32 A. 84 (Pa. 1895), 234, Beynon v. Pennsylvania R.R
|Citation:||32 A. 84, 168 Pa. 642|
|Opinion Judge:||PER CURIAM|
|Party Name:||Emma P. Beynon, Appellant, v. Pennsylvania R.R|
|Attorney:||D. Stuart Robinson, for appellant. David W. Sellers, for appellee.|
|Judge Panel:||Before STERRETT, C.J., GREEN, MITCHELL, DEAN and FELL, JJ.|
|Case Date:||May 30, 1895|
|Court:||Supreme Court of Pennsylvania|
Argued: April 3, 1895
Appeal, No. 234, Jan. T., 1895, by plaintiff, from judgment of C.P. No. 3, Phila. Co., March T., 1893, No. 160, refusing to take off nonsuit. Affirmed.
Trespass to recover damages for the death of plaintiff's husband. Before FINLETTER, P.J.
At the trial the court entered a compulsory nonsuit.
In the opinion refusing to take off nonsuit, FINLETTER, P.J., stated the facts to be as follows:
"The facts in this case are undisputed and certain. On the 2d of February 1893, at 5:30 P.M., the husband of the plaintiff was crossing the railroad at Fuller's Lane and was killed by a passenger train on track No. 1. He had passed over four tracks.
"He had stopped about five or ten feet from the track and had looked in the direction from which the train came. He was in a wagon and the witness Watson was on horseback a little behind. There was a slight mist and a not very high wind, but the tracks when not obscured by smoke could be seen from 900 feet to a mile. The track was obscured by smoke about 100 feet from where they stood when they began to cross, walking their horses. The distance from where they stopped to look to a place of safety was about fifty feet.
"There was no evidence that the defendant whistled or rung the bell or had a headlight, and they were in this respect negligent. The rate of speed was forty miles an hour, but there is no evidence that it was unusual or immoderate.
"The nonsuit was entered because the plaintiff's husband was negligent."
GORDON, J., in a dissenting opinion stated the facts as follows:
"The man who was killed approached the railroad crossing in his wagon about twilight of a misty day. The evidence was explicit that he twice stopped and looked and listened, the last time at the edge of the tracks, which he then proceeded to cross, but was struck by an express train running at the rate of forty miles an hour. He had safely crossed four tracks before he was struck. A fellow traveler on horseback crossed all the tracks without injury. No whistle was blown from the engine, no bell was rung until the train was almost at the crossing, and there was no headlight. The points at which the injured man stopped to look and listen were, in...
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