Thomas v. Central Railroad Company of New Jersey

• Decision Date: 05 February 1900
• Docket Number: 203
• Citation: 194 Pa. 511,45 A. 344
• Parties: Elizabeth Thomas, Executrix of the last will and testament of William H. Thomas, Deceased, v. Central Railroad Company of New Jersey, Appellant
• Court: Pennsylvania Supreme Court

45 A. 344

194 Pa. 511

Elizabeth Thomas, Executrix of the last will and testament of William H. Thomas, Deceased, v. Central Railroad Company of New Jersey, Appellant

No. 203

Supreme Court of Pennsylvania

February 5, 1900

Argued January 5, 1900

Appeal, No. 203, Jan. T., 1899, by defendant, from judgment of C.P. No. 2, Phila. Co., Sept. T., 1895, No. 309, on verdict for plaintiff. Affirmed.

Trespass for death of plaintiff's husband. Before WILTBANK, J.

At the trial it appeared that on March 1, 1895, the deceased, who was the engineer of the Philadelphia & Reading Railroad Company's fast express train, known as "The Royal Blue," from Jersey City to Philadelphia, was killed at Bayonne city, by his train running into a wreck of empty coal cars. It appeared that the coal train, which consisted of a large number of coal cars, started for Jersey City somewhat ahead of the express train. At Bayonne a flagman signaled the coal train to stop. The signal was obeyed with the result that the back part of the train which had parted, piled up upon the forward cars, and a number of cars were precipitated upon the adjacent track. There was no explanation why the flagman had given the signal.

Other facts appear by the opinion of the Supreme Court.

Verdict and judgment for plaintiff for $8,500. Defendant appealed.

Errors assigned were (1) in refusing to admit in evidence release given to the Philadelphia & Reading Railroad Company; (2) in refusing to give binding instructions for defendant.

Judgment affirmed.

Richard C. Dale, with him Hazard Dickson, for appellant. -- There was no evidence that justified the submission to the jury of the question whether or not an erroneous signal had been given.

Even if the jury were justified in finding that in the swinging of the red lamp upon the platform there was a failure on the part of the defendant's servant to perform his duty, the death of plaintiff's husband was not the proximate consequence of such failure: Wood v. Penna. R. Co., 177 Pa. 306; Hoag v. Lake Shore, etc., R.R. Co., 85 Pa. 293; Penna. R. Co. v. Kerr, 62 Pa. 353; Harrison v. Berkley, 1 Strobh. 548; Scott v Allegheny Valley Ry. Co., 172 Pa. 646.

There was error in excluding defendant's offer of the facts relating to the payment to the plaintiff by the Philadelphia and Reading Relief Association, and the release by her of the liability of her husband's employers: Johnson v. Philadelphia & Reading R.R. Co., 163 Pa. 127; Seither v. Philadelphia Traction Co., 125 Pa. 397.

John F. Lewis, with him F. C. Adler and John Adams, for appellee. -- The signal given by the defendant's flagman was a signal to stop, while it should have been a signal that the train had parted.

Whether the signal was made to the engineer and not to the rear portion of the coal train, and whether it was according to the usual course of the business that the engineer should obey that signal, was left to the jury and has been found in plaintiff's favor.

The Philadelphia and Reading Railroad Company was not guilty of negligence and is not a joint tort feasor with respect to the accident which caused the death of plaintiff's decedent.

There is not only no evidence whatever that the coal train was improperly equipped in any manner, or that mingling cars of different sizes and patterns was negligence, but the evidence is uncontradicted that such mingling of the different cars was then the usual practice.

The improper signal by the defendant's flagman was the direct and proximate cause of the death of plaintiff's husband: Bunting v. Hogsett, 139 Pa. 374; Morrison v. Davis & Co., 20 Pa. 171; R.R. Co. v. Reeves, 10 Wallace, 176; Shearman and Redfield on Negligence (5th ed.), sec. 29; Wood v. Penna. R. Co., 177 Pa. 306; Haverly v. State Line, etc., R. Co., 135 Pa. 50.

The case of Penna. & New York Canal & R.R. Co. v. Lacey, 89 Pa. 458, decided in 1879, has facts quite similar to those of Penna. R. Co. v. Kerr, and yet this Court in a per curiam failed to follow that case, but followed instead Penna. R. Co. v. Hope, 80 Pa. 373, and held that the case must go to the jury.

The present case was properly submitted to the jury: Shearman and Redfield on Negligence, sec. 55; Oil Creek, etc., Ry. Co. v. Keighron, 74 Pa. 316; Penna. R. Co. v. Hope, 80 Pa. 373; Lehigh Valley R.R. Co. v. McKeen, 90 Pa. 127; Oil City Gas Co. v. Robinson, 99 Pa. 1; Haverly v. R.R. Co., 135 Pa. 50; Hoehle v. Heating Co., 5 Pa. Superior Ct. 21; Yoders v. Amwell Township, 172 Pa. 447.

There was no error in excluding defendant's offer of the facts relating to the payment by the Philadelphia & Reading Relief Association: Seither v. Phila. Traction Co., 125 Pa. 397; Johnson v. Phila. & Reading R.R. Co., 163 Pa. 127.

Before GREEN, C.J., McCOLLUM, MITCHELL, DEAN, FELL, BROWN and MESTREZAT, JJ.

OPINION

MR. JUSTICE MITCHELL:

It is admitted that the defendant's employee, the flagman at the place of the accident, gave a signal to stop, and this being acted on by the engineer of the coal train produced the break up of the train and the piling up of the cars on the adjacent track. It is argued for appellant that the parting of the coal train is not proved, but only a matter of inference. There was, however, evidence for the jury that the train had parted. The conductor of the coal train testified that the cause of the cars piling up was "the tail end of the train running into us . . . the train was parted." But this was not a controlling circumstance. The signal given was to stop, and the jury, under explicit instructions from the judge, guarding most carefully the rights of defendant, have found that it was given to the front of the train, that is, to the engineer. Whether the flagman should have given the signal for a parted train, or had no occasion to give any signal at all, is not important. The signal he did give was to stop the train; no...