# Zotter v. Lehigh Talley R. R.

> Supreme Court of Pennsylvania · March 10, 1924 · 280 Pa. 14

URL: https://www.frixlaw.com/law-library/cases/6256343

## Case

- **Full name:** Zotter v. Lehigh Talley R. R.
- **Court:** Supreme Court of Pennsylvania
- **Decided:** March 10, 1924
- **Citations:** 280 Pa. 14; 124 A. 284
- **Precedential status:** Published
- **Opinion:** Concurrence by Simpson
- **Judges:** Frazer, Sadler, Schaeffer, Schaffer, Simpson, Walling
- **Cited by:** 37 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6256343

## Opinion text

Concurring Opinion by
Mr. Justice Simpson:
In my judgment the majority opinion satisfactorily establishes the fact that plaintiff did not produce sufficient evidence to carry the burden of proving defendant’s. negligence, and hence the judgment should be affirmed on this ground. But I wholly dissent from that opinion in so far as it finds, as a matter of law, that plaintiff’s husband was guilty of contributory - negligence. His death, and consequent inability to testify regarding his conduct at the time of the accident, raises a presumption that he exercised due care; and, presumptively, therefore, (1) he stopped, looked and listened before he proceeded to cross the tracks; (2) the place he stopped was a proper one; and (3) at that time he could neither see nor hear anything which would lead a prudent man to believe a train was approaching the crossing. Testimony that if the track was clear he could have seen the approaching train when it was 1,609 feet away, does not, as a matter of law, overcome the presumption, because (1) this is an affirmative defense, the burden of proving it being on defendant; and (2) the only evidence to that effect being oral, and produced by defendant, was for the jury’s consideration.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6256343. Public record. Not legal advice.