99 Pa. Super. 519 | Pa. Super. Ct. | 1930
Argued April 29, 1930. The plaintiff recovered a verdict of $3,500, (of which $1,000 was afterwards remitted), damages for injuries suffered by him when his automobile, which he was driving, was run into and demolished by one of defendant's express passenger trains. Defendant appeals from the refusal of the court below to enter judgment non obstante veredicto in its favor.
The accident occurred at a grade crossing a short distance west of the defendant's station at Harmarville, Pa. The railroad at this point runs east and west, east going towards Aspinwall and west towards Pittsburgh. The Freeport Road, a public highway, runs parallel to the railroad and north of it at this point. A road leading southwardly from it crosses five tracks of the railroad at grade at a right angle. Three of these tracks are sidings, two are main running tracks. Approaching from the Freeport Road they come in the following order: first siding, second siding, west bound track, east bound track, third siding. Between the Freeport Road and the first siding is located the single track railway of the Allegheny Valley Street Railway Company which is 23 feet north of the siding. The crossing makes a gradual ascent of "five feet and some inches" from the first siding track to the two main running tracks. The tracks are all standard gauge, (4 ft. 8 3/4 inches). The space between the first two sidings at the center of the crossing is six feet; between the second siding and the west bound track, eight feet; between the two main tracks, seven feet; and between the east bound track and the last siding, seven feet. Mr. Montgomery, assistant supervisor for the defendant, who made the plan offered in evidence, testified that the distance between the first and last rails of the defendant's *521 tracks was forty feet, but he was obviously mistaken. The distance is approximately fifty-two feet, and may be so measured on the plan drawn to scale, as well as by the details of his evidence. Five tracks of standard gauge cover 23 feet 7 3/4 inches; the space between them, 6 + 8 + 7 + 7 equals 28 feet, or 51 feet 7 3/4 inches. From the north rail of the first siding to the south rail of the east bound track is 40 feet. The crossing is of planks and is 20 feet wide.
As the verdict was for the plaintiff all disputed questions of fact must be resolved in his favor. He must be given the benefit of all evidence favorable to him and all inferences fairly deducible therefrom.
The following facts may be thus found from the evidence. On July 13, 1925, at about 3:30 o'clock P.M., plaintiff was driving an open Maxwell touring car eastward on the Freeport Road. He turned south at the Harmarville crossing and stopped his car in the space between the street railway track and the first crossing, about five feet from the northernmost rail, and looked and listened. His view to the west was obstructed by the elevation of the right of way (about five feet) and by some weeds, etc., growing thereon, so that he could not see farther than about 100 feet. No whistle was sounded, bell rung, nor other signal given of an approaching train. He started his car in low gear, and went up the grade over the sidings, traveling very slowly, four or five miles an hour — "an ordinary walk," as one witness put it. He had to look first to his left, the east, for trains approaching on the west bound track, the crossing was rough, with the rails higher than the planks, and he had to look out for foot passengers who were traversing the crossing in the same direction ahead of him. When his front wheels were just past the first rail of the east bound track he saw the defendant's train approaching on that track, 200 feet away, traveling at fifty miles an hour. His automobile was struck in the rear before he had *522 quite cleared the track, and was knocked in a southeasterly direction, thirty-six feet, to a point in front of the station, while the train ran 960 feet before it could be stopped.
Defendant contends that judgment non obstante veredicto should have been entered in its favor on two grounds: (1) because the negligence of the defendant was not proved; (2) because plaintiff was guilty of contributory negligence.
(1) The alleged negligence of the defendant consisted in running the train at such great speed without any warning of its approach. Defendant's train-men and a number of witnesses testified that the regular crossing whistle was blown west of Deer Creek bridge at the whistling post about 1,300 feet west of the crossing, and the fireman testified that he rang the bell all the way to the crossing, though no other of defendant's witnesses heard it. Four of the plaintiff's witnesses, who admitted they were not paying special attention to the matter, said no whistle was blown or bell rung. Had this been all, the authorities relied on by appellant might apply. But two witnesses, the plaintiff and Mrs. Borknick, who walked over the crossing from the Freeport Road to the station immediately ahead of the plaintiff, and both of whom were specially listening for a signal of the approach of the train, testified that none was given. We do not understand that the Supreme Court has ruled that the testimony of the railroad engineer and fireman that a whistle was blown or bell rung is conclusive in all cases. If it were so ruled, we know of few or none of the cases where a plaintiff was allowed to recover judgment against a railroad company, because of a collision at a public crossing, which could be sustained; for in practically all of them the train-men so testified. In the case of Haskins v. Penna. R. Co.,
(2) Defendant contends that plaintiff's contributory negligence was established by incontrovertible, physical facts and mathematical measurements; that his evidence and that of his witnesses cannot prevail against the measurements and calculations submitted by the defendant. We are familiar with the doctrine invoked by the defendant's counsel and have examined all of the cases cited by him as bringing this case within its purview. But that rule is not to be applied in a case of split seconds, involving a close calculation of time and space; it is enforced where the accident occurs so immediately after the plaintiff's entrance on the crossing that it is clearly physically impossible for the injured party to have stopped, looked and listened and not seen the nearby approaching train: Mensch v. Payne,
We think the facts bring it more clearly within the cases of Jester v. P.B. W.R. Co.,
We are of opinion that the negligence of the defendant and the contributory negligence of the plaintiff were both questions of fact for the jury and that their verdict should not be disturbed.
The assignment of error is overruled and the judgment affirmed.