236 Pa. 447 | Pa. | 1912
On the argument of this appeal the learned counsel for the appellant announced the abandonment of the first and second assignments of error, complaining of the charge of the court; and the only question that remained for determination was whether the jury should have been permitted to pass upon the defendant’s liability. That its negligence was a question for them seems to be conceded, but it is insisted that a verdict should have been directed for the defendant, in view of the contributory negligence of the plaintiff. The inferences to be drawn from the facts upon which it relies as establishing the plaintiff’s negligence are by no means free from doubt, and the court could not, therefore, have pronounced him guilty of contributory negligence. His testimony, corroborated by his companion in the buggy, was that, as they approached the railroad crossing about 6.45 P. M., on March 11,1909, he stopped, looked and listened at the place where it was usual to stop and look for approaching trains; that he saw no train approaching and did not hear one coming; that he then proceeded, continuing to look and listen, and did not see the train which collided with his team until it was right upon him. Even though, from a point twenty-six or twenty-seven feet from the track on which the appellee’s team was struck, there was an unobstructed view for four squares or more in the direction from which the train was coming, which continued until the track was reached, it is to be remembered that it was no longer daylight; that the train which struck the appellee was being pushed by an engine and was made up of an open car in front with a box car in the
