278 Pa. 366 | Pa. | 1924
Opinion by
The plant of the Atlantic Refining Company between Oil City and Franklin covers a large tract of
The widow brought suit for damages on behalf of herself and children, claiming death was the result of negligence in handling the engine which hit her husband. A lack of signals or notice of the advance of the train was averred, and several witnesses testified that no bell was rung or whistle blown. All of this evidence was negative in character, and insufficient to make Out plaintiff’s case (Anspach v. P. & R. Ry. Co., 225 Pa. 528; Kubrak v. P. R. R. Co., 255 Pa. 379; Craft v. Hines, 272 Pa. 499), except that given by Bross, a fellow employee of Cubitt, who asserted he was in a position to hear, and would have observed if any warning had been given. This statement, though contradicted by several witnesses, was sufficient to carry the question of defendant’s negligence to the jury (Hugo v. B. & O. R. R. Co., 238 Pa. 594), and appellant’s complaint of its submission, now made here, cannot be sustained.
A more serious controversy rests on the claim that the facts and circumstances attending the accident so clearly indicate a lack of proper care on the part of deceased as to prevent recovery. The request for binding instructions on this ground was declined, and the court below refused to enter judgment for the defendant on motion subsequently made. The correctness of this action is to be considered, having in mind the rule that
Cubitt had been an employee of the Refining Company for some time and was acquainted with the surroundings. He knew the train entered the switch track daily at about the same hour, moved west to the powerhouse and returned thereafter to the main line with empty cars. On the day of the accident, he saw it make the accustomed trip when he passed coming east from the boiler house to reach the other side of the plant. He walked, with a tool box over his left shoulder, and carrying a dinner bucket, on a generally used gravel path, which extended along the side from the power house to a private driveway. From the end, he continued to advance, either on the track, or by its side, where there was ample room for pedestrians. The engine approached backwards, in the same direction as that in which the deceased was moving, at a speed of from fifteen to twenty miles an hour, and struck him past the line of the first shed, while he was crossing the rails, — to use the words of plaintiff’s statement. The train crew failed to observe any one, and the exact location of the accident is not fixed, but the uncontroverted physical facts indicate the place: Horen v. Davis, 274 Pa. 244. As stated by a witness on each side, a shoe, a part of his leg, and objects carried by him, were found about twenty-five feet beyond the corner of the building, and the body between the rails, approximately one hundred feet farther east, along the coal trestle, where it evidently 'had* been dragged.
The deceased was not required by his duties to be upon the track, and the right to damages is not controlled by the authorities which hold such proof makes necessary the submission to the jury of the question of due care on the part of the one injured: Van Zandt v. P., B. & W. R. R. Co., 248 Pa. 276; Dutrey v. P. & R. Ry. Co., 265 Pa. 215; Nadazny v. P. & R. Ry. Co., 266
The fact that the defendant was negligent in not giving a signal, or in running its engine backward, did not relieve the deceased from using proper care: Smith v. McAdoo, 266 Pa. 328. Prom the corner of the shed, near the point of accident, there was an unobstructed view of the track to the power house, and the same was true from the Are plug, slightly beyond, where a shoe, with a foot in it, a dinner bucket and a notebook, were found, according to the testimony of a witness for plaintiff. Certainly, an approaching train could be observed for a considerable distance, — appellant states for 1,800 feet, a fact not controverted in the counter-history filed, and, it may be assumed, appellee is satisfied with the estimate made (Rule of Court No. 47). That the engine and cars must have been seen for a long way by any one who looked is apparent from an examination of the map and photographs submitted. Farther on, where the body was found, the line of vision was much reduced, the shed interfering because of a bend in the road. Had Cubitt
If oral evidence is shown by proven physical facts to be untrue, the former must be disregarded: Lessig v. Reading L. & T. Co., 270 Pa. 299; Chapman v. Clothier, 274 Pa. 394. Likewise, a presumed fact falls in the face of incontrovertible testimony to the contrary, given by witnesses, or derived from proof of the attending circumstances: Hazlett v. Director General, 274 Pa. 433. It is urged, however, that in all such cases the jury must pass on the question, and, when the credibility of witnesses is alone involved, this statement of the legal rule is correct: Holzheimer v. Lit Bros., 262 Pa. 150; Shaughnessy v. Director General, 274 Pa. 413. But where the indisputable physical testimony, as indicated by actual measurements, maps or photographs, negatives the existence of the fact ordinarily presumed, this is not true: Hill v. P. R. T. Co., 271 Pa. 232; Seiwell v. Hines, 273 Pa. 259. The assumption of the use of due care to avoid a threatened injury has no weight when the actual conditions disclosed upon the ground clearly establish that the deceased had for a long distance an unobstructed view of the train, moving at a moderate rate, and was struck while between the rails of the switch, or nearer to it than was safe. The only conclusion is that Cubitt either did not make an effort to see when he proceeded along the track, or did observe and was heedless of the impending danger. In either case he was guilty of
Tbe judgment is reversed, and is here entered for tbe defendant.