131 A. 260 | Pa. | 1925
This suit is the result of a grade crossing accident. Defendant's double track railway extends through the borough of Kittanning in a general northerly and southerly direction and is crossed at grade by a public highway known as McKean Street. The latter approaches the crossing from the west on a steep up grade, at the foot of which is a level space where travelers on the highway usually stop to look and listen for approaching trains. The plaintiff, Margreta Loughrey, was seriously and permanently injured as the result of a northbound passenger train colliding at this crossing with an east-bound Ford touring car in which she was a guest. The jury found for the plaintiff and, on this appeal by defendant, we must assume the facts as the former's evidence tended to establish them, namely, that it was a very dangerous grade crossing, not protected by gates or watchman, that the train approached at the speed of thirty-five miles an hour without adequate warning by bell or whistle, and was moving north on the southbound track, what is known as "single lining." There was some conflict in the evidence as to speed and much as to signals, yet, as to both, plaintiff's evidence was ample to take the case to the jury (see Mellon v. Lehigh Valley R. R. Co.,
Appellant's main contention is on the question of contributory negligence. The car in which plaintiff was riding was owned and driven by one Henry Campbell, who came along McKean Street at about fifteen miles an hour and drove to the place of accident without stopping to look and listen; so, manifestly, contributory negligence would defeat an action by him. Furthermore, *270
plaintiff, who sat in the front seat, was familiar with the place and made no protest, would ordinarily be guilty of contributory negligence (Martin v. Penna. R. R. Co.,
Plaintiff was a married woman, but had been separated from her husband and had supported herself for five years when this suit was brought, to which he was not joined as a party. Her statement of claim (no affidavit of defense being filed) sets out, inter alia, the marriage and desertion, and at the trial these allegations were supported by uncontradicted testimony. Defendant made no objection to the sufficiency of the proof of desertion nor requested that it be submitted to the jury, and, until after verdict, made no challenge of plaintiff's right to sue without the joinder of her husband; the objection then came too late. The failure to join a party as plaintiff cannot be taken advantage of after a trial on the merits. Moreover, except as to matters basic or fundamental, a trial judge will not be reversed for failure to instruct the jury on a question not called to his attention at the trial: Schwartz v. Caplan,
Furthermore, the defendant might have entered a rule on the husband to join in the wife's suit, as the second section of the above cited act provides; in any event it was not injured by the nonjoinder of the husband, as the damages recovered were not greater than could have been in a joint action, and the judgment is a bar to any claim by the husband. This follows because the first section of the act, providing that the rights of both husband and wife shall be redressed in only one suit, is mandatory and but one can be brought: Donoghue v. Traction Co.,
The assignments of error are overruled and the judgment is affirmed.