Olive v. Director General of Railroads, Appeal, No. 52

Appeal, No. 52 | Pa. | Oct 20, 1922

Pee Ctjeiam,

Defendant appeals from orders of the court' below denying him judgment n. o. v. and refusing a new trial. The only questions now raised concern the alleged contributory negligence of plaintiff, and the admissibility of certain evidence given by one: of his witnesses. -

The action was brought to recover damages for personal injuries received, at 7:25 a. m., on October 8,1919, when an automobile truck, in which plaintiff was riding on a joint mission with the driver, was struck by a train of defendant railroad.

The scene of the collision was a grade crossing, familiar to both plaintiff and the driver; they, knowing the train was about due, slowly approached the crossing and stopped 12% feet from the nearest rail of the main track, the railroad at this point consisting of a siding and one track. The highway crossed the railroad at an angle, about two hundred feet from a bend in the latter, this curve somewhat limiting the view of approaching trains.

A clouded sky, together with a fog of disputed density, made visibility difficult, but plaintiff said it was possible to see down the track some two hundred feet, the driver estimated it at about1 three hundred feet; however, as they approached the railroad, their view was temporarily obstructed by a pile of ties and a box car on the siding. Neither seeing nor hearing anything, they started forward at about two miles an hour, — all that low gear and a heavily loaded truck, weighing ten ’tons, would permit, — and, when they were crossing the main track, the rear end of the truck was struck by the train. Plaintiff testified that the truck was stopped at the place where it was customary for travelers to stop, look and listen before crossing.

On the above-stated facts, the case was for the jury: Siever v. Pittsburgh, etc., Ry. Co., 252 Pa. 1" court="Pa." date_filed="1916-01-03" href="https://app.midpage.ai/document/siever-v-pittsburgh-cincinnati-chicago--st-louis-railway-co-6252960?utm_source=webapp" opinion_id="6252960">252 Pa. 1, 8.

The trial judge permitted a witness for plaintiff, who did not see the accident, to testify that the best, as well as the usual, place to stop when approaching the crossing in question, was where plaintiff testified they had stopped on the morning of the collision; under the attendant circumstances, this presents no reversible error: Cookson v. Pittsburgh & Western Ry. Co., 179 Pa. 184" court="Pa." date_filed="1897-01-04" href="https://app.midpage.ai/document/cookson-v-pittsburg--western-railway-co-6244034?utm_source=webapp" opinion_id="6244034">179 Pa. 184, 193.

The judgment is affirmed.