261 Pa. 344 | Pa. | 1918
Opinion by
This is an action of trespass to recover for personal injuries sustained in a grade crossing accident. The Chester branch of defendant’s railway extends southerly through Philadelphia and crosses the Island Road at grade near Seventy-ninth street. It is a diagonal crossing as the road leads northwesterly. The Bell Road station building is on the southwest corner of the crossing; and the Bell Road Inn is on the north side of the Island Road about 260 feet east of the railway. • West of the inn is a coal yard surrounded by a high board fence that extends westerly to within about thirty-five feet of the railway, then turns north apparently along the right of way. Two telegraph poles stand at the comer of the fence and a few feet nearer the track is another pole on which is a stop, look and listen sign. A house stands on the southeast corner, just how near the track does not appear. At the. time in question the railroad consisted of a single track, a view of Avhich to the north could not be had, by a westbound traveler on this road, until he had passed the corner of the fence. Just before six oclock on the evening of September 29, 1915, the plaintiff, accompanied by a Mr. Baxter, drove a horse and runabout or road wagon west in this road until they came to the inn, where they made a brief stop, then reentered the wagon and,went on. Plaintiff testifies he had never been there before and was driving a strange horse ,and when within about twenty-five feet of the track he stopped, looked in each direction and listened, then drove forward continuing to look and listen and, just as the horse stepped on the track, plaintiff, for the first time, saw an engine coming from the north, about 100 feet away, when he struck the horse with the lines and it jumped forward; but the rear Avheel of the wagon was caught by the tender, as the engine was running backward; by.
Plaintiff’s evidence is strongly contradicted by that for the defense, as the latter tends to show that the train was going twenty-five to thirty miles per hour, with lights on engine and tender; that due and timely warning was given by whistle and bell; that the weather was perfectly clear and daylight yet good; and that from where plaintiff says he stopped there was a clear view to the north so an engine could be seen for thirty-four hundred feet. The last statement is supported by observations made and photographs taken just one month after the accident. There was some dispute as to how near the track it was necessary to be to clear the fence line. This depended on whether it was the distance along the road or direct to the railway, and was not of controlling importance as plaintiff concedes that the stop was after he had passed that line. The trial judge refused defendant’s request
The question of defendant’s negligence was clearly for the jury; the only real controversy is whether plaintiff was as matter of laAV guilty of contributory negligence. In our opinion he Avas not. The finding that he stopped, looked and listened, and at the proper place, is supported by ample evidence; in fact is not seriously controverted. He Avas struck as the rear wheel of the wagon was clearing the last rail and not immediately as he drove upon the crossing, hence, the rule of Carrol v. Penna. R. R. Co., 12 W. N. C. 348, that it is vain for a man to say that he looked and listened, if, in spite of what his eyes and ears must have told him, he walked directly in front of a moving locomotive and was immediately struck, while entirely sound, does not apply. See Rottmund v. Penna. R. R. Co., 225 Pa. 410; Howard v. B. & O. R. R. Co., 219 Pa. 358; Muckinhaupt v. Erie Railroad, 196 Pa. 213; Waltosh v. P. R. R., 259 Pa. 372. The traveler at th'Q crossing as he goes forward, after the stop, is required to continue to look and listen and be vigilant so long as danger is to be apprehended. That is what plaintiff testifies he did; but it is strenuously urged that had he actually done so he must have seen the oncoming train before he Avas committed to the act of crossing; that is the most serious question in the case. Plaintiff was bound to see what was plainly visible. If, as defendant’s evidence tends to show, it was light and plaintiff had a clear view of the track for'over three thousand feet and drove in front of a train that Avas coming in plain sight, then there could be no recovery. But there is a conflict in the evidence, not only as to the length of the view, but as to the daylight and the condition of the atmosphere, whether clear, hazy or foggy; also as to signals and whether there were lights on the engine or tender; as well'as to the speed of the train, which had an important bearing on the question of contributory negligence. Forty-five miles an hour is sixty-sis feet per second. An engine
The assignments of error are overruled and the judgment is affirmed.