Pennsylvania Railroad v. Fortney ( 1879 )

Mr. Justice Mercur

delivered the opinion of the court,

This case presents substantially one question only: that is, whether the court erred in submitting the evidence to the jury?

If the undoubted evidence clearly showed any fact which proved David Fortney guilty of concurring negligence, the court should have said there could be no recovery : Pennsylvania Railroad Co. v. Ogier, 11 Casey 60; Catawissa Railroad Co. v. Armstrong, 2 P. F. Smith 282; Pittsburgh & Connellsville Railroad Co. v. McClurg, 6 Id. 294; McKee v. Bidwell, 24 Id. 218. If, however, the fact relied on to establish negligence was doubtful, the case was properly submitted to the jury. What, then, is the evidence relied on to convict the court of error ?

It is shown that four-tracks of the railroad of the plaintiff in error cross Wood street, in the borough of Middletown, the two 'central ones being main tracks, and the two outside, only sidings. Fortney lived south of the railroad, and was employed in a furniture manufactory, situate north of the railroad. Just before daylight he started from his house and walked along Wood street towards the place of his employment. At this crossing he was struck and.killed by the express train, passing easterly on the main south track. No witness saw it strike him, but his body was soon afterwards found, lying between this main track and the siding, about two hundred yards east of the crossing. It had evidently been carried there by the moving train.

The counsel for the plaintiff in error claims that the concurring negligence of Fortney is clearly established by the evidence of Harry Rife, a witness on the part of the defendants in error. An examination of his evidence shows he testified substantially that on the morning of the accident he stood near this crossing, and on the north side of the tracks, and by the headlight of the locomotive of the approaching westerly bound freight train he saw a man standing still, between the south main track and the siding, at this crossing ; he did not recognise the man, and was unable to describe his clothes; he first saw the man when the locomotive was about thirty-five yards east; that he noticed everything particularly, and thought the man was in a dangerous place and would be killed; that the man continued standing there until the headlight intervened between him and the witness.

In reply to the question, how long he saw him standing there, witness answered, “I. could not tell how long; about fifteen minutes or so.” That when the rear of the freight train got about five yards west of Wood street, the engine of the express train going east reached the street. Soon after this last train passed he saw the body of Fortney lying where we have stated. From the order of events, and the place where the body was found, he appears to have no doubt that Fortney was the man he saw standing between the tracks. If Fortney remained standing there for fifteen minutes, or one-fourth that time, before the freight train passed, and continued there so close to the main track as to be struck by the express train, we have no hesitation in saying that he was guilty of concurring negligence. It appears the bumping-board, to which the cow-catcher is attached, projects two and a half feet over the rail, and the cars about the same distance. Fortney was familiar with this' crossing, and at one time had been in the employ of the railroad company as a switch-tender near by. Is this position of Fortney between the tracks, for the length of time stated by Rife, proved with sufficient certainty, to be beyond reasonable controversy ? Rife testifies, he does not know how long a time the freight train occupied in passing over the thirty-five or fifty yards, after he first saw the headlight. No witness testifies to the time. Antrim swears, he supposes it was running about four or five miles an hour. If he he correct, it is manifest that Rife must be mistaken as to the interval of time which passed between his first seeing the headlight, and its crossing the street. The evidence of T. Jefferson Antrim proceeds to throw more doubt on the accuracy of Rife’s evidence. Antrim was also a witness in behalf of the defendant in error. He testifies that he was a telegraph operator, in the employ of the company, at Highspire; on the morning in question, he walked down Wood street to the crossing, for the purpose of taking the freight train west to Highspire; that on his way he passed Fortney, who was also walking towards the railroad; that he, Antrim, and the freight train, reached the crossing about the same time, or the train was there when he reached the railroad, that is, the engine was at Wood street; he walked to the crossing turned to the west, and stepped on the engine west of Wood street, and went up on that train. If Antrim be correct when he says he walked past Fortney about a square from the railroad just before the engine of the freight train reached the crossing, it is clear that the latter was not then standing between the main track and the siding. It would clearly be error for the court tp have assumed, under this conflict of evidence, that Rife was undoubtedly correct. It was urged, however, inasmuch as Rife was a witness of the defendant in error, that his statement of the length of time Fortney stood between the tracks, cannot be controverted by the party calling him.

It is true, as a general rule, a party cannot be permitted to impeach the veracity of his own witness, yet, he may disprove the facts to which his witness has testified. Therefore, no- rule nor policy of law forbade the defendants in error proving that Rife was mistaken as to the length of time Fortney stood in that dangerous position. If Antrim be correct, the jury may well have found that Fortney reached the place where he was struck, cither while the freight train was at the crossing, or at the instant of its moving therefrom. If so, in view of the fact, that the express train was behind time, and there was some evidence that it was moving at unusual speed, we cannot say, as a matter of law, Fortney was guilty of negligence in attempting to cross the tracks. Whether, under all the evidence, he was guilty of concurring negligence, was well and clearly submitted to the jury by the learned judge.

Judgment affirmed.