36 A.2d 644 | Pa. | 1943
Lead Opinion
The plaintiffs, Lawrence Morata and Lawrence Valera, brought separate actions against the defendant, the Reading Company, on account of injuries sustained in an accident at a grade crossing. In the Valera case the defendant brought in Morata as an additional defendant. State highway route No. 54 in Northumberland County, intersects the Reading's railroad single track at Richard's Tunnel Crossing. On the night of November 14, 1941, an automobile driven by Morata, with Valera as a guest passenger, was struck at this crossing by the defendant's train. Both appellants were injured and the car was destroyed. The cases of these two plaintiffs were tried together and the trial judge directed verdicts for the defendant company. Motions for new trials were refused. These appeals followed.
On this state of the record we must assume that the plaintiff's evidence "disclosing the true version of what took place": Grimes v. Pa. R. R. Co.,
The collision occurred at 7:30 o'clock on a dark and cold evening. The car's windows were closed. The plaintiff, Morata, was driving a 4-door Packard sedan northward, and Valera was sitting on his right side. As the *125 car approached the crossing, the driver saw a truck stopped ahead of him on the tracks, and he brought his car to a full stop about 25 feet behind it. A car coming down the hill with bright headlights prevented Morata passing the truck, and his car stopped for about a half minute. Morata testified that when the truck started he looked and listened and did not see or hear anything, that there was no light on the engine and that he "listened for a whistle and they didn't blow one" and there was no bell rung or any other warning given by the engine. In this he was corroborated by his guest passenger, Valera. Morata also said that he then proceeded to cross the tracks and at that time the other car which was coming down the hill passed on his left. That car was not struck. When his automobile was between the rails, he suddenly heard something and "saw a black thing coming toward" him. He couldn't tell what it was because "it was too quick for him and it hit" him. The passenger, Valera, testified that there was a second stop when they came to about two or three feet from the first rail before Morata drove on the crossing, although on cross-examination he said that he didn't "know as it exactly stopped but going real slow for time to look and listen". He looked up and down the track and heard no noise except noise from an air compressor in the compressor house on the colliery grounds of the Colonial Coal Company about 300 feet from the railroad on the right hand side of the road. It runs all day. The crossing was in total darkness. The plaintiffs were acquainted with the crossing. After the engine struck the car it traveled about 150 feet. The driver did not know how fast he was traveling nor did he know how fast the train was traveling.
The railroad company offered testimony directly contradictory to that of plaintiffs. The oral testimony of the defendant showed that the train consisted of an engine, five cars of loaded coal and a caboose; that both the *126 whistle and the bell were sounded in time to warn one at the crossing; that the electric headlight was shining on the engine on high beam, and that the train was traveling between six and ten miles an hour. The engineer testified that he saw the car coming 150 feet away from the crossing and the car did not stop at any time before it went over the crossing.
"It was the driver's duty to stop, look and listen before proceeding over this crossing. . . 'In Paul v. P. R. Ry. Co.,
The testimony of Morata, the driver, convicts him of a breach of the duty above defined. He testified that he "was fifteen or twenty feet away from the crossing when (he) looked the last time" and his car was then moving. He was under the duty of constantly and carefully listening and looking until he was out of danger. Morata was obviously inattentive when he drove onto and over this crossing and inattention in that situation is negligence. *127
See Hawk et ux. v. Penna. R. R. Co.,
The company contends that Valera was guilty of contributory negligence, because he knew or should have known of the imminent danger and did not warn the driver of it, and it argues that he was negligent because he heard a noise and failed to investigate it. The noise he heard he identified as that of "the air compressor". His failure to investigate a noise in no way related to a moving train does not make him negligent. We said in Nutt v. Penna. R. R.,
In Schlossstein et ux. v. Bernstein,
The facts in this case do not justify the holding as a matter of law that Valera, the guest passenger, was guilty of negligence.
The judgment of the court below in No. 174, January Term, 1943, in which Lawrence Valera is the plaintiff-appellant, is reversed with a venire.
The judgment of the court below in No. 175, January Term, 1943, in which Lawrence Morata is plaintiff-appellant is affirmed.
Dissenting Opinion
I dissent from the affirmation of the judgment in which Lawrence Morata is the appellant. I fail to find in the evidence anything which convicts him of contributory *129 negligence as a matter of law. He stopped, looked and listened when reasonably close to the track. He testified that there was no light on the engine and no whistle blown or bell rung. He was familiar with the crossing and was therefore justified in presuming that if a train were approaching he could see its headlight at least four or five hundred feet away. Not seeing any such light as he was about to go over the tracks there was apparently no need for further caution and for continued peering into the darkness. At any rate it would be for the jury to say, under such circumstances, whether he failed to exercise reasonable care.
Mr. Justice PATTERSON joins in this dissent.
