*1 the original letter either or written mailed Board. else could How the Controller determine those than questions by verifying facts the Board’s It a fundamental own records? is sound ac- precept that original records must be ex- counting practices amined to determine the validity accuracy ac- counts. the Board stated, performs As we have basic affairs of the City function the fiscal County. to It cannot the Controller access its records and deny him the to exercise his thereby deny power statutory to fiscal affairs. duty those supervise Board man final made is that The argument once based on the mis again not lie. This is damus will to inter seeking that the Controller taken impression of its discretion. Such exercise fere the Board’s only the right Controller asks not the case. Board as he is authorized examine records remedy is the proper Mandamus to do under the law. supra. Clark Meehan, action: such compel by appellants. be paid аffirmed. Costs Judgment Pennsylvania Railroad Appellant, v. Baker, Company.
Argued Before October C. Drew, J., 1951. Ladner and Chidsey, JJ. Stearne, Jones, Bell, Buckley, Buckley, E. him Mercer V. for appellant. Pringle
John R. with him Bredin, Dalzell, McFall, appellee. for Bredin, Opinion Mr. Justice January 1952: Jones, plaintiff The as administratrix of her deceased brought Wrongful husband’s estate suit under the damages Death and Survival to Acts recover for his grade crossing allegedly in a death accident due to negligence company. of the defendant railroad The jury plaintiff, returned verdicts for the the amounts questioned. are not whereof defendant filed motions judgments ground plain- for оn the n.o.v. guilty contributory negligence decedent tiff’s was a matter of The court law. en banc sustained accordingly, judgments motions entered the and, plaintiff ap- the defendant which the took these peals.
It is conceded as it evidence here, below, carry jury sufficient case question negligence. of the dеfendant’s The sole in- quiry plaintiff’s whether decedent was contributory negligence as a matter In of law. answer- ing necessarily question, we take the evidence and all reasonable inferences therefrom most favorable plaintiff. following are the material So viewed, facts. plaintiff’s driving bakery
As the husband was delivеry grade crossing truck the River Road over *3 company’s the defendant four track railroad the village Haysville, Pittsburgh, eleven miles west of by passenger struck fourth he was track over a travelling speed per train westward a of 65 miles instantly. hour and was killed The accident occurred P.M. at 6:15 on December 1947. It was dark at thе “fairly time. The weather was there was clear”; some place air. and mist in the The smoke at the railroad, generally runs a accident, of the east-west direction parallel to more or less the and Ohio River which is approximately feet to the south of the railroad. northerly from the Road extends river in a River direc- right angles the railroad at across and then tion across “very Ohio River a Boulevard, the four-lane much highway” immediately lies travelled north parallel the railroad; to the distance and between the southerly curb of the Boulevard and the northernmost about the tracks is 28 feet rail of at the locatiоn of separation The width of the the between the they highway the railroad and diminishes extend From the south, the eastward. tracks are numbered being passenger 3 and 4: No. the eastbound 2,1, the No. 3, freight track; eastbound No. the track; the No. westbound freight track; westbound track. passenger the to steeply ascends Road River north,
Going feet the 40 for average grade railroad crossing, approximate- 1 track being of the No. immediately south steeply. more The last 10 feet rise even cent. ly per hood of an automobile, of the at which the angle Because it is elevated, from the crossing south, in the standing a man for a driver seе impossible That the crossing. road at the far side of middle of the until is leveled off situation continues vehicle east, approaching to the track No. 1. driver’s view by obstructed from the crossing south, similarly a number by elevation of road as well as rising which, a shed buildings passenger of industrial 14 feet of the at the time of stood within aсcident, rail track No. 1 and close outside) south (or From this the view to the east is further point, road. telegraph planted interfered with a series of poles a line the tracks 8 feet parallel south rail. From about 10 feet south of and southernmost to the had fairly onward a driver crossing uninter- view of the track to eаst rupted approximately and at certain feet, points along road back about 20 feet south of the clear view of tracks to the east could at times be had between various *4 To the west of obstructions. the at a crossing point 170 feet the tracks distant, curved the left so that, from a point 10 feet south оf the south rail of the No. at the track a train from crossing, the that track west on could be seen for a only distance of Further difficulty 700 feet. approach attended an from at the south the crossing nighttime because of to the east confusing background by created the lights of cars westward moving Ohio River Boule- along noises vard; heavy loud forging hammers in the steel mills directly across which were river, at operating the time of the plainly were accident, audible at the crossing.
In himself to the committing the deceased was first observed at a 5 feet point south of the south rail of the 1No. track proceeding speed a of 5 miles an He hour. continued over the at the same crossing speed; cartway was rough; passed safely over the first three tracks and was struck when fourth track. The headlight the locomotive was dim; no warning approach train’s There given. was on at the guard time a watchman who was with standing lanterns 15 feet north of the north rаil the No. 4 that across all the track, tracks and is, back toward the Ohio River Boulevard. the watch- However, man was not visible to the deceased until the latter had leveled off on the No. 1 track.
The learned court below entered the judgments for defendant, n.o.v., erroneously applying the in controvertible rule physical facts which has no in place this case. The deceased been killed having in care, a accident, presumption arises that he used due himself committing to the In v. Perry Pittsburgh Railways 608, 612-613, 55 A. 2d we said “. . . in a such as the case, where the accident in suit resulted in present, death, attends presumption plaintiff decedent exercised due care for his own As safety.” there noted, the rule and its rationale were well stated the late Maxey Chief Justice Morin Kreidt, 164 A. “When a is killed in follows, person an accident there is from the presumption arising general of the knowledge strength instinct of self- preservation and the desire to avoid pain natural the deceased at the injury oneself time of the accident was due exercising care”, approval quoted Michener Lewis, 156, 158, 170, See, 272.
418 A. Pa. 566, 570, 162 York Rys. Co., Ehrhart v.
also, that therefore, It follows, there cited. and cases before listened looked stopped, decedent plaintiff’s from nothing There the crossing. upon entеring of law that a matter it concluded as can be then the east was approaching train passenger roadway south from a point observable plain there otherwise anything Nor is plain When the the presumption. case negate tiff’s deceased to the first saw the eyewitness accident tiff’s rail 5 feet of the south he then within motion, of No. does not establish track which, manifestly, at a he had not and listened elsewhere looked stopped, Philadelphia & Rail In Bush place. Reading proper A. where way 327, 328-329, Company, a railroad upon chauffeur drove plaintiff’s said looked and we having after night, stopped, listenеd, stopped a sufficient of time length “Whether advanced inform himself of and whether he conditions, with due from that were to be caution point, questions hard by duty determined not and fa at rules positive in all but a considera applicable cases, jury .” tion of all the in the . . . See circumstances case A. Co., 309 Reading 17, 21, 162 827; аlso, Muehlhof Knepp v. Baltimore & Railroad Ohio 424, 105 636.
From the court en it opinion appears banc concluded fail- court that “The decedent either ed to look listen before the cross- entering wherein he would ing”, be or he negligence, over the “proceeded tracks after he became aware loсomotive” in which event “he was negli- of a gent risking danger obvious collision.” The first is in alternative direct disregard of the legally attendant care presumption of part of de- ceased afforded the evidence. The second an er- *6 roneous statement of the law with respect proper- to one ly committed to a multiple-track grade crossing.
The incontrovertible physical facts upon rule, the defendant is not a case as relies, applicable to such this where the looked and deceased, having stopped, listened before not entering upon the crossing, struck on the first track. The inappliсability above-mentioned rule in such circumstances was per tinently stated our present Chief Justice Muehlhof v. Reading where he said Co., supra, 21), (p. —“Plain tiff’s truck, at a rate traveling very low was-hit speed, as its rear wheel was the last rail of the second clearing and track, not entering immediately crossing, after hencе the rule contended for defendant ‘It is vain for a man to say he looked and listened, if, spite what eyes his and must have ears told him, he walked directly front of a and moving locomotive struck’ immediately cannot apply: [citing cases]. That first enunciated in rule, Carroll Penna. R. R. v. 12 W.N.C. . Co., . . 348, ‘applies only where a person enters upon railroad and is struck track, by a moving train so instantaneously as to raise a legal presumption that he did not look and and to rebut listen, any ” presumption that he had done so’ (Emphasis sup plied), citing Howard v. Baltimore & Ohio Railroad 219 Pa. Company, 68 A. 358, quoted in Waltosh v. Penna. R. R. Co., A. 372, 377, 103 55. The plain intendment of the in the ruling Muehlhof case is that where a traveller looks and stops, listens before upon a entering grade neither crossing and, nor seeing hearing anything tracks, proceeds and is thereafter struck by a train on a track beyond the first, question of his contributory negli is for gence the jury. There are a number of other decisions of this cоurt to like effect: e.g., Thomas v. see, Pennsylvania 119 A. Railroad, 717 ac (the cident occurred on having the second track) ; Mills v. rail 494 (last 131 A. Pa. R.
Pennsylvania
R.,
Railroad
Pennsylvania
v.
Welsh
the second track);
Harris
track);
95 (fifth
313 Pa. 87, 169
Company,
A. 337 (second
The deceased was,
Thomas
crossing:
entering upon
care after
continuing
his
It was
suрra.
Pennsylvania Railroad,
Kolich v.
crossing:
to look
to listen while
both
duty
A. 705.
463, 467, 154
Monongahela Railway Co.,
reasonable
in the exercise of
once
having
stopped
But,
not
he was
care before entering
*7
or between
stop
a
on
again
as matter of
bound,
law,
Director
In
v.
Murtagh
the tracks to look and listen.
it
A.
112
436,
Railrоads,
290, 292,
General of
“.
held
. in no case has it been
was said
.
[the
must
and listen
the tracks or
look
traveller]
crossing:
[citing]
them while in the act
between
of
Had the stopрed deceased in the instant case aware of of upon becoming approach crossing, westbound train track he could not passenger 4,No.. known but he have what would be struck an east train bound which could have borne upon down -him sight from out of to the westward within five or six It seconds. will be recalled that, entering he had a view to the west of 700 only feet. he Perhaps thought he continuing could across, clear the westbound oncoming which he almost train, did. if he But, even exercised bad in the face judgment of the evident and imminent he cannot be peril, deemed of guilty contributory negligence as a matter law. of Knepp v. Baltimore & Ohio Railroad Company, supra. Kephart this court Weiss What Mr. Justice said for Railways Pittsburgh Co., 539, 543, say has cannot peculiar significance here, —“We of decedent was guilty contributory negligence; a matter for It he in a jury. was is clear was posi tion of .... of danger extreme The situation peril after arose cоmmitted to the His acts must from the cir regard with be negligence judged one cumstances as then In his they appeared. position not to exercise the or even an required highest of it ordinary degree judgment; judgment arising or care under the peril circumstances.” as we Or, Pittsburgh said Zurcher v. Railways 2d Pa. 44 A. respect to one in а 212, 216, position was he responsible as a matter peril, —“Nor of law of his merely because errors possible mistakes or. himself from trying extricate position danger he had not created: see Altomari v. Kruger, 188 A. cases re 238-239, there Whether the plaintiff viewed. negligence upon the care he depended exеrcised in the circumstan ces. Under the perilous varying here conditions, shown, only may a jury competently apply the required standards of care determined by it on the basis of the *8 conduct expected of a reasonably prudent person in circumstances such as those which attended the plain tiff to the collision.” prior are judgments reversed with directions that be for entered
judgments plaintiff on the verdicts. Opinion Dissenting Mr. Justice Allen M. Stearne: gs of
Deceased was matter negligence law, entry justified judgments defendant n. v.o. only- R. was Robert Martin, witness,
Plaintiff’s
He was
fatal accident.
distressing
to this
eye witness
lived in
formerly
had
at
factory nearby;
employed
this
been a watchman
and had also
neighborhood
he
34a et
that
seq.)
testified (p.
The witness
truck at between
bread
driving
saw deceased
“Q.
. . . the truck
that
(69a)
10 miles an
hour;
number
across
crossing
continued
up
num-
finally
2 track . . . and was
track and number
Q.
right.
A. That’s
And
ber 4 track when it was struck?
did
time
the truck it never
you
stopped,
all the
saw
that
sir.” The witness also testified (41a)
it?
No,
feet from the first rail he
the truck
5 to 10
when
“holler” and
crossing
heard the railroad
watchman
100 to 200
coming approximately
saw the train
(70a)
that he
watch-
crossing
feet from the
saw
crossing;
immediately
No. 4
just
track;
man
north of
(71a)
after the accident he observed that
the watchmаn had
lanterns
his hands.
two
accident
lighted
Before
the witness had not observed the
because
lanterns
(72a)
after the
called to deceased and the
watchman
witness
the train
he “fastened
coming
my eyes
saw
on the truck
if it
...
I
stop.
kept my
to see
would
eyes
truck
happened.”
until
the accident
The majority oрinion
“Perhaps
states
[deceased]
he
the on-
thought
continuing
could clear
across,
which he
westbound
almost did.” This
coming
train,
it is
assumption
was based
true,
statement,
on the first
deceased was
eastbound track before
the oncoming
observed
westbound train. But
testimony
plaintiff’s
uncontradicted
witness Martin
the truck
5 to 10 feеt from
was that
the first east-
bound rail when
watchman
and without
called,
deceased continued across the tracks.
stopping
look and listen
Failure to
before
contributory
negligence
railroad track constitutes
*9
matter of law: Valera v.
Reading Company,
and cases therein
For I these reasons dissent and would affirm the judgments of the court below.
Mr. Bell Justice joins in this dissent. Company United States Allegheny Steel Coun- ty, Appellant.