36 A.2d 492 | Pa. | 1944
This is an appeal from the action of the court below in entering judgment for defendant n. o. v. The plaintiff recovered a verdict of $2,500. for herself individually and $7,500. as administratrix of the estate of Donald R. MacDonald, a nine months old child who was killed on March 16, 1941, while a passenger on defendant's train. *560 The latter was derailed while running along the banks of the Ohio River near Baden, Pa. The two cases were consolidated for trial.
The plaintiff made out a prima facie case by proving that the child was killed while a passenger in the defendant's wrecked railroad car. The burden of either coming forward with defensive evidence of a convincing character or suffering an adverse verdict then shifted to the defendant. The defense offered was that the wreck which caused the derailment of the train was due exclusively to sabotage. This proof of sabotage was not controverted. Seventeen witnesses who examined the track at the place of derailment at periods varying from a few minutes after the wreck to an hour or more thereafter, testified that they found lying in the middle of the track on which the train had been running a loose rail, in a position parallel to the tracks, and with its west end immediately opposite the east end of the last rail remaining in place, and that this loose rail showed unmistakable evidence, inherent in the surrounding physical conditions, of having been deliberately removed from its former position by some agency in no way connected with the defendant company. The facts which tended to show that the rail had been deliberately misplaced were "clean and even" bolt holes, clean spike holes at the point of the rail's original location, marks of scraping along the other edge of the base of the rail as it lay on its side, "the batter on the west end", indicating that it had been partially loosened before the passage of the next preceding train, and the finding in a location directly opposite to their normal position in the track of the undamaged angle bars, spikes and bolts as well as the finding, in the same location, of the claw bar and wrench with which the loose rail had obviously been removed. Five witnesses testified to circumstances which clearly indicated that the displaced rail had been removed prior to the wreck. All this uncontradicted oral testimony if credited showed that the derailment *561 was caused by the malicious removal of a rail by unknown felons.
Appellant's contention is that "a showing of the derailment of the train on which the plaintiff and her son were riding raised a presumption of negligence" against the defendant and that the latter then had the burden of showing, "that it used due care in the operation of its train, and that it kept its roadway in proper order and repair. Whether the evidence offered by the defendant sustained its position, that it used due care, and that it properly inspected and oversaw its roadway, was a question which could be determined only as a factual one by a jury." Our decision is that while the testimony offered by the defendant was uncontradicted, the credibility of the testifiers was for the jury, and under our established procedure the entry of judgment for the defendant n. o. v. was error.
The "incontrovertible physical facts" rule, relied upon by the appellee, does not apply to this case. It is properly applied "when with the certainty of an infallible mathematical test applied to the testimony of a witness, he is found to be mistaken in a material matter, it would be a travesty upon justice to allow a jury to consider such testimony and a license to them to render a false, instead of a true finding . . .": Bornscheuer v. Traction Co.,
In all other types of civil cases we have adhered to the long prevailing rule that issues of fact where there is more than a scintilla of evidence on each side must be submitted to the jury. In Holland v. Kindregan,
The facts of the instant case bring the case within the rule thus stated in the two cases just cited and not within the rule we have laid down in grade crossing cases where the incontrovertible physical facts demonstrate plaintiff's own negligence. The "physical facts" which the railroad company relied upon in this case, such as the condition of the displaced rail and the pulled out spikes, were facts which weretestified to by witnesses. Before the jury could accept the statements made by these witnesses, they had to credit them. It is true that the jury could inspect the rail and the spikes produced by the defendant, but that these were the very physical things whose displacement by human hands caused the wreck of defendant's train depended on the truthfulness of the witnesses who vouched for them. In a "grade crossing" case, the map showing the distance for which a clear view may be had has to be made and vouched for by a witness but if the map is erroneous that fact is easily demonstrable by the opposing party; he can also ask that the tribunal view the locus of the accident and "see for itself" the physical situation.
Defendant's proof in support of its allegations of sabotage was of such a convincing character that the court easily fell into the error of entering judgment for the defendant after the jury failed to return the verdict the evidence so clearly called for. The court stated that this was one of those cases where the "proofs demonstrate that the thing that happened could not possibly have occurred through any negligence on the part of the defendant . . . and it becomes the duty of the court *564 to so declare as a matter of law." We agree that the proofs demonstrate what the court said they did, but the "demonstration" could result in a judgment for the defendant only after the demonstration had induced the jury to return a verdict for the defendant. These proofs, however conclusive, did not take away from the jury its immemorial function of returning a verdict. Courts must not lose sight of what Wigmore calls "the bipartite constitution of the common law tribunal". (Wigmore on Evidence, 3d Ed. Vol. 9, sec. 2486.)
To lay down a rule that whenever a trial court is convinced that the proofs on either side of a civil action in which there are issues of fact triable by a jury are so conclusive that the court can declare as a matter of law that the verdict must be for the party offering such proofs, would be to introduce a radical innovation in trial procedure in this Commonwealth. The error of the court below was in taking upon itself the fact finding functions of the jury.
In Doud et ux. v. Hines,
What Justice MITCHELL said in Lonzer v. Lehigh Valley R. R.Co.,
The rule that it is the duty of the court to determine whether the party upon whom the burden of proof rests has offered a sufficient quantum of proof to entitle him to go to the jury is in no way inconsistent with the rule that the court cannot instruct a jury that a party has by the oral testimony he has offered sustained the burden resting upon him and that they must find in his favor. Wigmore on Evidence (3d Ed. Vol. 9, sec. 2487, p. 278), says: "Each party must first with his evidence pass the gauntlet of the judge; . . . [who] as a part of his function in administering the law, is to keep the jury within the bounds of reasonable action. . . . In order to get to the jury on the issue, and bring into play the other burden of proof (in the sense of the risk of non-persuasion of the jury), both parties alike must first satisfy the judge that they have a quantity of evidence fit to be considered by the jury, and to form a reasonable basis for the verdict."
In this class of cases there is still some confusion as to the function of presumptions, though in Watkins v. PrudentialIns. Co.,
In this case the defendant, after plaintiff rested, came forward with evidence of a most persuasive character to explain the cause of the derailment as being one for which it was not responsible. This evidence rested largely on oral testimony and the genuineness of the physical exhibits was attested by the same kind of testimony. All this made the case one whose submission to the jury was required. The judicial remedy for the jury's capricious disregard of this evidence was a setting aside of the verdict and the granting of a new trial. Instead of doing this, the court entered that judgment for the defendant n. o. v., from which this appeal was taken. The Act of April 22, 1905, P. S. 286, gives the reviewing tribunal the right upon such appeal to "enter such judgment as shall be warranted by the evidence. . . ."
The judgments of the court below are reversed; the rules for a new trial are reinstated and made absolute.