Becker v. Pennsylvania Railroad

10 Pa. Super. 19 | Pa. Super. Ct. | 1899

Opnnxxsr by

Orlady, J.,

This case was properly described by the learned trial judge in the first sentence of the charge to the jury, viz: “ The case that you have before you to decide is one which raises many questions of fact, and it is one about which you will have difficulty in reaching a conclusion.” The defendant contends that, under the circumstances disclosed by all the evidence in the case, the plaintiff was guilty of contributory negligence in driving upon the crossing, and that the court should have directed the jury to return a verdict in its favor.

To warrant such a direction there must be no doubt or uncertainty about the facts attending the accident in order to justify the courts in treating the question of contributory negligence as one of law: Davidson v. Railway Co., 171 Pa. 522. In Ely v. Railway, 158 Pa. 233, the legal duty.of persons driving over a grade crossing is defined in clear and expressive language, and is repeated in Gray v. Railroad, 172 Pa. 383, viz: “ The cases beginning with Railroad v. Heileman, 49 Pa. 60, and Railroad v. Beale, 73 Pa. 504, have established not only the rule that the traveler about to cross a railroad track must stop, look, and listen, as an absolute and unbending rule of law founded in public policy for the protection of passengers in railroad trains as much as for travelers on the common highways, but also that such stopping, looking, and listening must not be merely nominal and perfunctory, but substantial, careful, and adopted in good faitb for the accomplishment of the end in view. The traveler must stop and look where he can see, and he will not be allowed to say that he did so, when the circumstances make it plain that the proper exercise of his senses must have shown him the danger.” The rule of law is clear and definite, and must be followed. When one is struck by a moving train which was plainly visible from the point he occupied when it became his duty to stop, look, and listen, must be conclusively presumed to have disregarded that rule of law and common prudence, and to have gone negligently into an obvious danger: Myers v. B. & O. R. R. Co., 150 Pa. 386. To apply this rule to the cases as they are presented with their varying environments is often difficult, and where there is a 'doubt raised by the evidence as to the necessary facts, or the inferences to be drawn from them, the case • is for the jury and not for the court. This plaintiff testified that in attempting to pass over this grade crossing, which was over a three track railroad, he came to a full stop when the horse’s head was six or seven feet from the first track, and then leaned forward, looked in both directions along the line of the railroad, and did not see nor hear any approaching engine or train; he then sat back in his wagon and started to cross at a faster gait than he had been driving, and when he had nearly cleared the crossing the rear part of his wagon was struck by a shifting engine which was running with the tank end towards him.

The speed of the train; the use of appropriate signals; the view of the track being obstructed by trees, vines, and a train, which was standing on another track a short distance from the crossing; the place he selected so as to see and hear; and the subsequent removal of objects, alleged to have interfered with a fair view of the tracks, were each fully investigated and each thoroughly pressed and disputed. The plaintiff’s testimony, if believed, made out a case clear of contributory negligence, and the fact that it was to some extent impaired by one of his own witnesses would not justify the court in ignoring it altogether.

The decree of contradiction must be such as to make it mani fest that the plaintiff is wilfully misstating the facts, or that he is entirely mistaken in his. recollection of them, or, as was said in Kohler v. Railroad Co., 135 Pa. 357, “If, on the whole evidence in behalf of the plaintiff, his own testimony is overthrown by that of his own witnesses, in such number and weight that the court could not support a verdict in his favor, then it would become the duty of the court to direct a nonsuit or a verdict. But such a ease should be clear and without doubt.” This plaintiff had a right to cross, and he had almost passed over in safety; he had complied with the mandate to stop, look, and listen; he was struck as he was leaving, not approaching, the crossing; and his cause is materially aided by the defendant’s witnesses. The fair analysis of that side of the case tends to show that the conductor did not see him “ until the engine came against the wagon; ” the engineer did not see him until notified by the fireman that they were “ pretty near the road crossing, a few feet from it; ” the fireman could not see owing to the tank and the coal upon it, and when within ten feet of the crossing he “ looked out and hallooed to the engineer to stop immediately; ” the division engineer “ thought the plaintiff could have seen as well from where he did stop as he probably could from anywhere else.” Although it was clear daylight and the track a straight one, the persons who controlled the engine did not notice the traveler until they were within a few feet of the crossing. The facts were contested, the evidence was conflicting, and the inferences to be drawn were not at all one-sided. The case was rightly submitted to the jury in a clear and adequate charge which contained most careful instructions as to the law.

The judgment is affirmed.