212 Pa. 409 | Pa. | 1905
Opinion bt
The plaintiff in her statement of claim charged the defendant company with negligence in running the train which caused the accident, at an unusual time, and excessive rate of speed, and without giving due warning of its approach to the crossing. The appellee cannot be held liable in damages unless it affirmatively appears from the evidence that there was negligence in some or all of these respects. What does the evidence disclose?
The only question left for us to consider in reference to the alleged negligence of the defendant is whether through its employees it failed to give due warning of the approach of the train to the crossing. The appellee contends that it performed its duty in this respect by providing headlights, for its engines, by ringing the bell and blowing the whistle at the proper places before reaching the crossing where the accident occurred. The appellant contends that these signals were not ■given. There is no serious dispute about the headlights. The evidence shows that they were lighted and in their proper places. The appellant undertook to show that the whistle was not blown nor the bell rung. Nine witnesses testified that they did not hear the bell ring nor the whistle blow. The testimony of all of these witnesses was negative in character, and cannot prevail against the positive and conclusive testimony of the appellee, which clearly showed these duties to have been performed. This case comes under the rule stated by Mr. Justice Paxson in Urias v. Pennsylvania Railroad Company, 152 Pa. 326, wherein it is said : “ 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
While our cases have not stated the rule so broadly as the New York case cited, yet this court has frequently said that where the negative testimony amounts only to a scintilla, a jury cannot be allowed to disregard the positive and conclusive testimony which establishes-the controverted fact. The presumption is that the trainmen of a railroad company perform their duty in these respects when a train approaches a crossing: Pittsburg, etc., Railway Company v. Dunn, 56 Pa. 280. In the case at bar, in 'addition to the presumption that the trainmen performed their duty, the defendant produced fourteen witnesses who testified in the most positive terms that the signals were given at the proper places before the train reached the crossing. The engineer who blew the whistle and started the automatic ringer, the engineer of the second engine whose duty it was to listen for the signal so that if the first engineer failed or neglected to blow the whistle it was his duty to do so, the man who was pulling the rope that rang the bell, the man sitting in the cab and on whose shoulder the bell rope rubbed every time it was pulled, and ten other witnesses whose duty it was to watch for these signals, all testified in positive terms that these signals were given. Of the nine witnesses produced by the plaintiff and who testified that they did not hear the signals, one was shut up in a water tank, another in a boiler house, another in a dwelling house near the switch about 2,200 feet from the whistling post shut off by an, intervening hill, another was in an engine house, another in a caboose of the freight train nearly half a mile away, another stood near the water tank close to the passing freight train, and none of them had any duty to perform which called their attention to the signals. The night
In Lonzer v. Lehigh Valley Railroad Co., 196 Pa. 610, this court said: “ The verdict should have been set aside as in direct disregard of the evidence, and where that is the case, the court may refuse to submit it at all and direct a verdict accordingly.” Under these circumstances the learned court below was justified in refusing to submit the question to the jury and in saying that the plaintiff had failed to establish the negligence complained of. This view of the case being conclusive of the questions involved in this controversy, it is unnecessary to discuss the alleged contributory negligence of the appellant.
Judgment affirmed.