143 A. 192 | Pa. | 1928
Argued May 8, 1928. Kathryn C. Haskins, appellee, sued to recover damages for the death of her husband, Lynn Haskins, who was killed on the afternoon of June 12, 1926, while driving a two-seated automobile, occupied by Haskins and six other persons, over defendant company's railroad tracks on a public grade crossing near the Village of Wetmore, McKean County. The automobile was struck by an engine running light, that is without cars attached; the result of the collision being the partial demolition of the car and killing all of its occupants instantly, with the exception of one, Mike Jaros, who escaped with injuries, which confined him to a hospital for ten days. The jury returned a verdict in favor of plaintiff in the sum of $16,000. Defendant's motions for judgment n. o. v. and for a new trial were refused by the court below and judgment entered on the verdict. Defendant appealed.
The statement of claim alleges that Haskins, while driving his car, "lawfully approached the crossing" and "lawfully started to cross"; that defendant's engine was being driven at an excessive and highly dangerous rate of speed and that neither the bell on the locomotive was rung nor the whistle blown, nor that other timely signal or warning of the engine's approach was given. Defendant filed no affidavit of defense and during the trial counsel for plaintiff withdrew, as a charge of negligence, allegations of excessive speed of their engine. Appellant's assignments of error are directed against refusal by the court of the motions for judgment n. o. v. and for a new trial and the final judgment in plaintiff's favor.
Defendant contends that no negligence on its part was proved and that the injury complained of was the result *540 of failure of Haskins, the deceased husband of plaintiff, to exercise due care. The undisputed facts as we gather them from the record are as follows: On the afternoon of June 12, 1926, a clear, bright day, Lynn Haskins and six other persons, occupying a two-seated automobile, went from Coudersport to visit friends near the Village of Wetmore. On their way to their destination they drove along a public highway and near Wetmore crossed the public grade crossing over defendant company's tracks. Remaining at the home of their friend for two hours, the seven persons, with Haskins again driving, started on the return journey to Coudersport, passing over the route traversed on their way out. While attempting to drive over the crossing referred to the accident here complained of happened.
We find contradiction in portions of the evidence, but a careful examination of the whole record before us leaves in our minds no doubt that appellant's request for a reversal of the verdict and judgment of the lower court must be answered in the affirmative on the ground that plaintiff's husband was guilty of contributory negligence. As a general rule, a suitor is entitled to have his case submitted to the jury on his own interested testimony, although contradicted by disinterested witnesses; where, however, as here, the party's own testimony stands not only opposed to that of several disinterested witnesses, but is shown to be untrue by incontrovertible physical facts, the case is different. "A court cannot accept as true that which the indisputable evidence demonstrates is false": Lessing v. Reading Transit L. Co.,
Counsel for plaintiff in their printed argument rely strongly on the testimony of Mike Jaros, the sole survivor of the unfortunate accident, as furnishing the correct recital of the immediate facts connected with it, to the effect that Haskins, driver of the car, when he approached the crossing, stopping the vehicle within twelve or fifteen feet of the first outer rail, — there being two *541 tracks, four rails, to cross, — then looked to the right and left, and not hearing or seeing the approaching engine, started to drive slowly over the crossing, passed over the two rails of the first track and at the instant the car reached the other track it was struck by the engine. The testimony of Jaros on cross-examination on this phase of the case is as follows: "Q. You say you stopped 12 feet from the tracks? A. 12 or 15 feet, something like that. Q. 12 or 15 feet from the track? A. Yes, sir. Q. Mr. Haskins then looked to the right? A. To the right. Q. Looked to the right and then to the left? A. Left. Q. Did he look again to the right? A. Everybody look; I look too. Q. To the right? A. Yes. Q. Then you started across the track? Immediately you were struck? Right away you were struck? A. Yes, we started after looking once to the other side; he started the car. Q. You started to go across the track and immediately you were struck? A. Yes, sir. Q. Just two or three seconds and you were struck? A. Maybe. Q. Is that right? A. That is right. Q You mean to say that when Mr. Haskins looked the second time to the right and then started ahead, immediately you were struck? A. Looked once and then to the other side and then started. Q. Then he started right up? A. Started. Q. Instantly he was struck? A. When he started the engine I don't remember nothing but a cold wind. Q. Just a few seconds? A. Just a few seconds, then the cold wind came." And further on: "Q. That was the only time you saw Haskins looking, after the car had stopped? A. Yes, it was."
Before giving further attention to this testimony it is proper to note that it is entirely in direct contradiction to declarations made by Jaros in a written statement signed by him in the hospital on the day following the accident, in which he declared the car had not stopped as it reached the crossing. When shown this paper signed by him, at the trial, Jaros denied all knowledge of it, asserted he had not made or signed it and had *542
not talked to any persons in the hospital until three or four days after the accident. The making of the statement is not denied by appellee, but in an effort to invalidate the writing by showing that Jaros was not mentally capable at the time it was made and signed, plaintiff put on the stand a physician who attended Jaros at the hospital, the extent of whose testimony was: "I would say his mental condition was somewhat impaired, as well as his physical condition. His mind was somewhat confused." In contradiction to Jaros's claim that he was without knowledge of the statement and had talked to no persons in the hospital until three or four days after receiving injury, we have the positive testimony of the representative of defendant company and at least three other persons, one of whom was a physician who had attended Jaros when he first entered the hospital, all of whom testified they were present with Jaros in the hospital when he made the statement the day succeeding the accident, that although he appeared to be in pain, he was not in a dazed condition, that he answered the questions put to him, that after the statement was written out and read to him he suggested changes in it which were made, and that he then signed it. It is significant that Jaros himself on the stand made no pretense of being in a dazed condition when he made the statement, but simply declared he knew nothing about it, had not signed it and had not talked to persons in the hospital until three or four days after his arrival there. Doubtless Jaros was suffering pain the day after the accident when at least four people stood around and prepared the statement in accordance with the answers he gave, but we find nothing in the evidence to convince us that he was not mentally capable at that time. The extent of the consideration the jury gave to the question of the credibility of Jaros, to which the court in its charge called attention, we do not of course know. But we are convinced, from a most careful analysis of the testimony, wherein the evidence of defendant is strongly preponderant, *543
that Jaros was rational at the time the statement was written and read to him, and that he suggested changes which were made before he attached his signature to the paper; it is clear he was not telling the truth when he testified at the trial that he had talked to no one in the hospital until three or four days after he reached that institution. There is no corroborative testimony of that assertion. There is also positive testimony given by the fireman of the engine who saw from his locomotive the car coming along the highway, that when it came to the crossing it did not stop, but was driven directly upon the track and was immediately struck. Having sought to invalidate the written statement on the ground of mental incapacity at the time of its execution, plaintiff must establish such mental disability by evidence clear, precise and convincing as to the existence of the fact: Gibson v. R. R. Co.,
The testimony of Jaros, — whether or not Haskins stopped 12 or 15 feet from the track and then drove upon it, as Jaros claimed, and was struck within two or three seconds after reaching the crossing, — shows clearly that the automobile and the locomotive arrived at the crossing at practically the same time, and it is consequently clear that, if Haskins stopped and looked and listened, at that very instant the engine was so near the crossing that he could not avoid seeing or at least hearing its approach. Under these circumstances it is useless to say he did not see or hear the on-coming engine, which he must have seen had he been even reasonably attentive: Bornscheuer v. Traction Co.,
The testimony was conflicting with respect to whether signals were sounded from the engine. Several witnesses of plaintiff testified they heard neither bell nor whistle, but their evidence was plainly negative in character. It was to the effect that they did not hear warnings, and could have heard the whistle and bell had they been used. We observe quite a marked unanimity among some of them to claim there was special reason why they would have heard the warning signals, if any had been given from the engine, from the fact that they were listening for the bell and whistle of a seven o'clock train. But as the accident took place at or before 6:30 o'clock, it does not seem probable that these people should, on this particular day, without apparent reason, be especially intent upon hearing the bell and whistle of a train not due for half an hour at least. On the other hand, there was positive evidence from at least six of defendant's witnesses that they heard both bell and whistle of the engine as it approached the crossing. The clear and positive declarations of the fireman and engineer of the locomotive may not be disregarded in favor of mere negative testimony. The fireman testified warnings by bell and whistle as they approached the crossing were given twice by him and the engineer — once when they emerged from a small cut two thousand feet from the Wetmore crossing and a second time, when they were further on towards the crossing. He declared that being on the side of the locomotive from where he could see the public highway, he saw the Haskins car *546
"coming down the roadway and was about to call to the engineman to sound the whistle again, but before I said anything, he again blew the whistle. He blew it down to a point within 350 feet of the crossing. I watched the car down to a point just a few feet from the crossing. I was ringing the bell yet, had been ringing it from the time the engineer first sounded the whistle 2,000 feet from the crossing; ringing the bell continually, and when I got to a point where I saw an accident could not be avoided, I called to the engineer. I just hollered to him to 'hold her.' It was only a moment after that we struck the automobile. The automobile was fairly on the track." He further testified that when the engineer heard him call, the latter instantly applied the automatic brake, the independent brake opened the sand valves and put the engine in backward motion. He was asked: "Did you see any effort to stop or slow up the car? A. No, sir." In like positive manner the engineer testified that warnings were given by bell and whistle, as told by the fireman; he had worked on that road for twenty years and as usual on the day of the accident had given all signals where required by whistling signs. Not being on the side of the locomotive from which Haskins's car could be seen approaching the crossing, he knew nothing about the vehicle until it was struck. Four other witnesses for defendant, not interested ones, living at various distances from the railroad declared in most positive terms they heard both whistle and bell when the engine was going toward the crossing. In Urias v. P. R. R. Co.,
After giving the entire record in this case most careful examination, we are led to the conclusion that no negligence was shown on the part of defendant company and that, unfortunate and distressing as were the results of the accident, it was caused by the heedlessness and negligence of the driver and other occupants of the automobile, who could have avoided the danger by ordinary precaution and watchfulness.
The assignments of error are sustained and the judgment of the lower court is reversed. *548