238 Pa. 295 | Pa. | 1913
Opinion by
The questions involved in the case were questions of fact, and having been properly submitted to the jury, we see no ground for reversing the judgment entered on the verdict. The jury were justified in finding under the evidence that the place at which the plaintiff was injured was a permissive crossing. In fact, the evidence did not warrant a contrary finding. It is conceded that there was a permissive crossing directly opposite the top of the stairway leading up from the pump station and another such crossing about 150 feet west thereof. The plaintiff was injured by being struck by the rear car of a freight train at a place on a siding, the southernmost of the three tracks and about equally distant between the two crossings, and which he alleges was also a permissive crossing. The evidence introduced by him clearly established his contention, and showed that for many years the three crossings had been used by the public who had occasion to go to the pump
The contention of the defendant company that at the time of the accident the plaintiff was “wandering up and over the defendant’s right of way” and around the end of the train cannot be sustained. The plaintiff was prevented from passing over the eastern crossing by reason of the train extending west of and blocking it. The accident occurred on the side track and that crossing was frequently blocked by standing cars, extending as far west as the cars did on this occasion. Whenever this occurred the public invariably passed around the rear end of the train as the plaintiff was doing at the time he was injured. There was a clearly defined path leading up to the side of the tracks used by the public when they were compelled to pass in the rear of the train blocking the eastern crossing and a path on the opposite side leading to the stairway. The location of the path crossing the ties, rails and the ballasting was necessarily not so distinctly marked, but sufficiently so to show that it was used by the public. It is not cor
We agree with the learned court below that there was sufficient evidence of notice to the train crew, prior to the second injury, of the perilous position of the plaintiff to warrant a finding that the crew had such notice. The plaintiff was not required to give notice directly to the engineer. The crew was in control of the train, and it appeared from the evidence that prior to the second movement the brakeman had notice of the plaintiff’s position and that he at once gave the proper signal to those in charge of the locomotive.- It certainly goes without saying that it was the duty of the engineer or, other party operating the engine to observe the signal and to act promptly on the information thus communicated to him. A jury should have little difficulty in finding that the failure to perform this duty was negligence for which the defendant would be liable. We think it apparent that the second injury would have been avoided had the engineer seen and heeded the signal given by the brakeman. It must be presumed that the crew in charge of the train knew the location of all the crossings, and that shunting cars to the rear without warning might endanger those who were properly using the crossings. This made it the manifest duty of the crew to exercise proper care in backing the train over the crossings. The defendant and those using the crossings had reciprocal rights and were subject to reciprocal duties at the place of the accident, and the failure of either to observe those duties would convict him of negligence.
The assignments are overruled and the judgment is affirmed.