252 Pa. 581 | Pa. | 1916
Opinion by
The plaintiff here sought to recover damages for the death of her husband, upon the theory that it resulted from the negligence of the defendant company. The husband, while driving with a companion in a covered wagon, attempted to pass over the .railroad tracks at a grade crossing at the intersection of Twenty-fifth and Morris streets, in the City of Philadelphia. Shortly after seven o’clock on the evening of May 21,1914, he was driving eastwardly upon Morris street, and was struck by an engine of a freight train running north upon Twenty-fifth street. The collision occurred upon the second track. The defendant was charged with negligence in not keeping a watchman on duty at the crossing at that time; it was also asserted that the headlight on the engine was not burning, and that no bell was rung, and no whistle blown, and that the train was running too fast. While the evidence, tending to show negligence in these respects, was not very conclusive, yet the question was submitted to the jury, and of that appellant does not complain. Its counsel does, however, strongly urge in its behalf that the contributory negligence of the deceased was so apparent, that the trial judge should for that reason have given binding instructions in favor of the defendant. The evidence clearly shows that the deceased approached the crossing, driving in a covered wagon with the curtains down, and that the distance over which he had to pass from the house line on the west, to the first rail of the first track, was forty-two feet. A witness, Clymer, who sat in the wagon seat with the deceased, testified that after passing the house line there
Arguing that this case was properly submitted to the jury, counsel for appellee cites and relies upon the decision in Schwartz v. Del., Lack. & Western R. R. Co., 211 Pa. 625, as sustaining his contention. But in that case, the evidence showed a rapidly moving passenger train, which could cover the distance from which it could be seen approaching the crossing, before one who had stopped at the proper place to look, would have time to cross the tracks in safety. Nothing of the kind was shown, or could reasonably be inferred from the testimony in this case. There was no evidence tending to support the theory that this was a rapidly moving train which was not in view from the point some twenty to twenty-five feet east of the house line, where the wagon should have been stopped to give its occupants a clear view of the tracks from the direction in which the train came. On the contrary, the very short distance, probably less than twenty-five feet, which the horse travelled from that point, until it collided with the engine of the freight train, showed conclusively that the engine must have been in plain sight during those few seconds of advance, and there could have been no reasonable excuse for not seeing it, until, as Mr. Clymer, the principal witness for plaintiff, said, the engine was on top of them, and was only five or six feet away.
There was no room in this case for the application of the doctrine that the deceased, having lost his life, must be presumed to have exercised due care; this for the
The assignments of error are sustained, the judgment is reversed, and is here entered for the defendant.