162 A. 810 | Pa. | 1932
Argued May 26, 1932. The plaintiff's husband, Claude R. Ehrhart, was killed on October 3, 1929, when a Ford coupe he was driving was struck at a grade crossing on a public road by an interurban electric car of the defendant, York Railways Company. This action in trespass was brought by his widow to recover damages for his death. At the close of the case, after the jury had been charged, the trial judge granted defendant's motion for binding instructions, and a verdict was recorded for the defendant. After her motion for a new trial had been overruled, plaintiff appealed, assigning as error the action of the court in directing a verdict for defendant, in refusing *569 the motion for a new trial, and in entering judgment on the verdict.
Plaintiff's case is based on the evidence of one witness, Otto Everhart, son of the employer of the deceased. His testimony was strongly contradicted by defendant's witnesses. This, however, would not warrant the withdrawal of the case from the jury. A question of fact, even though supported by the testimony of but a single witness, cannot be withdrawn from the jury, no matter how strong the opposing proof may be: Thomas v. Penna. R. R. Co.,
Everhart testified substantially as follows: The accident occurred in the early afternoon of a clear, sunny day. He and Ehrhart, each driving an automobile, had just left his father's farm to deliver some potatoes. He was in the lead, carrying fifteen bushels, and Ehrhart was following him, carrying ten bushels. At the Burger crossing, the scene of the accident, he stopped, looked and listened, and, having seen or heard nothing to indicate the approach of a street car, crossed over. The track was visible for only about 150 feet in the direction from which the street car came, because of a sharp curve. He stopped about 150 feet beyond the crossing to wait for Ehrhart, who did not know where to deliver the goods. Looking back, he saw him stop about ten feet from the nearer rail, look in both directions, and then proceed to cross. Everhart could not see the track from his position, except at the crossing, but he listened for the whistle of an approaching car and heard none. When the front wheels of the automobile had crossed the second rail, but before its rear wheels were on the track, it was struck by defendant's car traveling at a speed of *570 forty-five miles an hour, and Ehrhart was thrown a distance of 87 feet. The street car came to a stop 255 feet from the crossing. Ehrhart was immediately taken to a hospital, but was so seriously injured that he died shortly after his arrival.
It appears from the opinion of the court below that Ehrhart's automobile was dragged on the side from which it had come until the street car stopped. As the plaintiff has not printed the testimony on this point, we, of course, accept this statement as true: Sauber v. Nouskajian,
The presumption is that a person killed at a crossing performed the duty of care imposed upon him by law (Zotter v. Lehigh Valley R. R. Co.,
The learned trial judge, however, was of opinion that giving to the evidence every implication that can be drawn favorable to the plaintiff, as must be done, in granting a motion for binding instructions, the plaintiff could not recover because the case came within the frequently affirmed rule of Carroll v. Penna. R. R. Co., 12 W. N.C. 348, that "it is vain for a man to say that he looked and listened if, in spite of what his eyes and ears must have told him, he walked in front of a moving locomotive." Accordingly, the jury was directed to return a verdict for defendant. This, we believe, was error. The facts of the instant case do not, in our opinion, warrant the application of that variation from the rule that any substantial evidence takes the case to the jury. It applies only in clear cases, where a person who has entered upon a railway track is struck so instantaneously *571
as to rebut the presumption that he performed his duty to look and listen, no other inference being honestly possible from the evidence than that he failed to do so: Howard v. B. O. R. R. Co.,
Furthermore, Ehrhart, having fully complied with his duty to have his machine under such control as to be able to guard against injury from a street car approaching the crossing at a reasonable speed and under proper control, was not bound to anticipate negligent operation of the street car (Knobeloch v. Pittsburgh, Harmony, Butler New Castle Ry. Co.,
Inasmuch as plaintiff sustained the burden upon her of making out a case free of contributory negligence as *573 a matter of law, and produced evidence which, if believed, would be sufficient to support a finding that the accident was caused solely by the negligence of defendant's motorman, the case was properly one for the jury, and the granting of defendant's motion for binding instructions was error.
The judgment is reversed with a venire facias de novo.