Kemmler v. Pennsylvania Co.

Citations

• 265 Pa. 212
• 108 A. 592
• 1919 Pa. LEXIS 527

Syllabus

<p>Negligence — Railroads—Grade crossing — “8iop, look and listen” —Death—Contributory negligence — Evidence.</p> <p>1. No damages can be recovered for the death of a pedestrian, killed at a grade crossing at night, where it appears that no one saw the accident; that deceased was familiar with the crossing; that the train which was alleged to have struck him was running backwards at the rate of ten miles an hour with the tender in front, on which were two lights; that the bell on the engine rang continually and automatically; that a whistle was blown two squares away, and that at a distance of forty feet from the track there was a view of the track for a distance of over three hundred feet which increased as one approached the rails to a distance of two thousand feet at fifteen feet from the track. Such a state of facts discloses no negligence of the defendant, but discloses contributory negligence on the part of the deceased.</p> <p>2. A man cannot be heard to say he looked and listened if, in spite of what must have been obvious, he walks directly in front of an approaching train.</p> <p>Negligence — Evidence—Burden of proof — Two or more causes— Warning — Positive and negative testimony.</p> <p>3. In a negligence case the burden of proof is on the plaintiff to show that the defendant’s negligence was the sole and proximate cause of the injury to the exclusion of other causes. It is insufficient merely to show that the injury may have been due to one or more causes, for only one of which the defendant would be responsible.</p> <p>4. Testimony of plaintiff’s witnesses that they heard neither bell nor whistle is without avail in the face of positive testimony of witnesses for plaintiff and defendant to tbe effect that tbe bell and whistle were both beard.</p>