133 A. 636 | Pa. | 1926
Defendant contends on this appeal from a judgment which represents the damages recovered by plaintiff for the death of her husband in a grade crossing accident that, notwithstanding the verdict, we should direct judgment in its behalf. A study of the record and a full consideration of the brief and the oral argument of appellant's able counsel have not convinced us that the result reached in the court below should be disturbed.
Plaintiff's husband on the morning of November 8, 1922, drove his automobile along East Street in the town of Bloomsburg. The street which is greatly traveled is crossed by defendant's railroad at grade. The crossing is protected by safety gates. As deceased approached the crossing, the gates were not lowered, although the operator whose duty it was to put them down was at his post in the tower about twenty feet above the tracks, from which they were controlled. There were two tracks across the highway, a side track and a main one. When deceased reached a point where the front of his car was two or three feet from the side track, which was the one nearer to him, he stopped according to witnesses summoned by plaintiff who were near by *442 and in position to observe; this was contradicted by some of defendant's witnesses. As deceased started up his automobile and was about to enter on the main track located seven feet seven inches from the side one, a train running rapidly, its speed estimated to be from 30 to 50 miles an hour, gave notice of its approach by the whistle of its engine blown some 75 or 100 feet from the crossing. This notice of the onrushing train must have been heard by deceased for he suddenly and simultaneously therewith steered his car to the left in an endeavor to avoid the collision. He was unsuccessful and was carried by the engine into contact with a freight car on the side track, receiving injuries which produced unconsciousness and from which he died a few hours later.
From the point where he stopped, the view of the deceased in the direction from which the train approached extended along the track on which it was running about 65 feet. If he had alighted from his motor car and walked ahead to the track and then looked, on a clear day he could have seen the track for more than 500 feet. However, it was not a clear day, but a foggy one, particularly on the railroad tracks, which ran between buildings, where, it was testified, the fog was very heavy, so dense, according to the engineer of the train, that he could not and did not see the safety gates were not down until he was within 75 or 100 feet of them, when so observing he sounded a sharp blast on the train's whistle. The fog was so thick that the watchman in the tower above the tracks, who, while not called as a witness because of illness, is presumed to have been doing his duty and on the lookout for the train, which was running behind time, did not attempt to lower the gates, in all probability because he did not hear and could not see it rapidly approaching until practically on the crossing. It is manifest then that, even had deceased alighted from his automobile and gone forward to observe the situation on the main track, he could not have seen along it *443
a distance of over 100 feet because of the fog, but under the situation existing we are of opinion it was not the duty of deceased to alight from his car and go forward to observe the track to see whether a train was approaching. Here we have a much traveled asphaltum paved highway in a populous town with the railroad grade crossing thereon protected by safety gates. Every traveler on the highway had the right to rely to some extent on this safeguard which the railroad company had provided and, having stopped as this unfortunate man did, could rest in the assurance that if a train was approaching, the gates would be lowered and, if they were not, that it was safe to proceed. If the rule were to be laid down that at such a crossing as this, with the gates up, every traveler by automobile or other conveyance must alight after stopping and go ahead on foot to observe the tracks, danger would be increased instead of diminished. In times when there was much traffic at the crossing, if one, then all must alight from their cars just before reaching the first track. While they were doing so, all traffic would be halted and with trains proceeding as rapidly as this one was, there would be no assurance that when they got back in and started their automobiles forward they would be safe. We have recognized that while raised safety gates do not obviate certain precautions on the part of those approaching a crossing, such as stopping (Earle v. Phila. Reading Ry. Co.,
Appellant contends that adequate signals by whistle and bell were given for the crossing. There can be no question that a blast of the whistle was given when the engine was within 75 to 100 feet of the crossing; substantially all the witnesses on both sides so say. It is recognized by appellant's counsel that this signal was not a sufficient warning, but they contend that, prior to it, adequate approach signals were given, and they called witnesses who so testified. Other persons speaking in appellee's behalf said that no prior danger signals were given. Appellant urges upon us that this testimony was negative under such cases as Rapp v. Central R. R. of Pa.,
The vital question in the case is whether and where the engineer gave a signal prior to the one when he was close to the crossing. It is significant that there was a conflict in the testimony of the train crew as to just where the whistle was blown. The express messenger on the train, moreover, heard only one whistle sounded for the crossing and the fireman did not know whether the bell was ringing or not.
As the case presents itself to our minds, it was one for a jury to decide and not for the court's determination.
The judgment is affirmed.
