145 A. 840 | Pa. | 1929
Argued February 11, 1929. Decedent, the eighteen-year-old son of the plaintiff, residing with her at the time of the accident, was driving, about noon on March 16, 1924, the motor of a brewery company, by which he was employed, north on Third Street on the outskirts of the Borough of Ashland. He was well acquainted with the locality, and knew that it was necessary to cross the tracks of the defendant railroad to reach his destination. The highway in front of him was straight, and for 400 yards he could see the *321 ordinary warning signs, as well as the checkered safety gates, located both on the south and north, and the watchman's shanty constructed on the south side, from which direction he was coming. About 1,500 feet to the east was the Ashland passenger station, and for 1,000 feet of that distance the tracks approaching Third Street were straight, crossing the borough highway nearly at right angles. Two houses were located thirty-six feet south from the right-of-way, and, when passed, according to the pictures produced by plaintiff's photographer, a view could be had to the east at least 834 feet to a trestle. It was uncontradictedly shown at the trial by the civil engineers called by defendant that vision could be had for 1,525 feet. An effort was made to prove that a slight embankment on the south side, about 500 feet distant, would, to some degree, prevent a clear view of the track itself, but an oncoming train could, beyond dispute, be observed for a much greater distance.
O'Neill, the driver of the car, approached the crossing evidently at considerable speed, for he passed a car some 400 yards to the south, whose operator immediately thereafter heard the whistle, and the decedent must have covered that distance before he came upon the train at the crossing. The sign post was 1,323 feet away, and the train could only have traversed that space while the decedent was advancing over nearly the same distance before the accident occurred. An attempt was made to show that a signal was sounded when the train was only three hundred feet from Third Street. It was testified, without contradiction, by the engineer of the defendant company, that a whistle also was blown at the regular place. The motorist came to the crossing, passed the first track, and struck the front of the engine, which was moving west on the second one. His car was thrown backwards by the impact, and struck the crossing watchman, who is uncontradicted in the statement that he had run out into the center of the road trying to stop the car driver by calling to him, and who *322 likewise swore that O'Neill did not stop, look and listen, in which averment he is borne out by all of the attendant circumstances appearing.
The statement of claim did not set forth that decedent stopped, looked and listened before attempting to cross, but asserted negligence based on excessive speed, lack of proper signals and failure to have the safety gates lowered. Plaintiff further rested on the legal presumption that the deceased had performed his full duty in approaching the grade crossing, but such evidence as was produced and the physical facts so clearly negatived this conclusion that it was plainly error to permit a jury to find to the contrary. There is reason for assuming that one will not recklessly expose himself to danger, but will take the precautions obviously necessary to a prudent man who knows of the existence of a dangerous situation such as is presented in crossing railroad tracks where trains, having the right of way, may pass. Yet a jury will not be permitted to rest a finding for plaintiff, as it did here, on the presumption that deceased stopped, looked and listened, when the facts show that he must have seen the approaching train, if he had done what the unbending rule of law requires. Under such circumstances the court should declare, as a matter of law, that no such presumption arises: Henry on Trial Evidence, page 437.
In passing upon the question, all of the facts favorable to plaintiff, with proper inferences deducible therefrom, must of course be solved in favor of the claimant. But the doctrine that a person, losing his life in a grade crossing accident, must be assumed to have used due care, has no application where the circumstances show the opposite to be the fact: Zotter v. Lehigh Valley R. R. Co.,
Under all the testimony of both plaintiff and defendant, and as shown by both photographs and maps, he could have seen an oncoming train for at least 834 feet along a straight track. What was said in a similar case is applicable under the circumstances now presented: "There are allowable here but two logical conclusions: Either [decedent] stopped and looked, heard and saw the engine approaching, and took his chance of clearing the crossing ahead of it; or else, having, at a point distant from the crossing, observed or heard the engine coming, he took an equally fatal chance, and failed to stop, but drove upon the crossing at the very instant the locomotive arrived at that point": Haskins v. P. R. R. Co.,
Even if the facts had not negatived the presumption that decedent stopped, looked and listened, it was necessary that the negligence of defendant company appear, or facts shown from which it might be inferred, before *324
a verdict for the plaintiff could be sustained. Here it was rested, in part, on the failure to give a warning when approaching the crossing. Three witnesses for the claimant testified concerning this question. Two declared they heard two blasts at a distance at least three hundred feet away, and the third could not say whether a whistle was blown or not. The one last mentioned was driving, as he said, in a noisy car, and did not hear the signal, but expressly stated that he could not say whether or not one was given. None of these parties, produced by plaintiff, testified that no warning was given at the post 1,323 feet to the east, as sworn affirmatively by defendant's employees, or stated facts to indicate that they would necessarily have heard had a whistle been also blown at that point, and, as to this, their testimony was negative in character, and readily distinguishable from the evidence considered in Sharpless v. D., L. W. R. R. Co.,
It was further urged that there was sufficient proof of negligence when it was made to appear that only one of the two safety gates was down, the other being only partly lowered, at the time of the collision, and the further proof that the one lowered had not attained that position until the train had reached the crossing. Even though both were upright this would not have excused the deceased from stopping, looking and listening. Though the position of the gates could be considered, if the legal duty to stop had been established, as indicating a lack of due care for the protection of the public (Lake Shore R. R. Co. v. Frantz,
Other assignments of error relate to the admission of testimony, but, in view of our conclusion that binding instructions should have been entered for defendant, or judgment entered in its favor after verdict rendered for plaintiff, any discussion of the matters suggested becomes unimportant.
The judgment is reversed and here entered for defendant. *326