| Pennsylvania & N. Y. C. & R. Co. v. Huff

• Citation: 8 A. 789
• Parties: PENNSYLVANIA & N. Y. C. & R. Co. v. HUFF and others. [1]
• Decision Date: 28 March 1887
• Court: United States State Supreme Court of Pennsylvania

8 A. 789

PENNSYLVANIA & N. Y. C. & R. Co. v. HUFF and others. ^[1]

Supreme Court of Pennsylvania

March 28, 1887

Error to common pleas, Bradford county.

Case by Emma J. Huff, widow, and Lizzie Jane Huff and others children, of Henry Huff, deceased, against the Pennsylvania &amp New York Canal & Railroad Company for damages for the death of the said Henry Huff by the alleged negligence of defendant.

On October 27, 1884, Henry Huff, while crossing the road of defendant near Milan station, Bradford county, was struck by a locomotive and killed, under the following circumstances Huff and his hired man, William Walker, were hauling water along the road in a two-horse wagon. When about to cross the track, Huff stopped, looked, and listened for a train, and seeing and hearing none, he attempted to cross the track, when a locomotive coming along struck the wagon, which was demolished, and the horses and Huff were killed; Walker escaping injury by jumping off the wagon. The only question as to which there was any conflict in the testimony was as to the distance from the track where Huff stopped. Walker testified that it was about 45 feet from the track, and at a suitable place. Upon the trial, before MORROW, P. J., defendant requested the court to charge, inter alia, as follows: "That, under all the evidence in the case, the plaintiffs cannot recover. Answer. We refuse to charge you as requested in this point." Verdict for plaintiffs, $ 5,750, subsequently reduced to $ 2,500, and judgment thereon; whereupon defendant took this writ.

Judgment affirmed.

Davies & Hall and Henry Streeter, for plaintiff in error.

Persons about to cross a railroad are bound to recognize the danger, and to make use of the sense of sight, as well as hearing; and if one sense cannot be used, the obligation is the greater to use the other, and to ascertain, before attempting to cross, if a train is in dangerous proximity; and, if they do not, they cross at their own risk, and such conduct is negligence as a matter of law. Railroad Co. v. Feller, 84 Pa. 226; Railroad Co. v. Brandtmaier, 113 Pa. 610, 6 A. 238; Railroad Co. v. McClurg, 56 Pa. 294, 297; Carroll v. Railroad Co., 12 Wkly. Notes Cas. 848; Railroad Co. v. Beale, 73 Pa. 504; Railroad Co. v. Heileman, 49 Pa. 60; Railroad Co. v. Boyer, 97 Pa. 91; Railroad Co. v. Armstrong, 49 Pa. 186, 193.

Evans & Maynard and Rodney A. Mercer, for defendants in error.

Where there is any evidence which alone would justify an inference of the disputed fact, it must go to the jury, no matter how strong or persuasive may be the countervailing proof. Express Co. v. Wile, 64 Pa. 201; Philadelphia & R. R. Co. v. Yerger, 73 Pa. 121; Maynes v. Atwater, 88 Pa. 496; Egbert v. Payne, 99 Pa. 239; Bank of Easton v. Wirebach, 106 Pa. 37; Hill v. Trust Co., 108 Pa. 1; Bank of Du Bois City v. Bank of Williamsport, 114 Pa. 1, 18 Wkly. Notes Cas. 459, 6 A. 366. This case is ruled by Lehigh Val. R. Co. v. Brandtmaier, 113 Pa. 610, 6 A. 238. See, also, Schum v. Pennsylvania R. Co., 107 Pa. 8. The company must give due and timely notice of the approach of trains at highways. Railroad Co. v. Dunn, 56 Pa. 280; Railroad Co. v. Barnett, 59 Pa. 259: Railroad Co. v. Killips, 88 Pa. 405, 412; Railroad Co. v. Horst, 110 Pa. 226, 16 Wkly. Notes Cas. 567, 1 A. 217; Railroad Co. v. Stinger, 78 Pa. 219, 225; Longenecker v. Railroad Co., 105 Pa. 328, 332; Railroad Co. v. Coon, 111 Pa. 430, 438, 3 A. 234; Continental Imp. Co. v. Stead, 95 U.S. 161, 24 L.Ed. 403; Railroad Co. v. Goetz, 79 Ky. 442; Smedis v. Railroad Co., 88 N.Y. 13. Recoveries were had in the following cases where plaintiff stopped, looked, and listened at varying distances from the track: Railroad Co. v. Ogier, 35 Pa. 60, (80 feet; Railroad Co. v. Ackerman, 74 Pa. 265, (10 feet;) Railroad Co. v. Bock, 93 Pa. 427, (60 feet;) Railroad Co. v. Hagan, 47 Pa. 244, (40 feet.).

OPINION

PER CURIAM.

It would clearly have been error for the court to have taken this case from the jury. Henry Huff was killed while attempting to ride over the railroad at a public crossing. The unquestioned evidence is that, when he approached the...