278 Pa. 491 | Pa. | 1924
Opinion by
On February 18,1919, between four and five o’clock in the morning, plaintiff, while driving a two-ton laundry truck along the public highway near Pittsburgh, on approaching a grade crossing over defendant’s tracks, found the safety gates down. He stopped, looked and listened and, while waiting, the gates were raised and a voice, which seemed to come from the tower, said “Go ahead.” There were four railroad tracks at the crossing. He passed over three in safety and was struck on the fourth by an express train running at the rate of fifty miles an hour. Plaintiff testified he looked in both directions before entering on the crossing and continued to look as he passed over the tracks, but did not see the train until it hit him. The case was submitted to the jury and a verdict rendered in plaintiff’s favor for $10,-627.94, which was subsequently reduced by plaintiff filing a remittitur as to all in excess of $6,000. Judgment was entered for the reduced amount and defendant appealed.
Defendant contends plaintiff; was chargeable with contributory negligence in failing to see the approaching train. It is undisputed that the track was straight for a distance of at least one-half mile and nothing but darkness obstructed a view of the approaching train. Plaintiff testified the engine was without a headlight and no warning given of its approach. It is argued, however, he was negligent in failing to see what must have been plainly visible. The excuse given for failing to observe the train was that darkness and foggy atmosphere,
We also have the further circumstance that the safety gates, which were down at the time plaintiff approached the tracks, were raised while his truck was stopped and he invited to cross. Although plaintiff was not thereby relieved from the duty to observe reasonable care, the opening of the gates constituted an intimation that the tracks were free of approaching trains and implied an invitation to plaintiff to proceed. While he was bound to use reasonable precaution for his safety in passing over the tracks, the raising of the gates was a fact for consideration of the jury in determining whether he exercised proper care under the circumstances: Messinger v. R. R., 215 Pa. 497; Guthrie v. R. R., 222 Pa. 366. It was the duty of the watchman to know conditions at the crossing and the probable time of arrival of trains and, further, his position in the tower afforded him a better opportunity for observation than was offered the traveler on the highway. The latter, consequently, had the right to assume no immediate danger existed and accept the invitation to cross impliedly extended by raising the gates and expressly extended by
Defendant also contended the verdict as reduced by the court below was excessive. Previous to the accident plaintiff worked as a driver of a laundry truck earning $25 a week. He lost twelve weeks’ time as a result of the injury and, owing to his physical condition subsequent to the accident, has been unable to work continuously. He was obliged to discontinue his regular vocation owing to impaired health and has since worked at various places and occupations, all of which he was obliged to give up until finally obtaining the less laborious position of night watchman at a salary considerably less than he earned at his former employment. The evidence is that since the accident he has been unable to work during a portion of each week owing to attacks of dizziness and that these spells come on generally at times when his work required extra exertion. His physician diagnosed these spells as slight attacks of epilepsy directly caused by the injury to his head and, in his opinion, the condition is of a permanent nature. Under the circumstances the verdict of $6,000 is not excessive.
The judgment is affirmed.