62 A.2d 760 | Pa. | 1948
Ollie Friedrich, appellee, instituted this action in trespass against the Baltimore Ohio Railroad Company, appellant, and Harvey Stickler, to recover damages *517 for injuries sustained by him while a passenger in the automobile of Harvey Stickler, when the automobile was struck by one of appellant's engines traveling at an excessive rate of speed and without having given warning of its approach. Atlantic Pacific Tea Company, employer of appellee, and Harvey Stickler, was brought upon the record as an additional defendant. At the trial of the case appellant's motion for a compulsory nonsuit was overruled and its point for binding instructions in its favor was refused. The jury returned a verdict in favor of appellee and against appellant alone. This appeal is from the refusal of appellant's motion for judgmentnon obstante veredicto and for a new trial, and the entry of final judgment against it.
Ollie Friedrich, appellee, and Harvey Stickler were employed by Atlantic Pacific Tea Company as carpenters. On September 30, 1946, about 7:00 A.M. they were going toward Clarion, Pennsylvania, in Stickler's automobile. In Clarion they were to alter one of the Atlantic and Pacific stores. Stickler had driven to appellee's home in Aetna. Both men were occupying the front seat of Stickler's car and the latter was driving. They proceeded along Mt. Royal Road which runs in a north and south direction and crosses the double tracks of appellant railroad at a 30-degree angle. The width of the crossing between the first rail on the eastbound track and the farthest rail on the westbound track is 17 feet 9 inches. Five hundred feet to the east of the crossing the railroad track curves northeasterly.
The streets were dry and visibility was good. The Stickler car stopped at the crossing about five feet from the tracks. Both men observed that no train was in sight. Friedrich, in answer to an inquiry by Stickler, replied it was all right to proceed. Stickler thereupon proceeded in low gear and not in excess of 5 miles per hour because the crossing was very rough. When the front end of the car was on the first rail of the eastbound track, appellee looked to his left, saw nothing, then *518 turned around and looked to the right. When the front end of the car was near the southern rail of the westbound track, appellee observed an engine coming around the curve 500 feet distant. He immediately shouted to Stickler, "Harvey, here comes a train." Stickler turned his head toward the direction of the train but did not increase the speed of his car. No warning whistle was sounded nor any signal given by appellant. The train continued to approach the crossing at an estimated speed of 50 to 60 miles per hour.
Friedrich continued to observe the approaching engine from the moment it was first seen by him until it struck the rear of the car. He could not get out of the car without stepping in front of the oncoming engine. The car had almost crossed the second north rail on the westbound track when it was struck. As a result of the impact, appellee sustained the injuries for which suit was brought.
Appellant contends that (1) it was not negligent, but, if it were, the asserted negligence was not the proximate cause of the accident; (2) appellee having actively aided in controlling the automobile was guilty of contributory negligence as a matter of law in failing to act for his own safety; and, (3) the trial judge committed fundamental error in his charge as regards (a) appellant's negligence, and (b) liability over in favor of Atlantic Pacific Tea Company and against Stickler in the event of a verdict against Atlantic Pacific Tea Company.
Appellant argues that appellee failed to establish that the engineer was negligent. It contends that evidence of speed alone does not establish negligence, that the failure of the engineer to signal the approach of appellant's engine was immaterial, since appellee had sighted the engine as it rounded the curve, and, that the failure of appellee and Stickler to increase speed and safely cross the tracks rather than the speed of the engine was the proximate cause of the accident. This *519
contention cannot be sustained. All of the cases relied upon by appellant where this Court held that there was no negligence concerned speed alone. See Solomon v. Lehigh Valley RailroadCompany,
Contributory negligence of a guest will not be declared as a matter of law unless in the face of known or obvious danger he has exhibited disregard for his own safety and made no effort to control the operation of the vehicle: Kilpatrick v.Philadelphia Transit Co.,
Friedrich was aware of the railroad crossing and of the potential dangers incident thereto. He was familiar with the crossing in question. He was, therefore, charged with a duty to stop, look and listen, and to continue to look and listen, constantly exercising the reasonable care until the vehicle in which he was riding had passed safely over the tracks:Burkman v. Anderson,
The evidence when viewed most favorably to appellee and all evidence to the contrary rejected (Kissell v. Motor Age TransitLines, Inc.,
Whether, under the circumstances, appellee did what a reasonably prudent person should have done for his own safety, was a question for the jury. It has found that further action on his part in the way of further advice to Stickler or remonstrance at the failure to increase *521
the speed of the vehicle was not required of a reasonably prudent person. This finding cannot be held arbitrary or capricious. Especially is this true where, as here, Friedrich had already informed the driver of the approaching engine and had reason to believe, not only that Stickler heard his warning and would act pursuant thereto, but that the car would safely cross the remaining distance ahead of the engine. "Frequent admonitions and constant interference with the driver might increase rather than diminish the danger: Davis v. American Ice Co.,
The portions of the charge of the trial judge assigned as error have been carefully considered and reveal no prejudicial error.
Judgment affirmed.