169 A. 95 | Pa. | 1933
Argued September 29, 1933. About 9:30 p. m., March 4, 1930, Hannah Welsh, then nearly seventy years of age, while walking southward over the five-8track crossing of the Pennsylvania Railroad Company at Heisel Street, Homestead, was struck and injured by an eastbound freight train on the fifth track. There are no safety gates at the crossing but ordinarily a watchman is stationed there. Plaintiff and others testified *89 that the watchman was not at the crossing when plaintiff crossed the tracks. The distance from the first rail of the first track to the last rail of the fifth track is 54 feet. There are pedestrian plank walks at right angles to and across the tracks on both sides of the crossing, these plank walks being projections of the foot-walks on each side of Heisel Street.
The train which struck plaintiff approached from her right and she said that before she got on the first track she could see toward the west, i. e., her "right," only as far as Dixon Street, 360 feet away from the Heisel Street crossing. There is a curve at Dixon Street. It was also testified that plaintiff's westward view as she crossed the tracks was diminished because of buildings jutting out to the track at Dixon Street. It was plaintiff's contention that beams from the headlights of approaching eastbound trains, because of the curve at Dixon Street, first strike a point beyond the first track at Heisel Street, and as the locomotives approach the latter crossing the rays of the headlight veer around so that they finally illuminate the particular track on which the train is running. Plaintiff said she stopped before she started over the crossing, that she looked both to the east and west, and listened, that she neither saw nor heard any train approaching before she entered the crossing, and that when she got to the last track she saw "a flash of light, and it was too late then . . . . . . and it catched me there. I was all excited — I didn't know nothing until the next day." The evidence as to the speed of the train was conflicting, but there was evidence adduced in behalf of the plaintiff that the train was going from 35 to 40 miles an hour and gave no warning of its approach. The jury returned a verdict for the plaintiff in the sum of $6,000. The motion for judgment n. o. v. was refused. Defendant appealed.
Appellant concedes that the evidence was such as to raise a jury question as to appellant's negligence but it is contended that appellee was guilty of contributory *90 negligence. Appellant offered evidence showing that when appellee was five feet back of the first rail of No. 1 track and therefore in a position of safety, she had a view westward of 573 feet. This was shown by a map made by an engineer and offered in evidence. It is conceded by appellant that there was evidence offered not only by appellee herself but by at least another witness that there was not a view from the first track as far as the map offered in evidence by defendant would indicate, and counsel, in their brief, reply to this by saying: "Probably these witnesses were speaking of the view to be had without there being any bright headlight to look for." As to this it may be observed that in these days when there are so many bright electric lights on automobiles and on streets and buildings, even the headlight of a train does not have the significance it had in former days when bright and flashing lights were not so common. Furthermore, here the headlight did not, because of the curve between the locomotive and the crossing, project its beams directly on the crossing. We cannot say as a matter of law that plaintiff was guilty of contributory negligence because she could, if she had looked westward, have seen the headlight 573 feet away if it had been there at that time. A train traveling 40 miles an hour can traverse a distance of more than 573 feet in ten seconds, and it is entirely possible that this headlight was not in view when plaintiff made her observation before crossing the tracks.
This is not a case where a person is injured immediately upon entering a railroad track. In such a case, particularly when there is a view for a considerable distance, it is obvious that the person struck has not stopped, looked and listened, or has done so in a careless manner. Appellant relies on the case of Hawk et ux. v. P. R. R.,
In the case of Thomas v. P. R. R. Co.,
It may well be that when Mrs. Welsh suddenly saw the headlight of the approaching train on the fifth track, this sudden peril caused her to err in judgment but an error in judgment does not constitute contributory negligence. If she saw the headlight of the approaching train before she had gotten into a position of danger on the fifth track, she would probably not have been able to determine instantly on which track it was approaching, and she obeyed a natural instinct to try to get off all the tracks instead of remaining on or retreating to the fourth track. This court said in Weiss v. Pittsburgh Rys. Co.,
This court has frequently held that "where there is doubt as to negligence upon the part of the plaintiff, the case is for the jury": Howard v. B. O. R. R.,
The judgment is affirmed. *93