276 Pa. 508 | Pa. | 1923
Opinion by
Market Street extends through the Borough of Marcus Hook, Delaware County, in a northerly and southerly direction, and is crossed at grade by defendant’s system of five tracks; the one most northerly being a siding and the next a westbound passenger track. The view to the
Vernon, the driver, was guilty of contributory negligence, for admittedly he drove the truck upon the railroad tracks, without stopping to look or listen; he and his wife, who was with him, so testify. That the motion of the truck was slackened, but not brought to a stop, while shifting the gear, was not intended as a compliance with the stop, look and listen rule, and cannot be given that effect: see Flick v. Northampton & Bath R. R., 274 Pa. 347.
Furthermore, the failure to stop, look and listen was not excused by the fact that the crossing gates were up: Greenwood v. Railroad Co., 124 Pa. 572; Kipp v. Central R. R. Co. of New Jersey, 265 Pa. 20, 24; Serfas v. Lehigh & New Eng. R. R. Co., 270 Pa. 306, 309.
Vernon was in Schofield’s employ in transferring the coal, therefore the former’s negligence is chargeable to the latter and defeats plaintiff’s action: Carson v. Federal St., etc., Ry. Co., 147 Pa. 219; Schultz v. Old Colony
This case bears no analogy to that of .an invited guest or of a passenger for hire, for the deceased was neither; so, whether his familiarity with the crossing and all the circumstances would, as matter of law, charge him with personal negligence in failing to caution the driver, we need not determine; for in any event the case must fail because of the employee’s negligence, as above stated. As the truck was being driven solely for Schofield’s benefit, the defense is stronger than had both he and the driver been interested in the work.
The order is affirmed.