162 A. 827 | Pa. | 1932
Argued May 10, 1932. On December 15, 1929, at about 6:45 a. m., one Joye Oberdorf, an employee of the plaintiff, Carl Muehlhof, drove the latter's five-ton truck in a southerly direction *19 along a road in Northumberland County leading from the main highway to the Alaska Colliery. Double tracks of the defendant, Reading Company, crossed the road, at grade, in an easterly and westerly direction; upon this crossing plaintiff's truck was badly damaged in a collision with a passenger train of the defendant, and in its removal from the scene was completely demolished. Plaintiff brought this action in trespass to recover damages for the loss of the truck, and a verdict was rendered in his favor for $4,000, the full amount of his claim. Judgment was subsequently entered on the verdict, and, after the overruling of its motions for judgment n. o. v. and for a new trial, defendant appealed. Certain rulings of the trial judge, a portion of his charge to the jury, and the refusal of defendant's motions for binding instructions and for judgment n. o. v., have been assigned as error.
In reviewing the denial of a motion for judgment n. o. v., the testimony must be read in the light most advantageous to the plaintiff, all conflicts therein being resolved in his favor, and he must be given the benefit of every fact and inference of fact, pertaining to the issues involved, which may reasonably be deduced from the evidence: Mountain v. American Window Glass Co.,
Applying this rule, the verdict of the jury must be taken as having established the following facts: The accident occurred before daybreak on a dark, foggy and misty winter morning. About four feet from this grade crossing, over which he had never driven before, Oberdorf, a driver of thirteen years' experience, stopped the truck, looked up and down the tracks, and listened. Because of the atmospheric conditions, he was then able to see the railroad tracks to the west for a distance of only 150 feet, although on a clear day they were visible for a distance of 1,600 to 2,100 feet in that direction. Not seeing or hearing anything indicating the approach of *20 a train, he proceeded to negotiate the crossing in low gear, traveling at a speed of about two miles an hour. When the front wheels of his truck had reached the farther rail of the second track, he observed a light emerging out of the darkness about 300 feet away, on the railroad track, and coming toward him at a speed which he estimated at fifty miles an hour. Believing this to be the headlight of a locomotive, and that the only chance to avoid a collision lay in completing the crossing, Oberdorf continued to go forward. The engineman first saw the truck when it was on the track in front of him. The train, which was composed of an engine and two coaches, collided with plaintiff's truck, striking it at the right rear wheel, and came to a stop about 540 feet beyond the crossing. The truck was thrown from the road into a ditch along the tracks, facing in the direction from which it had come, but still upright. Later in the morning it was dragged along the tracks, admittedly by employees of the defendant, to a spot about 500 feet away from the highway. It was there found five hours later with its wheels in the air and almost totally demolished.
The only real controversy is whether plaintiff's employee was, as a matter of law, guilty of contributory negligence. In our opinion he was not. Oberdorf stopped, looked and listened at a place where it was customary to do so. Neither seeing nor hearing anything, so he testified, he started forward at a speed of two miles an hour, crossed the four feet between where he stopped and the nearest rail, the space between the two tracks, and the rear wheels of the truck were leaving the last rail of the farther track when it was struck by defendant's locomotive, which approached the crossing in a heavy fog without giving notice of its approach by whistle or by bell. Under these circumstances the question of whether Oberdorf was guilty of any negligence which contributed to the accident was one for the jury: Bard v. P. R. Ry. Co.,
Defendant also contends that the trial court unduly emphasized Oberdorf's testimony with respect to the fog and its interference with his vision, in charging the jury that "He stated that upon that day there was a dense, very dense, fog which limited his vision. . . . . . " Oberdorf described the atmospheric conditions as "terrible foggy." We can see no cause for complaint in the court's substitution of "dense, very dense, fog" for "terrible foggy."
We cannot say, as defendant would have us, that the court erred in admitting in evidence Oberdorf's estimate as to the speed of the train. It is contended that he was incompetent to testify as to this fact, in view of his limited opportunity for observation. He had been driving automobiles and trucks, and observing speedometers, for thirteen years. He was accustomed to judge speed and experienced in doing so. He saw the train approaching for 300 feet, and may have estimated its speed by the quickness with which it covered that distance. Under these circumstances, it cannot be said, as a matter of law, that he was incompetent to express an opinion as to its speed: Mellon v. Lehigh Valley R. R. Co.,
The third assignment of error complains of the ruling of the court below that any damage sustained by the truck in its removal from the scene of the accident by defendant's employees was a continuation of the original trespass. Defendant, however, apparently did not deem the question worthy of consideration, as it is neither referred to in defendant's brief nor comprehended in the statement of questions involved. We are not, therefore, called upon to consider it: Yeager v. Gately Fitzgerald,
Judgment affirmed.
