275 Pa. 459 | Pa. | 1923
Opinion by
This suit is the outgrowth of a crossing accident. Mahoning Street, extending through the Borough of Punxsutawney in an easterly and westerly direction, is crossed at grade and practically at right angles by the Walston branch of the defendant’s railroad, at what is known as the West End crossing. On the morning of July 6, 1920, plaintiff’s husband, Mike Jerko, with ten other men, was being conveyed easterly along this street in an autotruck, as a passenger for hire, by one George Armstrong. Five passengers were seated on each side of the truck and one sat in front1 with the driver. When Armstrong came, within twenty-six feet of the crossing he stopped the truck, looked in both directions and listened, but neither saw nor heard a locomotive or cars. There is a sharp curve in the railroad track south of the crossing and an engine approaching thereon can be seen only three hundred and thirty feet from the place where Armstrong stopped to look and listen, which was the usual and proper place for that purpose. He then started forward on low gear, at a speed of about' three miles an hour, keeping a lookout in both directions, but his attention was somewhat given t’o his truck, the steering of which was more difficult because of an electric railway track in the street. As the front wheels of the truck came to the first rail of defendant’s track, Armstrong saw a light engine rapidly approaching from the south and about one hundred feet from the crossing; seeing a collision was unavoidable he attempted to turn north and the engine struck the truck back of its front wheel, killing Jerko who was seated there. This appeal by defendant is from judgment entered on a verdict in favor of his widow for the damages thereby sustained.
Appellant’s only complaint is the refusal of the trial judge to withdraw the case from the jury, but that could not properly have been done. The crossing is over a much traveled street in a built-up section of a borough of approximately ten thousand people, and, according to
On the question of the truck driver’s contributory negligence we express no opinion, for his lack of care, if found, could not be imputed to a passenger: Wolf et ux. v. Sweeney, 270 Pa. 97; Senft v. Western Maryland Ry. Co., 246 Pa. 446. It is presumed the deceased exercised reasonable care for his own safety and the record discloses nothing which, as matter of law, rebuts this presumption. Jerko was the third passenger from the driver’s seat, facing north, and the evidence is that when the truck stopped he turned his head and looked south in the direction from which the engine came, and that it was not then in sight. The driver having stopped, looked and listened, as the law requires, would be presumed to proceed with due care, and the passenger was not bound to interfere until the contrary appeared. There is nothing to show the driver knowingly attempted to pass in front of the engine or that the deceased joined him in taking such risk. Whether Jerko saw or should have seen the approaching engine in time to warn the driver and failed to do so was for the jury. A passenger is not required to warn the driver of what the latter already knows and appreciates; to do so would tend to increase the danger: Vocca v. Penna. R. R. Co., 259 Pa. 42; Beck v. Director General of Railroads, 268 Pa. 571. The passenger must exercise reasonable prudence for Ms own safety (Dunlap v. Phila. R. T. Co.,
The assignments of error are overruled and the judgment is affirmed.
