18 A. 718 (Pa. 1889), 153, Dean v. Pennsylvania R. Co.

Docket Nº:153
Citation:18 A. 718, 129 Pa. 514
Opinion Judge:JUSTICE CLARK
Party Name:ISAAC N. DEAN v. PENNSYLVANIA R. CO
Attorney:Mr. Edward Campbell and Mr. Thomas Patterson (with them Mr. David Q. Ewing), for the appellant: Mr. George B. Gordon (with him Mr. John H. Hampton and Mr. William Scott), for the appellee:
Judge Panel:Before GORDON, C.J., PAXSON, STERRETT, GREEN, CLARK, WILLIAMS and HAND, JJ.
Case Date:October 07, 1889
Court:Supreme Court of Pennsylvania
 
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Page 718

18 A. 718 (Pa. 1889)

129 Pa. 514

ISAAC N. DEAN

v.

PENNSYLVANIA R. CO

No. 153

Supreme Court of Pennsylvania

October 7, 1889

Argued: October 26, 1888

APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS NO. 1 OF ALLEGHENY COUNTY.

No. 153 October Term 1888, Sup. Ct.; court below, No. 763 December Term 1885, C.P. No. 1.

To the number and term of the court below, Isaac N. Dean brought case against the Pennsylvania Railroad Company, lessee, operating the Southwest Pennsylvania Railroad, to recover damages for personal injuries alleged to have been suffered by the plaintiff in consequence of negligence on the part of the defendant. Issue.

At the trial February 6, 1888, testimony was adduced on the part of the plaintiff, from which the following facts were made to appear:

On the morning of November 25, 1882, Isaac N. Dean, the plaintiff, who was then about twenty-two years of age and resided near Frost station, upon the line of the Southwest Pennsylvania railroad in Fayette county, went to a store not far from said station, known as the Youngstown store, for the purpose of procuring supplies for his father. When he was about to start home, a wagon drawn by two mules, in charge of William Fields, its regular driver, was starting in the same direction with a load of supplies for the workmen in the coke company's employ, and Fields invited the plaintiff to ride with him in the wagon. The plaintiff accepted the invitation, got into the wagon and took a seat upon some flour sacks, with his back to the mules. The wagon then started, Fields driving, and his son, a boy about twelve years old, being with him on the driver's seat. Their way led past Frost station. At a point about 324 feet distant from said railroad, the wagon passed through a set of bars and turned into a public road which crosses the railroad, at grade, at Frost station. After passing through the bars the wagon was halted at the corner of the Blackburn House, about 300 feet from the railroad, while the bars were put up by Fields's son.

While this was being done, the plaintiff looked around at the railroad. A stretch of 300 feet of the track, commencing at a point about 1300 feet distant from the crossing of the road upon which the wagon was standing, could be seen by the plaintiff. He neither saw nor heard any train approaching. He was entirely familiar with the locality, having lived about Frost station for nine months, during which time he had passed over the crossing, which the wagon was about to approach, five or six times a month, on an average. He knew that a train was due about that time, but supposed it had passed. When the bars were closed young Fields got into the wagon again, and the mules were started on at "a right fast trot."

Between the Blackburn House and a point 124 feet distant from the railroad, the view of the latter from the public road is at times obstructed by trees and houses. At the latter point the public road commences to descend to reach the level of the railroad crossing, making a descent of five and seven tenths feet and passing through a cut five or six feet deep. The evidence was conflicting as to the extent to which a person passing through this cut in a wagon, would have a view along the railroad track. Andrew J. Gilmore, a surveyor called by the plaintiff, testified that a train at any point on the railroad, within at least 1300 feet of the crossing, could be seen from a wagon in any part of the cut, except perhaps at the end of it next the railroad. The plaintiff denied that this could be done, but conceded that at a distance of ten feet from the track a person would have an unobstructed view along it for a considerable distance.

Upon reaching the brow of the hill where the descent to the railroad commences, Fields checked the speed of his team to a walk, but kept on without stopping, and as they started down the descent the mules commenced to trot again, and kept at a rapid trot till they got on the crossing. At no time after leaving the Blackburn House and before the wagon got to the crossing, did the plaintiff look to see if a train was coming. Nor did he make any request of Fields to stop the wagon.

When the mules were just starting across the track the occupants of the wagon were startled by the whistle of an approaching train of the defendant, sounding the danger signal. The train was then about 125 feet from the crossing. Fields tried to whip up his mules and hurry them across the track, but there was not time to get over, and the wagon was struck by the train. The plaintiff being weak in consequence of a recent attack of typhoid fever, was unable, as he claimed, to disengage his feet from sacks of flour by which they were surrounded, and therefore could not jump out of the wagon, and in the collision between the train and the wagon he received severe injuries.

In support of the allegation of the defendant's negligence, several witnesses testified that they were in a position to hear any signals for the road crossing, and heard nothing until the sounding of the danger signal when the wagon was already upon the track. There was testimony tending to show that the train was running at the rate of 35 or 40 miles an hour.

At the conclusion of the plaintiff's testimony the defendant moved the court for a judgment of compulsory nonsuit, upon the ground that it appeared from the uncontradicted evidence that the plaintiff did not stop, look and listen...

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