265 Pa. 212 | Pa. | 1919
Opinion by
Plaintiff’s husband died from injuries received at a grade crossing in the City of Erie as he was returning from work shortly after 9:30 p. m., March 29,1916. He was seen a short distance from the crossing and was nest heard calling for help, by a watchman at a factory nearby, who found him lying between the tracks of defendant company and those of the New York Central railroad which run side by side at this point. Deceased, with both legs severed from the body, was lying about ten feet from defendant’s tracks and twenty-five or thirty feet beyond the crossing. No one saw the accident and direct proof that he was struck by one of the defendant’s trains is wanting. While it is conceded a train of defendant company passed this point about the time of the accident, the testimony shows that two trains passed over the
The train in question consisted of empty passenger coaches with the engine attached to the rear car and running backwards with the tender in front on which were two lights. The bell on the engine being of the type operated automatically by air pressure was ringing continually. There is also positive testimony of witnesses on the part of plaintiff and defendant that the whistle was blown within two squares from the crossing, and that the speed at which the train was running at the time was at the rate of from six to ten miles an hour. Although a derrick car stood on the siding near the crossing, at a distance of forty feet from the main track, there was a view of the track for a distance of over three hundred feet which increased as one approached the rails to a distance of two thousand feet at fifteen feet from the track. These facts are substantially undisputed and, while there is testimony of witnesses for plaintiff to the effect that they heard neither bell nor whistle, this was
The evidence as to physical conditions at the point of the accident also leads to the conclusion that deceased contributed to his injury by negligence on his part. While it is true the law presumes he performed the duty required of him to stop, look and listen, no sufficient excuse appears for his failure to observe the slowly approaching train of which he had ample view. He was familiar with the crossing and had apparently been in the habit of passing over it daily in going to and returning from his work. The speed of the train was probably not more than two or three times greater than his own when walking and the engine necessarily must have been practically at the crossing at the time he reached it. A man cannot be heard to say he looked and listened if in spite of what must have been obvious he walks directly in front of an approaching train: Carrol v. Ry., 12 W. N. C. 348; Miller v. Ry., 257 Pa. 517. Manifestly deceased either did not look and observe the approaching train, or having seen it attempted to cross ahead of it. In either case he was guilty of negligence sufficient to prevent recovery in this action.
The judgment is affirmed.