Blight v. Camden Etc. R. Co.

• Decision Date: 27 May 1891
• Docket Number: 257
• Citation: 143 Pa. 10,21 A. 995
• Parties: C.P. BLIGHT v. CAMDEN ETC. R. CO
• Court: Pennsylvania Supreme Court

21 A. 995

143 Pa. 10

C.P. BLIGHT v. CAMDEN ETC. R. CO

No. 257

Supreme Court of Pennsylvania

May 27, 1891

Argued April 10, 1891

APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS NO. 3 OF PHILADELPHIA COUNTY.

No. 257 January Term 1891, Sup. Ct.; court below, number and term not shown.

On August 25, 1888, "Charles P. Blight, administrator of George Leightheisel, deceased, to the use of John Leightheisel, and Mary Leightheisel, parents of deceased, and Mary Leightheisel, his sister," ^[*] brought trespass against the Camden & Atlantic Railroad Company. Issue.

At the trial on October 20, 1890, the plaintiff adduced testimony showing that on August 5, 1888, about five o'clock in the afternoon, George Leightheisel, the deceased, and one Charles Schad were about to cross the railroad track of defendant company at a public crossing near Chiselhurst station, New Jersey, to take a train to Philadelphia. The railroad ran somewhat north and south. The highway crossed it at right angles. The station was on the west side of the track and south of the crossing. About one hundred and fifty yards south of the crossing was a cut through which the track passed. A heavy thunder storm broke upon the deceased and his companion as they approached the crossing from the east. Schad testified that when they got to a point about three yards from the track, carrying umbrellas, they stopped to see if any train was approaching; that they looked south towards Atlantic City, but did not see or hear any train; that the storm was blinding, and the witness did not believe one could see more than ten yards; that as they passed upon the track an express train approached from the south, and passed the station and the crossing at the rate of sixty miles an hour without ringing the bell or blowing the whistle. Leightheisel was killed on the track. The testimony of other witnesses called by the plaintiff sufficiently appears in the opinion of the court.

At the close of the plaintiff's case, the court, FINLETTER P.J., on motion of the defendant, entered a judgment of nonsuit, with leave, saying:

There is no doubt that in this case the defendants were negligent and the only question that remains is whether the deceased was or was not negligent. The evidence is that persons could see nearly six hundred yards down the road, and it is almost impossible to conceive that any person could stop and look and listen, and then be instantly killed. This man could have seen, if he had taken the precaution which the law required, to stop and look and listen. I do not see that the evidence is at all satisfactory that it was impossible to see more than ten yards, because these people were seen at a distance of three or four hundred yards in the same storm, and were seen down to within thirty feet or ten yards of the track. But itdown to within thirty feet or ten yards of the track. But it seems to me that if the storm was so violent that they could not see, the greater the necessity to stop and to stop long enough. I am compelled in this case to enter a nonsuit.

A rule to show cause why the judgment of nonsuit should not be taken off having been discharged, the plaintiff took this appeal, assigning the orders entering the judgment and discharging said rule, for error.

Judgment affirmed.

Mr. Charles P. Blight and Mr. S. Morris Waln, for the appellant.

Mr. Edwin J. Sellers (with him Mr. D. W. Sellers), for the appellee.

Before PAXSON, C.J., GREEN, CLARK, McCOLLUM and MITCHELL, JJ.

OPINION

JUSTICE GREEN:

This is another instance in which a person stepped upon a railroad track in front of an approaching locomotive, and was instantly struck and killed. A companion of the deceased was with him at the time, and succeeded in getting across the track in time to avoid a collision. He testified that when they were approaching the track they "stopped to see whether any train was coming. Leightheisel was right alongside of me. We looked down towards Atlantic City; we could not see any train. We did not hear any whistle blown or bell rung. I then started, and ran across the track. . . . The first I saw or heard of the...