223 Pa. 1 | Pa. | 1909
Opinion by
In the opinion of the court overruling the motion of the defendant for judgment non obstante veredicto this case is said to be a close one. On the question of the contributory negligence of the deceased it cannot be so regarded. From the testimony of plaintiff’s witnesses but one inference is possible as to his conduct in approaching the crossing, and it was, therefore, for the court to so declare. Failure to discharge this duty resulted in a finding by the jury which is not a true one.
Charles McKahan, the husband of appellee, drove into the borough of Claysville with a double team on October 17, 1906, and, after remaining there a short time, started for his home by way of Bell avenue. Driving along this route it was necessary for him to pass over the track of the appellant company, running east and west and crossing the avenue at right angles and at grade. In attempting to cross the track his team was struck by a locomotive drawing a caboose and he and the horses were killed. The crossing is an admittedly dangerous one, and its danger was well known to the deceased, who had constantly crossed it for many years. The danger in going south over it is due to the character of the approach from the north — the direction from which the deceased came.' The locomotive was coming from the west, and the view of the track in that direction is obstructed for quite a distance north of the defendant’s roadbed. At a point about 225 feet north of the crossing McKahan stopped. The railroad track could be seen there looking to the east, but not to the west, though the smokestack of an engine approaching from the west could be seen. After four sections of a train had passed from west to east the deceased started his horses, but his view of the track
The foregoing facts all appear from the testimony of plaintiff’s witnesses, and the nonsuit asked for should have been granted. Instead of that disposition of the case it was submitted to the jury on the theory of the presumption that the deceased had stopped, looked and listened at a point beyond the mill siding, where he had a view to the west for a long stretch, and, in the opinion overruling the motion for judgment for the defendant, the court regarded this presumption as strengthened by the testimony of a witness that McKahan was pulling the lines as the horses reared up. This occurred just as the engine struck them, and cannot be regarded as any evidence of the exercise of care by the deceased. The horses, when driven by him to the point of death, would naturally
But, even if the case were for a jury, the judgment would have to be reversed for the misconduct of a juror following an improper remark and a misstatement of the law by the trial judge during the argument on the motion for a nonsuit. Counsel for the defendant stated in that argument that the case was one of a railroad so constructed across a public road ' that there was no point where a traveler could stop, look and listen, and, as he avers, before he could follow this with the statement that there was such a point beyond the mill siding, he was interrupted by the court with the remark that, if that were so, “the railroad ought certainly to have had somebody there to give warning.” This was followed by applause from the audience in the court room, in which one of the jurors impaneled in the case joined by clapping his hands. A motion was promptly made by counsel for the defendant for the
Judgment reversed.