Urias v. Pennsylvania R. Co.

• Decision Date: 03 January 1893
• Docket Number: 259
• Citation: 152 Pa. 326,25 A. 566
• Parties: Urias v. Pennsylvania R.R. Co., Appellant
• Court: Pennsylvania Supreme Court

25 A. 566

152 Pa. 326

Urias v. Pennsylvania R.R. Co., Appellant

No. 259

Supreme Court of Pennsylvania

January 3, 1893

Argued November 8, 1892

Appeal, No. 259, Oct. T., 1892, by defendant, from judgment of C.P. No. 3, Allegheny Co., Feb. T., 1892, No. 262, on verdict for plaintiff, Mary E. Urias.

Trespass for death of plaintiff's husband.

At the trial, before KENNEDY, P.J., it appeared that plaintiff's intestate was killed on July 20, 1891, by being struck by a train of cars on defendant's railroad at a grade crossing at Copeland station. The facts appear by the opinion of the Supreme Court. Defendant's request for binding instructions was refused. [1]

Verdict and judgment for plaintiff for $2,500. Defendant appealed.

Error assigned was, (1) instruction, quoting it.

Judgment reversed.

George B. Gordon, William Scott with him, for appellant. -- Urias stopped where he had no view, while the law requires that he must stop where he can see: Central R.R. of N.J. v Feller, 84 Pa. 226; P. & R.R.R. v. Carr, 99 Pa. 510; P.R.R. v. Beale, 73 Pa. 509.

Urias could not have failed to see this train had he used his eyes. One who is struck by a moving train which was plainly visible from the point he occupied when it became his duty to stop, look and listen must be conclusively presumed to have disregarded that rule of law and of common prudence, and to have gone negligently into an obvious danger: Myers v. B. & O.R.R., 150 Pa. 386; Carroll v. P.R.R., 2 Penny. 159; s.c., 12 W.N. 348; Moore v. P.W. & B.R.R., 108 Pa. 353; Morgan v. Camden & Atlantic R.R., 23 W.N. 189; P.R.R. v. Bell, 122 Pa. 58; Marland v. Pittsburgh & Lake Erie R.R. Co., 123 Pa. 487.

R. E. Stewart, for appellee. -- There was evidence to warrant a verdict against the defendant for negligence on two grounds: (1) Because of the dangerous speed at which the train which caused the accident was run in the absence of any watchman or guard of any kind at the crossing where the accident occurred. (2) Because due and timely warning was not given of the approach of the train to the crossing at the time of the accident.

The place where Mr. Urias stopped was the best, if not the only available place that could have been chosen under the circumstances. But whether it was the best place or not was at all events a question for the jury: Ellis v. Lake Shore etc. R.R., 138 Pa. 506.

Before PAXSON, C.J., GREEN, WILLIAMS, McCOLLUM, MITCHELL and HEYDRICK, JJ.

OPINION

MR. PAXSON, CHIEF JUSTICE:

The only specification is, that the court below erred in refusing defendant's sixth point. The point was as follows: "That under all the evidence in this case the verdict should be in favor of the defendant."

The alleged negligence of the defendant was of a twofold character. First, that the train was running at an unreasonable rate of speed, and, second, that no warning was given by the blowing of the whistle, or the ringing of the bell, of the approach of the train to the crossing where the accident occurred.

The train appeared to have been running at a rate of from forty to forty-five miles an hour. The witnesses for the plaintiff testify that it was running at a high rate of speed without fixing the rate. This, perhaps, they could not do with anything like accuracy, owing to their want of experience in such matters. The defendant's witnesses, who are perhaps better qualified, fix the rate at from forty to forty-five miles, as before stated.

The testimony was conflicting, as is usual in such cases, in regard to the blowing of the whistle and the ringing of the bell. That, produced on the part of the plaintiff, was mostly negative in its character. It was in substance that they did not hear any such warning, though some of them say that they could have heard it if it had been given. On the part of the defendant at least as many witnesses testified positively that the whistle was blown at the proper place to give warning, and that the bell was rung. Some of these witnesses have no connection with the road, and, for anything that appears, were disinterested.

The difference between positive and negative testimony upon a question of this kind is very marked, and it would be well if the attention of jurors was more pointedly called to it by the court in the trial of such cases. One witness who hears the ringing of a bell is worth more than the testimony of a dozen witnesses who did not hear it, unless in some manner their attention had been especially called to it. The witness who heard the bell either tells the truth, or he tells a deliberate and willful falsehood, while the witness who did not hear the bell may be, and is probably truthful. The bell may be rung or the whistle blown without attracting the attention of persons who are familiar with such sounds. Several of the witnesses who were called on behalf of the plaintiff, and testified that they did not hear the warning yet say that they distinctly heard the short, shrill signal of the danger whistle. I have no doubt they were entirely truthful in what they said. The reason they heard the one and not the other is easily reconcilable with common experience. The long whistle, which is used in approaching a station, is so common upon a leading railroad line that persons living in the vicinity, and especially near a crossing, may hear it many times during the course of the day. It is so frequent that they may not notice it. It conveys no meaning beyond the fact that a train is approaching a station or a crossing, but when the shrill warning signal is given by two or more sharp blasts it is likely to attract the attention of persons in the vicinity. It is known to mean immediate danger to some one. Thus we learn from plaintiff's testimony that the danger signal, given just before the accident, attracted the immediate attention of those who did not hear the whistle or the bell at the warning post. They rushed immediately...