244 Pa. 205 | Pa. | 1914
Opinion by
The question for determination here is whether the alleged contributory negligence of decedent was a question of law for the court or of fact for the jury. The husband was run down and killed after midnight at a grade crossing and this action was brought by the widow to recover damages. The presumption is that decedent did his duty which required that he stop, look and listen before attempting to cross the tracks of defendant company. As has been frequently said this is only a presumption which may be rebutted by proofs showing or tending to show failure on the part of decedent to observe this imperative rule of law. It is often difficult in the trial of such cases to determine whether the evidence is sufficient to rebut the presumption and what tribunal shall decide the question. If no witnesses are produced to testify as to what a person so injured and killed did as he approached the crossing, the presumption is sufficient to take the case to the jury on the question of contributory negligence. If there be direct and positive evidence that the decedent did not stop, look and listen before attempting the crossing, and there is no testimony that he did perform this duty, there can be no recovery and it is the duty of the court to so declare as a matter of law. If some witnesses testify that the decedent did perform this duty, and others that he did not do so, it is for the jury to determine the fact. If there be no direct testimony on the subject, but circumstances, physical conditions on the ground, unobstructed view and other like matters, are relied on to rebut the presumption, much depends upon the facts of each particular case in determining whether the question of contributory negligence is for the court or jury. But, it is settled by a long line of decisions that the question of contributory negligence can only become one of law for the court in clear cases where the facts are undisputed and but one inference can be drawn from them. If the facts are disputed and different inferences may be
We agree with the learned court below that on the question of the negligence the case was .for the jury. There was positive testimony that the safety gates were up when, the decedent attempted to cross the tracks, but this was contradicted by several witnesses called for de
Judgment reversed and a venire facias de novo awarded.