154 A. 714 | Pa. | 1931
In this action plaintiff is seeking recovery of damages for the death of her husband, who was struck by one of the defendant's trains while he was standing on the rail of one of its tracks, engaged in inspecting repair work on a bridge belonging to the City of Pittsburgh which spanned the railroad. In the court below plaintiff obtained a verdict and judgment. Defendant has appealed.
The work was being done by a contractor engaged by the city. The latter employed the deceased as a bridge inspector. The bridge crosses the four main tracks of defendant entering Pittsburgh. Over them a great volume of traffic moves requiring the frequent passage of trains. The railroad company had three men stationed *384 along its tracks to give warning of their approach. One of them was stationed about 65 feet from the bridge under which the deceased was standing and to the west along the westbound track, another at a bridge 553 1/2 feet distant and the third at still another bridge 700 to 800 feet to the east of where the deceased was. The general direction of the railroad tracks is east and west. The deceased when struck was standing on the southerly rail of the south track beneath the bridge looking up at the work being performed, which consisted of injecting a mixture called gunite into the cracks and crevices of the bridge by air pressure. The air compressors made much noise in their operation and were located on a street which ran parallel with the tracks and but a short distance south of them. The workmen making the repairs stood upon a movable staging underneath the bridge.
The accident occurred about 8:30 A. M. The train, consisting of eight or nine passenger coaches, was running at a speed variously estimated at from 18 to 35 miles an hour on the south track, the engine at the rear end. A brakeman was stationed on the front platform, where he operated a whistle to give warning of the train's approach. The circumstances indicate that the deceased did not hear the whistle, although others in his vicinity, on the opposite side of the tracks, did. In addition to the whistle on the train, the employee of the railroad stationed near the bridge on the westbound track had a large whistle attached to an air hose which was used to warn those on the tracks of the approach of trains. It was also blown to warn the deceased of the approach of the one in question, which was seen coming toward him by the railroad's employee who was standing nearest to him when it was more than 525 feet away. The men who were on the opposite side of the railroad could not get to the deceased to give him greater warning because of the approach of another train between them and him which passed after the train which had *385 struck the deceased stopped. The testimony shows that the deceased could have seen the train when it was more than 550 feet away from him. It stopped after striking him in from two to five car lengths.
The court below, following the jury's verdict, ruled the case in plaintiff's favor on the authority of Van Zandt v. Phila., B. W. R. R. Co.,
Furthermore, there was no occasion for the deceased to stand where he did on the rail of the track. He could have stood elsewhere. When he decided to occupy the place which he selected, he was bound to know that it was one of peril to him and to safeguard himself by observation. A turn of his head, taking but an instant of time, would enable his eyes to sweep the track in both directions to see whether there was any oncoming train. The one that struck him he could have observed from the time it was 553 feet away from him. He could not put himself in peril by standing on the rail and making no observations to guard against the imminent danger from moving trains on the track and cast the blame for his inattention on the railroad company. He was at all times within a step of safety. The recent case of Kilgallen v. P. R. T. Co.,
The judgment is reversed and is here entered for defendant.