufficient evidence the jury has fixed the place of the accident as being on the permissive crossing. At such crossing the defendant owed to those using it the duty of reasonable care, and whether or not such reasonable care was exercised is ordinarily a question for the jury under all the...