Connerton v. President of the Delaware & Hudson Canal Co.

Opinion by Mr. Justice Williams, In an action to recover damages for an injury alleged to be due to the negligence of the defendant the evidence submitted to the jury should be such as will fairly support two conclusions of fact. First, that the defendant was guilty of the negligence charged. Second, that the plaintiff was not guilty of contributory negligence. In cases where the injury complained of results in the death of the injured person the law presumes that such person exercised the measure of care that it was his duty to exercise. The presumption is prima facie only and may be rebutted by proof of the acts of the injured person or of the circumstances surrounding the accident. In the case now before us a father sues to recover for the death of his daughter who was of full age but who still continued a mem [342] ber of his family and contributed to its support. She was killed at a railway crossing in the city of Scranton by a passing train. She was thoroughly familiar with the locality, having crossed it daily for several years. The accident occurred at a little after nine o’clock in the evening as she was returning from her daily employment to her father’s house, and the circumstances under which it occurred were fully disclosed in the evidence. The evidence to show the negligence of the defendant was sufficient to submit to the jury. It showed the crossing to be a public one, that the gates in use during the day were left open after six o’clock in the evening, that no watchman was at the crossing, and that no signal was given by bell or whistle by the approaching train. But the evidence of the plaintiff did not stop here. On the other hand it disclosed the fact that one approaching the crossing from the place of business of Kate Connerton had ample opportunity to see and hear an approaching train coming from the direction of the train which-caused the injury. At one point cars standing upon a switch obstructed the view seriously, but before these came into the line of vision at a distance of about fifty feet from the tracks the view was unobstructed for about one thousand feet. At some twenty or twenty-five feet from the tracks the obstruction was again out of the line of vision and the tracks plainly visible for one thousand feet along the whole distance to and over the crossing. If at any point after passing the obstruction she had stopped, looked and listened, the approaching train, which was very near, must have been heard and seen. It was coming with a blazing headlight straight toward the crossing. She stepped upon the track just in front of it and was instantly killed. These circumstances rebut the legal presumption that the deceased stopped, looked and listened at a proper place. They furnish ground for the belief that she did not stop, look or listen, but that in negligent disregard of her duty to herself she placed herself in a peril that she might readily have avoided. How could the plaintiff recover in the face of these proofs ? The contributory negligence appeared in the plaintiff’s ease. The evidence would not support the second finding of fact necessary to a recove^, viz: that the injured person was not guilty of contributory negligence. • For this reason the learned judge of the court below was right in withdrawing it from the jury and in [343] directing a compulsory nonsuit. Myers v. The Balt, and Ohio Railroad Company, 150 Pa. 386; Penna. Railroad Company v. Mooney, 126 Pa. 244. The facts do not seem to be in any doubt. The train was approaching. It could have been seen and heard by any one who would have looked or listened. The deceased walked rapidly into its way. She evidently did not know of its presence, and she did not know because she did not exercise the care which the law requires. The judgment is affirmed.