147 A. 854 | Pa. | 1929
Argued October 1, 1929. The track of the Pennsylvania Railroad, extending through Concordville, Delaware County, in an easterly and westerly direction, is crossed at grade and practically at right angles by the state highway known as the Concord Road. The latter is level at and near the crossing and then to the north passes over a hill. The railroad consisting of a main track, on the south of which *104 is a siding, approaches the crossing from the east on an ascending grade. The plaintiff, Hannah Hall Rhodes and her husband, Frederick A. Rhodes, resided in Chester and at about 1: 15 on the morning of January 10, 1926, returning home from a social in a Dodge automobile, came from the north down the Concord Road on to the main track, where the automobile was struck by the engine of a westbound passenger train. Mr. Rhodes was killed and his wife very seriously injured. This suit, brought to recover the damages plaintiff sustained in the death of her husband and on account of her own injuries, resulted in verdicts for plaintiff, upon which judgments were entered, and the defendant has appealed.
We will discuss only the question of contributory negligence; because of which, in our opinion, the judgment cannot be sustained. Mr. and Mrs. Rhodes were entirely familiar with the crossing and when they came to within ten feet of the first rail of the main track had an unobstructed view thereof to the east for thirteen hundred and fifty feet. Plaintiff says they stopped the automobile when about six feet from the track. It was a clear, quiet, starlight night. No other train or traffic was moving in the vicinity and nothing to obstruct the view or deaden the sound of the approaching train. Furthermore, it was moving up a grade, where, as matter of common knowledge, the working of an engine can be heard a long distance. In fact plaintiff's witness, Vernon Hart, testified that he heard the train while it passed over the entire thirteen hundred and fifty feet. This is contradicted only by the bald statement of the plaintiff that neither she nor her husband heard the train. It is as much the traveler's duty to listen as to look; he is as bound to hear what is audible as to see what is visible. Because of darkness or other obstructions to view, the sense of hearing is often vital. See Hess v. Williamsport, etc., R. R.,
While the evidence was conflicting as to whether the engine's headlight was bright or dim, new-fallen snow covering the ground added to the starlight and we are not convinced that the train coming up the straight track was invisible, especially as plaintiff admits she could see down the track a distance estimated at from one hundred and fifty to three hundred feet. However, we deem the failure to hear, in the instant case, conclusive proof of contributory negligence. The rule of Carroll v. P. R. R. Co., 12 W. N.C. 348, is applicable to accidents at night wherever it clearly appears that by due care the traveler could have known of the approach *106
of the engine or car before entering upon the track. That the accident happened in the night will not aid a plaintiff where it clearly appears that despite the darkness he could have discovered the approaching train before attempting to cross the track. See Smith, Admrx., v. McAdoo, Dir. Gen.,
The established facts, including the very important one that Mr. Rhodes' automobile was immediately struck as he drove upon the track, rebut the presumption of due care on his part and preclude recovery for his death. In Tull v. B. O. R. R.,
The negligence of Mr. Rhodes would not be chargeable to his wife merely because she was riding with him; she might still recover for her own injuries. Unfortunately this cannot be done under her testimony, for she says she was sitting with him on the front seat and advising with him as to crossing the track, and says in direct examination: "Q. As I understand it, Mrs. Rhodes, when you came there, and you say that you stopped at that point, when you and your husband were six feet away from that rail, when you were in the front seat, you say you both looked to the left, in the direction in which this train was coming? A. We did. Q. And then you both decided to go forward? A. We did"; and reiterated it on cross-examination. She also says her hearing is good. Her opportunity to control the situation was equal to his. It therefore appears that she voluntarily joined in testing the danger and as he was negligent she was equally so. In such case the wife who encourages her husband to proceed in the face of obvious danger cannot recover: Morningstar v. N.E. Penna. R. R. et al.,
There was some conflict in the evidence as to signals, which, with the alleged dim headlight, probably made the question of defendant's negligence one for the jury. On the controlling question in this case, that of contributory negligence, there is no substantial conflict in the evidence; hence, it is the duty of the court to declare its legal value: Wolf v. P. R. T. Co.,
The judgment is reversed and is here entered for the defendant non obstante veredicto.