Irwin v. Pittsburgh & Lake Erie Railroad

Supreme Court of Pennsylvania

Irwin v. Pittsburgh & Lake Erie Railroad

89 A. 802, 243 Pa. 7, 1914 Pa. LEXIS 567

CourtSupreme Court of Pennsylvania

DecidedJanuary 5, 1914

DocketAppeal, No. 200

StatusPublished

This text of 89 A. 802 (Irwin v. Pittsburgh & Lake Erie Railroad) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Irwin v. Pittsburgh & Lake Erie Railroad, 89 A. 802, 243 Pa. 7, 1914 Pa. LEXIS 567 (Pa. 1914).

Pincite

Opinion

Opinion by

Mr. Justice Mestbezat,

This is an action of trespass brought by the children of Matthew S. Irwin to recover damages for the death of their father which resulted from a collision with the defendant’s passenger train at a grade crossing. Irwin, accompanied by one Mike Masso, was driving a one-horse sewing machine wagon which was struck by the defendant’s locomotive causing the death of Irwin and serious injury to Masso. We file herewith an opinion in the Masso case in which the judgment in that case is affirmed. The testimony in the two cases is practically the same, and what was said in disposing of the Masso case applies here, as the assignments raise substantially the same questions in both cases. Mike Masso was the principal witness in both cases. The controlling question here, as in the Masso case, was whether the learned court should have given binding instructions for the defendant. We are not convinced that the court committed error in refusing such instructions.

The third assignment alleges error in that part of the charge wherein the court recites part of Masso’s testimony in the present case. We cannot agree with appellant’s counsel that the learned judge misstated the testimony. He did not attempt to state it in the language of the witness, but stated in his own language substantially what the witness said. The court was fully warranted in saying Masso testified that he and Irwin stopped twice before they attempted to cross defendant’s tracks. He said that they first stopped when their horse’s head was about three or four feet from the Baltimore and Ohio tracks, and he then alighted from the buggy and looked down the middle of the tracks for [10]*10an approaching engine or train. He returned to the buggy, Irwin drove across the tracks and stopped, and he alighted again. He says that the horse was then about three or four feet from the defendant’s tranks, that he alighted “walked up past the three tracks” and looked for the engine in the middle of the track, that he looked “both sides” for a train and engine, looked and could-see nothing. The deceased was in the same buggy and presumably he did his duty and, therefore, looked and listened at both times when they stopped, and continued to look and listen when they attempted to cross the defendant’s tracks. There was no evidence to rebut the presumption that Irwin exercised the care required of him; on the contrary, Masso’s testimony strengthened it.

The contention of the appellant that the plaintiffs were improperly joined cannot be supported, in view of the fact that no objection was made to the joinder in the court below. The objection is purely technical and if relied on by the appellant as a defense should have been set up in the trial court.

Judgment affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

Opinion by

Mr. Justice Mestbezat,

This is an action of trespass brought by the children of Matthew S. Irwin to recover damages for the death of their father which resulted from a collision with the defendant’s passenger train at a grade crossing. Irwin, accompanied by one Mike Masso, was driving a one-horse sewing machine wagon which was struck by the defendant’s locomotive causing the death of Irwin and serious injury to Masso. We file herewith an opinion in the Masso case in which the judgment in that case is affirmed. The testimony in the two cases is practically the same, and what was said in disposing of the Masso case applies here, as the assignments raise substantially the same questions in both cases. Mike Masso was the principal witness in both cases. The controlling question here, as in the Masso case, was whether the learned court should have given binding instructions for the defendant. We are not convinced that the court committed error in refusing such instructions.

The third assignment alleges error in that part of the charge wherein the court recites part of Masso’s testimony in the present case. We cannot agree with appellant’s counsel that the learned judge misstated the testimony. He did not attempt to state it in the language of the witness, but stated in his own language substantially what the witness said. The court was fully warranted in saying Masso testified that he and Irwin stopped twice before they attempted to cross defendant’s tracks. He said that they first stopped when their horse’s head was about three or four feet from the Baltimore and Ohio tracks, and he then alighted from the buggy and looked down the middle of the tracks for [10]*10an approaching engine or train. He returned to the buggy, Irwin drove across the tracks and stopped, and he alighted again. He says that the horse was then about three or four feet from the defendant’s tranks, that he alighted “walked up past the three tracks” and looked for the engine in the middle of the track, that he looked “both sides” for a train and engine, looked and could-see nothing. The deceased was in the same buggy and presumably he did his duty and, therefore, looked and listened at both times when they stopped, and continued to look and listen when they attempted to cross the defendant’s tracks. There was no evidence to rebut the presumption that Irwin exercised the care required of him; on the contrary, Masso’s testimony strengthened it.

The contention of the appellant that the plaintiffs were improperly joined cannot be supported, in view of the fact that no objection was made to the joinder in the court below. The objection is purely technical and if relied on by the appellant as a defense should have been set up in the trial court.

Judgment affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

89 A. 802, 243 Pa. 7, 1914 Pa. LEXIS 567, Counsel Stack Legal Research, https://law.counselstack.com/opinion/irwin-v-pittsburgh-lake-erie-railroad-pa-1914.