257 Pa. 344 | Pa. | 1917
Opinion by
The plaintiff was struck by an engine of the defendant on November 29,1913,' about five o’clock in the afternoon, at what the jury found was a permissible crossing in the City of Coatesville. For the injuries sustained he recovered a verdict, the jury having found that the defendant had negligently operated its engine at the point where he was hurt, and that he had exercised" due care in attempting to cross the track. On this appeal from the judgment on the verdict the contention of the appellant is that its motion for a nonsuit ought to have prevailed, or a verdict should have been directed in its favor, as no negligence on its part had been shown, and the contributory negligence of the plaintiff was SO' clear that the trial judge should have declared 'it to be a bar to his right to recover.
Alongside the track on which the plaintiff was struck there are two sidings. After crossing over the first he stepped on the second and looked up and down the main track. It was dark, but lights were burning, and the plaintiff testified he could see a distance of one hundred and sixty feet in the direction from which the engine was coming. "-He stated distinctly that there was nothing to obstruct his view down the track for that distance. According to the testimony of witnesses called by the defendant the distance of the. unobstructed view, from actual measurements on the ground, was much greater. With the unobstructed view of at least one hundred and sixty feet before him, the plaintiff started toward the third or main track, and the instant he put his foot on the first rail the engine ran over it. He testified that from the time he started from the siding or second track he kept on looking and listening, but neither heard nor saw the approaching engine. On the testimony which he submitted as to its speed.and the failure to give notice of its approach, by bell or .whistle, it may be conceded that the question of the defendant’s negligence was for the jury, but, as the plaintiff was bound not only to listen
Under Carroll v. Penna. R. R. Co., 12 W. N. C. 348, and the long line of cases following it down to Stoker v. Philadelphia & Reading Ry. Co., 254 Pa. 494, it was the clear duty of the court below to enter judgment for the defendant non obstante veredicto.
The fourth assignment of error is sustained and judgment is here entered for the defendant.