12 A.2d 919 | Pa. | 1940
Plaintiff appeals from judgment on the record after the disagreement of the jury: Act of April 20, 1911, P. L. 70, 12 PS section 684. Her husband had been working with others in a tomato patch near defendant's railway in the country and along or near a road crossing the railway to give access from a near-by public road to one or more farmhouses. The weather was clear. A dog fight began on or near the farm road and was continued along that road to and on the railway at the crossing. Plaintiff's husband, not owning either of the dogs, followed to stop the fight. From some of the evidence it might be inferred that while kicking at the dogs he fell on the railroad. A witness testified that she went to decedent's aid by trying to pull him off the track; before she could do so, she saw, for the first time, defendant's train (locomotive, tender and caboose) about 150 feet away. She withdrew in safety but the man was killed.
The burden of proof was on plaintiff. She charged that her husband was lying on the track long enough for defendant's servants, in the exercise of reasonable care required in the circumstances, to have seen him and to have stopped the train before striking him. That is the fact to be established. The evidence was so contradictory and inconclusive in the sense that no verdict on her behalf could be based on it, that the learned court below rightly entered the judgment complained of. In *509 Raftery v. Pittsburgh West Va. Ry.,
The evidence is plainly insufficient to establish that plaintiff's decedent was lying helpless on the tracks long enough for defendant's engineer to have seen him and to stop the train, or that the engineer wantonly refused to apply the brakes in time. Compare Custer v. Baltimore Ohio R. R. Co.,
Judgment affirmed.