10 A.2d 891 | Pa. Super. Ct. | 1939
Argued October 11, 1939. In these two actions in trespass to recover damages for personal injuries, the plaintiffs were guest passengers in a truck driven by the owner when the truck collided with a freight train standing on a public crossing. The facts in the two cases are identical and the cases were tried by one jury. We will therefore dispose of the *467 appeals in one opinion. At the conclusion of plaintiffs' testimony the trial judge entered compulsory nonsuits which the court subsequently refused to remove. We are of the opinion that nonsuits should not have been granted.
We will refer to the testimony in a light most favorable to plaintiffs, as we are required to do in consideration of a motion to take off a nonsuit. The truck in which the plaintiffs were riding was being driven by the owner on Oregon Avenue, in Philadelphia, at about 3 A.M. on September 9, 1934. The night was dark, it had been raining, there was a very heavy fog, and there was so much moisture in the air that the guests could see, from where they were sitting, very little if anything, due to the condition of the windshield in front of them. The car was equipped with one windshield wiper located in front of the driver and even at that location visibility, with the assistance of driving lights, was limited to 25 or 30 feet. The visibility was so poor that a witness who crossed the street within a quarter of a block of a freight train crossing the street had to depend on hearing to account for movements of the train, and he could not see a standing automobile until he came close to it.
Oregon Avenue, 84 feet in width, is crossed at right angles by Swanson Street upon which defendant maintained two tracks. Neither of the plaintiffs had ever been in that vicinity and they had no previous knowledge of the existence of a railroad crossing at that point. Blaskey testified that the truck was moving at a rate of about 20 or 25 miles an hour, but Venchik could not fix its speed. Suddenly the driver veered his car to the left and in an instant it collided with a freight train which was standing on the street and blocking passage, with resulting personal injuries to each of the plaintiffs. When the brakes were applied the guests could only see, by looking through the space in front of the driver, a *468 black object ahead of them. At the time the driver veered his car he was about 25 or 30 feet from the train.
Plaintiffs produced evidence tending to show that the train had been standing on the crossing for eight or ten minutes. We do not agree with the conclusion of the court below that there was not sufficient evidence to sustain a finding by a jury that the train had been blocking the crossing for that length of time. While plaintiffs' witness depended upon hearing to fix the time when the train stopped, we are satisfied that his testimony was sufficient to make the length of the stopping and continued blocking of the street a question of fact for the jury. Sight is not the sole method of perception recognized by law. This principle is recognized in the rule that one must stop, look, and listen before crossing a railroad track. "It is as much the traveler's duty to listen as to look; he is as bound to hear what is audible as to see what is visible. Because of darkness or other obstructions to view, the sense of hearing is often vital": Rhodes v. Penna. R.R. Co.,
The plaintiffs, to sustain their charge of negligence, relied in the main upon the Act of March 20, 1845, P.L. 191, § 1, as amended by Act of June 9, 1911, P.L. 726, § 1 (
As stated in Purol, Inc., v. Great East. Syst., Inc.,
The bearing which a violation of this statute has on a charge of negligence has been considered by the Supreme Court in a number of cases. In Todd v. Phila. R. Ry. Co.,
To the same effect are Phila., B. W.R.R. Co. v. Layer,
The Layer case is also directly in point, it being there said (p. 418): "Nor had the company any right to obstruct this crossing for an unreasonable time, if, by the exercise of proper care and diligence, it could be avoided; and whether the street was thus negligently and unnecessarily obstructed, was a fact bearing upon the question of the defendant's liability."
It is also suggested by appellee that the Act of 1845 was intended only to facilitate the movement of traffic and to prevent blockades causing congestion and delay (Jones v. A.T. S.F. Ry. Co.,
Considering alone, for the time being, the question of defendant's negligence we cannot avoid the conclusion that there was sufficient evidence in plaintiffs' cases to support a finding if made by the jury that defendant was negligent in blocking the highway for eight or ten minutes and that such negligence was a proximate cause of the collision with resulting injuries to plaintiffs. To reach a different conclusion is to ignore the numerous cases decided by our Supreme Court. In the cases cited by appellee from other jurisdictions there are several distinguishing circumstances. In some of them there was no statute involved making it unlawful to blockade a crossing and, where there was a statute involved, the decisions were actually predicated on the contributory negligence of the plaintiffs, a feature of the case we have not yet considered.
Were the plaintiffs guilty of such contributory negligence that the trial judge was justified in saying as a matter of law that they were negligent? These plaintiffs had no part in the control or management of the car and the negligence of the driver and owner under such circumstances may not be imputed to an invited guest who had no opportunity to control him:Kilpatrick v. Phila. Rapid Tr. Co.,
These plaintiffs had never been in that vicinity before, they had no knowledge of the existence of the crossing, *472
and the weather conditions were such that they could not see the road in front of them. They were at the time engaged in conversation and assumed that the driver would properly operate the truck, as they had a right to assume. "We will not declare a person guilty of contributory negligence as a matter of law unless the evidence of his negligence is clear and unmistakable": Schildnecht v. Follmer Tr. Co.,
"The tendency of our decisions is to hold a passenger responsible for his actual negligence in joining with the driver in testing a danger he knows exists, and not for the result of mere inaction in failing to discover dangers of which he is ignorant, but might have discovered had he been giving attention to the roadway ahead of him": Azinger v. P.R.R. Co.,
An examination of several of the cases upon which the appellee relies will show, we believe, not only that they do not support its contention but that they are in harmony with our conclusions. It has frequently been said that the presence of a train of cars on a crossing is a sufficient notice, under the facts of the particular case, that the crossing is occupied. Such notice might well be sufficient to convict the driver of a car of contributory negligence and it has been so held both by this court and by the Supreme Court in certain cases to be, in fact, sufficient. But we may not impute the negligence of the driver to guests, and the giving of such notice by the presence of the cars does not condone the negligence of the railroad company in blocking the crossing. If the railroad company, on the trial of the case, *473 is able to satisfy the jury that it had a right to occupy the crossing as it did and for the length of time it did, then the question of notice may become relevant.
In Wink v. Western Md. Ry. Co.,
In Weiner v. Reading Co.,
On the other hand, our conclusions are supported in principle by those decisions which have sustained a recovery *474
by a guest against the owner of a truck or automobile blocking a highway. In those cases, as in the present ones, the drivers were guilty of contributory negligence but the guests were allowed to recover. The opinion of Mr. Justice MAXEY in Harkinsv. Somerset Bus Co.,
We are of the opinion that the cases were not so clear that the court was justified in granting nonsuits and that the plaintiffs made out prima facie cases when they showed that the train had been occupying the crossing for eight or ten minutes. This cast upon the defendant company the burden of furnishing evidence in justification of the blocking of the crossing.
Judgment in each case is reversed with a venire facias de novo.