52 Pa. Super. 568 | Pa. Super. Ct. | 1913
Opinion by
It appears by the testimony of Mr. Atmore, United States inspector of customs, that he was notified (by whom is not stated)' that two casks of brandy were to be landed from the Italian bark Rosario, which was moored alongside Pier 62, South Wharves, Philadelphia. By his direction the plaintiff, a bonded teamster for the government, sent a team and wagon, in charge of his employee, to receive and haul away the casks. Two railroad tracks of the defendant ran along that side of the pier to which the ship was moored, and, while it does not appear that there was a traveled way on the pier
It is contended that binding direction should have been given for the defendant upon the ground of the driver’s negligence. But it is to be observed that the defendant offered no evidence, and that it did not affirmatively appear, at least not conclusively, in the presentation of the plaintiff’s case, that, when the driver backed the wagon across the tracks, the cars were in motion. And, if it be true, as the evidence would have warranted the jury in finding, that that was the only way to remove the casks from the ship by wagon, then, unless the cars were in motion, it could not be declared, as matter of law, that placing the wagon in that position was a negligent act which would bar recovery notwithstanding the defendant’s negligence. Nor did the fact that the driver was off the wagon after it had been placed in the required position, conclusively establish negligence on his part. A finding by the jury that being about the horses, instead of on the wagon, was the exercise of due care in the circumstances, would not be absurd. The question of contributory negligence cannot be treated as one of law unless the facts and the inferences to be drawn from them are free from doubt. If there is doubt of either, the case is for the jury: Kuntz v. N. Y., etc., R. R. Co., 206 Pa. 162; Coolbroth v. Penna. R. R. Co., 209 Pa.
Was the defendant negligent, or, to be more accurate, was the evidence sufficient to warrant the submission of .that question to the jury and a determination of it by them in the affirmative? It is not alleged in the plaintiff’s statement of claim, and there is no evidence that would sustain a finding, that the defendant’s employees, knowing that the plaintiff’s wagon was on the track, recklessly or wantonly backed the train upon it. What is alleged is that the train was negligently operated, in that it was backed down the track without a lookout being kept for objects or persons that might be on the track. The only testimony on this subject is that of Mr. Atmore, which was to the effect that he did not see any attendant on the rear freight car or anywhere on the train, and that, by reason of the other end of the train being obscured or the train being too long, he could not see whether there was an engine. As to whether a warning signal of the approach of the train was given the evidence is silent. Nor is there any evidence as to the speed of the train. There remains to be considered the fact that the train was backed without any person at the rear end to keep a lookout and to give warning of its approach.
The judgment is reversed and is now entered for the defendant.