232 Pa. 351 | Pa. | 1911
Opinion by
In exceeding the space allowed by rule 26 for the statement of the question or questions involved, counsel for appellant has very narrowly escaped the suppression of his paper-book and the nonprossing of his appeal, and he makes this escape only because, in the judgment of a majority of the court, the statement would not have exceeded half a page if type of ordinary size had been used and the spacing had not been so wide. The rule as to .space is mandatory, and counsel for an appellant must
At about six o’clock on the evening of October 24, 1903, the husband of the plaintiff was instantly killed by the collision of a train of the defendant company with the team which he was driving. He was seated in a covered market wagon, drawn by two horses, and the instant they got upon the first track of the company over the York road, at Willow Grove station, the collision occurred. The first contention of the appellant to be noticed is that there was no proof of its negligence. What is charged against it is that it failed to give notice, by bell or whistle, of the approach of its train to the crossing. Three witnesses called by the plaintiff testified that no warning had been given of its approach. Their testimony was not merely that they had not heard the blast of a whistle or the ringing of a bell; it was that no such warning had been given. The first of these was waiting at the station to take a train; the second was a passenger on the colliding train, looking out of a window for friends at the station; and the third was standing at the station, looking for the arrival of the train, and all three testified positively that the first warning given of the train’s approach was the blast of the whistle an instant before the team was struck. Two of them had their attention upon the coming train, and the testimony of all three was not merely negative, amounting to a mere scintilla upon the question of the defendant’s negligence. On the contrary, it was positive testimony that what ought to have occurred had not occurred, and was negative only in the sense that all testimony as to the nonexistence of a fact may be said to be negative. In character it may have been negative; in effect it was positive, and was, therefore, sufficient for a finding by the jury that the defendant had negligently and carelessly omitted to perform its duty of giving proper notice of the approach of its train to the crossing: Winter-bottom v. P., B. & W. R. R. Co., 217 Pa. 574; Schwarz v.
The appellee did not rely upon the presumption that her husband had stopped, looked and listened for an approaching train, but undertook to prove affirmatively that he had performed that duty. Several witnesses testified that he stopped about 140 feet east of the crossing, at a point where persons driving teams were accustomed to stop, look and listen for trains coming from Philadelphia. At that point there was a view in the direction from which the train was coming of from 300 to 500 feet, but this did not continue down to the railroad. A house, shed, barber shop, fence and trees more or less obstructed the view until a point was reached 16 feet, by actual measurement, from the first rail of the track on which the train came. The great preponderance of the testimony shows that at any point within 16 feet of the railroad track there was a clear view of an approaching train of 2,290 feet. After the deceased started from the point at which he stopped — about 140 feet from the track — he did not stop again, but, seated back in his wagon, drove on until his team was struck, and the main contention of the appellant is that his death ought, under the circumstances, to be charged to his contributory negligence, because if he had stopped and looked within the space of 16 feet east of the track, he would have seen.the coming of the train. On the oral argument we were impressed by this, but our examination of all the testimony in the case has led to the conclusion that the contributory negligence of the deceased was for the jury. He did stop to look and listen for a train, and this in itself is opposed to the idea of negligence: Ely v. Pittsburg, Cincinnati, Chicago & St. Louis Railway, 158 Pa. 233; and he stopped at the place where those driv
Four of the assignments of error complain of the admission of testimony that the place where the deceased stopped was the usual and customary place of stopping to look and listen for trains of the defendant company coming from Philadelphia. No testimony could have been more competent. What the appellant complains of was not a mere expression of opinion by the witnesses that the place where the deceased stopped was a proper one and the best one from which to obtain a view of the approaching train, but was the statement of an actual fact, viz., that he had stopped where others habitually stopped for the same purpose. This was persuasive evidence that the place was the right one: Cookson v. Pitts-burg & Western Railway Company, 179 Pa. 184; but it was by no means, conclusive evidence on the point, and it was, therefore, competent for the appellant to show that the usual and customary stopping place was not the proper one and that the deceased ought to have stopped at a point nearer the track. This is what it unsuccessfully attempted to do, and the first four assignments are dismissed.
The testimony of the wife, the admission of which is complained of by the fifth and sixth assignments, shows
If counsel for appellant regarded the charge as inadequate upon the evidence as to the view which could be obtained of a coming train from a point upon the crossing, the learned trial judge gave him the opportunity to ask for fuller instructions, which were given, and in them, considered in connection with the general charge, no error is discoverable.
The assignments of error are all overruled and the judgment is affirmed.
