Jones v. Lehigh & New England Railroad

Opinion by Mr. Justice Fell, An omnibus drawn by four horses and containing more than twenty people reached a crossing of the defendant’s road as a train approached it. A collision ensued in which eight of the passengers were killed and as many more injured. The driver exercised no care whatever to avoid danger, but as his negligence is not, as the law is now settled, to be imputed to the occupants of the vehicle (Bunting v. Hogsett, 139 Pa. 363), we have to consider only whether there is sufficient evidence of the negligence of the defendant to carry the case to the jury. Two grounds of negligence were alleged : one that the engineer did not give timely notice of the approach of the train; the other that he did not stop the train after he had seen the omnibus on the track, either because the appliances furnished for that purpose were defective, or because he failed to use them properly. In support of the first ground, the plaintiff testified that he was in a carriage an eighth of a mile back of the omnibus, and because of his solicitude for the safety of his children, who were in the omnibus, he listened for signals of the approach of the train and heard none. A witness called by him testified that the whistle was sounded six times when the engine was [84] at a point not fixed with precision as to distance, but which was at the south end of a cut, the north end of which was 570 feet from the crossing, and that from this point the bell was rung continuously until the collision took place. As the plaintiff was listening for the whistle and bell, his testimony was not of that purely negative character which is entitled to no weight when opposed to affirmative testimony: Quigley v. Delaware, etc., Canal Co., 142 Pa. 888. Nor was its effect destroyed as matter of law by the fact that it was contradicted by a witness called by him: Kohler v. Penna. Railroad Co., 135 Pa. 346. But his testimony did not show that the whistle had not been sounded at the proper distance from the crossing. What he said was exceedingly vague and contradictory, but the fair inference from it is that he listened when the omnibus was a quarter of a mile in advance of him and at the crossing. This left uncontradicted the statement of his witness that the whistle had been sounded as the engine entered the cut. The engineer saw the lead horses on the track when the engine was 570 feet from the crossing. Expert testimony was introduced to show that under ordinary conditions the train could have been stopped within 160 feet after the brakes were applied, and that they could have been applied in five or six seconds. The fireman of the engine, who was called by the plaintiff, testified that the engineer applied the brakes and sanded the track as soon as he saw the horses; that he did everything in his power to stop the train; and that the appliances were all in good order, with the possible exception of one of the pipes by which sand was conducted to the tracks, which had been clogged by dampness during the trip. It is unnecessary to consider whether the expert testimony is entitled to any weight when in conflict with the testimony of the plaintiff’s own witness, which showed conclusively that there was no negligence, as it was all based on the supposition that the train was running fifteen or twenty miles an hour when it left the cut. There was no such testimony in the case. The testimony was that it was running at this rate when it reached the crossing after every possible effort had been made to check its speed while it ran 570 feet. This made the testimony valueless as establishing a basis for an inference of negligence. The nonsuit was properly entered, and the judgment is affirmed.