272 Pa. 499 | Pa. | 1922
Opinion by
This is an action to recover damages for death at a grade crossing. The trial court gave binding instructions for defendant; plaintiff appeals.
About six o’clock in the afternoon of July 4, 1918, the day being clear, plaintiff’s husband, who was a passenger for hire in an automobile truck, was killed in a collision between it and a locomotive, drawing a freight train, at a point where a public road, on which the truck was traveling, crosses at grade the tracks of the Buffalo,
An interesting question arose, as to the effect of deceased’s want of care, considering the reckless conduct of the driver; but that we are not called on to determine, because no negligence on defendant’s part was shown.
The negligence charged in the statement, and attempted to be substantiated on the trial is, that the train was run at a dangerous rate of speed in approaching the grade crossing, and that there was a failure, on the part of those operating the train, to blow the whistle or sound the bell as the train approached the crossing, so as to give warning of its approach to persons on the highway, who might intend to cross the tracks.
The vital question in the case is that of warning of the approaching train. The train was running in the open country, where railroad companies may move their trains at such rate of speed as the character of their machinery and roadbed may make practicable: Rapp v. Central Railroad of Penna., 269 Pa. 266; Schwarz v. Delaware, Lackawanna & Western R. R. Co., 218 Pa. 187. Nothing as to the rate of speed of the train could safely be predicated on what was said by plaintiff’s witnesses ; they had not observed its approach, until it was almost upon them, and saw it only for the most fleeting space of time, in the wild excitement and fear, which would necessarily seize upon persons, in a truck filled with people, facing possible death or serious injury. The driver of the truck called by plaintiff said he could
As we said in the Schwarz Case (218 Pa. 187); “It is not the rate of speed that prevents a traveler from passing safely over a railroad crossing in an open country, but the failure to give notice of the approach of the train by those in charge of it, or disregard of such notice by the traveler when given......It is not the rate of speed that is the negligence of the company, but the failure to give proper notice of the approach of the train.”
The witness Drauker, sitting with his back in the direction from which the train approached, testified there were no signals given by the locomotive as it approached the crossing, but he based this statement on the fact that he did not hear them. Answering the question, “Do you know whether the whistle was blown down at the whistle post,” he replied, “I don’t know whether it was or not — I didn’t hear it.” This answer speaks for itself, so far as the legal rule regarding negative testimony is concerned, and shows that, on the critical question as to whether the whistle was blown where it was the duty to sound it, he was ignorant.
Against this negative and unsatisfying testimony, defendant produced evidence to show, by the engineer of the train, that he gave notice of the approach to the crossing by blowing the customary crossing approach signal, two long and two short blasts, at the place fixed for blowing it for the crossing in question; that the engine was provided with an automatic bell ringing device, which he turned on when he blew the whistle; that the bell commenced ringing and rang until after the train passed the crossing. The fireman, in corroboration of the engineer, as to the blowing of the whistle and ringing of the bell, testified that he shut the bell off, after the train stopped, following the accident, that he heard it ringing all the time, and that the reason why he, and not the engineer, turned the bell off was, because, when the train stopped, the engineer ran back to the
An important witness in the case, Paul Pantall, said he was coming toward the crossing from the opposite side from that on which the truck approached. He heard the train whistle as it was coming up behind him, looked out the side of his automobile, saw the train, stopped his automobile, and, after stopping, saw the truck in the road on the other side of the tracks approaching the crossing. He had the truck in view from the time he first saw it; seeing the driver change gears to make the ascent of the grade to the crossing, he screamed and halloed, and motioned to attract the attention of its occupants, but they were oblivious to his outcries. Another witness, Frank Bernardo, who lived about 300 feet from the crossing and who witnessed the accident, said he heard the train whistle for the crossing, and, at the time he heard the whistle, saw the automobile in the road approaching the tracks. Another witness, Lovejoy by name, who was waiting at the crossing to take a train going in the other direction, testified that he heard the train in question whistle, and, turning to look along the road, saw the truck in the road approaching the crossing about 180 feet distant. The witness Hazlett, whose testimony has been referred to heretofore, and who was driving in the road, behind the truck, testified that he heard the train whistle, with the truck in the road ahead of him, and, as has been stated, that he heard the bell ringing, after the train stopped. His wife, who accompanied him in the automobile, also said she heard the whistle.
In the light of this positive testimony produced by the defendant, no verdict could be permitted to stand in
The judgment is affirmed.