Benner v. Philadelphia & R. Ry. Co.
| Decision Date | 07 October 1918 |
| Docket Number | 208 |
| Citation | 105 A. 283,262 Pa. 307 |
| Parties | Benner v. Philadelphia & Reading Railway Company, Appellant |
| Court | Pennsylvania Supreme Court |
Argued July 16, 1918
Appeal, No. 208, Jan. T., 1917, by defendant, from judgment of C.P. No. 4, Philadelphia Co., June T., 1915, No. 4723, on verdict for plaintiff in case of Lettie May Benner v Philadelphia & Reading Ry. Co. Reversed.
Trespass to recover damages for death to plaintiff's husband. Before CARR, J.
The facts appear in the opinion of the Supreme Court.
Verdict for plaintiff for $13,500 and judgment thereon. Defendant appealed.
Errors assigned were answers to points and in dismissing defendant's motion for judgment non obstante veredicto.
The fifth, sixth and eighth assignments of error are sustained and the judgment is reversed.
William Clarke Mason, for appellant.
George Demming, for appellee.
Before BROWN, C.J., STEWART, MOSCHZISKER, FRAZER, WALLING, SIMPSON and FOX, JJ.
This suit was brought by the plaintiff to recover damages for the death of her husband, who was killed at a grade crossing of the defendant company at Linfield, Montgomery County, Pennsylvania, on the first day of May, 1915. At the time of the accident Howard S. Benner, the husband of the appellee, was driving across the tracks of the railroad company in a one-horse buggy about half-past five in the afternoon.
The public road over this crossing is forty-eight feet wide, and is an old, well-defined road. Just before the public road crosses the railroad tracks, at the right-hand approaching the crossing from the east, there is a spur or side-track leading from the freight station, which ends at the road with a bumper. At the time of the accident two or more box cars were standing close to the bumper, and this, with the freight house and freight shed, obscured the view at that point in the direction from which the train approached. The public highway crosses over five tracks. The first track is another siding, which is known as the Cold Storage Company siding, and runs in front of the station and down to the plant of the Cold Storage Company. The next track is the slow speed, northbound track. The third track is the fast speed, northbound track. The fourth track is the fast speed, southbound track. The fifth track is the slow speed, southbound track. At the time of the accident, according to the testimony, there were several box cars also on the cold storage siding; but the witnesses differ as to the precise location of these cars and the extent of the obstruction of the view.
John I. Riegel, a civil engineer called by the plaintiff, testifies, from accurate measurements, as to the conditions existing at the point of crossing. He says that in addition to the box cars which were on the cold storage siding there was some obstruction of the view by reason of the station and its baywindow, the telegraph office, and a tree in front of the telegraph office, as well as some other buildings. The testimony of Mr. Riegel is that if there were no cars on the cold storage siding a view of the tracks to the south can first be obtained at a point sixteen and one-half feet from the first rail of the cold storage siding, and that a train on the northbound, slow track could be seen six hundred and fifty feet away from the center of the crossing, and five hundred and fifty feet away on the northbound, fast track, on which the train which caused the accident was approaching.
If, therefore, Benner had stopped at a point sixteen and one-half feet from the first track he would have had some view of the track on which the train approached. The fact that his view was impeded by cars on the cold storage siding did not relieve him from the obligation to stop. It imposed a further duty to proceed with due care; but stopping in the first instance was absolutely essential.
Two witnesses were produced by the plaintiff, who saw the accident and the action of Benner as he approached the crossing. One, John Seeler, an intending passenger, was waiting on the station platform, on the southern end. This witness says that Benner drove up to the first track or siding, and that at a point actually on the tracks, with the horse's front feet between the first track and the slow, northbound track, he stopped for a few seconds. The top of the buggy was up. The witness could not tell just what Benner did after he drove on the track. After stopping for a few seconds he drove on at a slow walk; immediately after he started a fast express train came around the curve, and Benner was struck and killed.
The other witness, James Boyle, was coming from the direction opposite to Benner, and was about ninety feet from the first track on the other side of the railway, facing Benner. He saw Benner drive up on the track and stop, lean forward, look first to the south and then to the north, and, after a few seconds' pause, start to drive towards the witness. The testimony of both these witnesses concurs as to what actually happened. Neither of the witnesses heard any signal given by the train, nor did they hear the noise of the train until the engineer blew several short whistles, indicating the emergency that had arisen.
It is perfectly clear, therefore, from the testimony offered by the plaintiff that Benner did not stop, look and listen before he crossed any of the tracks. It is true that he stopped on the tracks, but that is not a compliance with the rule.
The learned judge of the court below submitted the case to the jury and entered judgment on the verdict, assigning as a reason therefor that as the accident did not happen on the cold storage siding the failure of Benner to stop before he entered on this track was not negligence. He further held that the question of whether or not he was negligent, as he was injured on one of the other tracks, under all the circumstances was to be submitted to the jury and determined by them. This is not the law. It is an absolute and unbending rule that a traveler upon the public highway must stop, look and listen at a point before he crosses any tracks. If he has done this and then proceeds, the question whether or not he has exercised proper care in crossing the railroad as he proceeds and whether it is necessary for him to stop again is a question for the jury. But if he fails to stop, look and listen before he goes on any track he is thereby convicted of negligence, and, no matter what the other circumstances, he cannot recover.
In Ihrig v. Erie Railroad Company, 210 Pa. 98, it is said:
What the appellee asks us to do in the present case is to make an exception of this case and to say that because Benner was not injured on the first track his failure to stop before crossing it did not produce the accident. This is bending the rule which has been declared to be unbending. No one can say that if he had stopped at a point before crossing the first track a sufficient length of time to make proper observation he would not have discovered the approach of the train, or if he had stopped and proceeded would have reached the scene of the accident soon enough to collide with the train that killed him. The fact that the first track was a siding did not relieve Benner from the obligation of the rule. This is clearly pointed out by the late Mr. Justice POTTER in Peoples v. Penna. R.R. Co., 251 Pa. 275.
It is further argued that Benner was relieved from the obligation to stop because of the obstructions which prevented his view before crossing the cold storage siding, but if this be true, another duty was imposed upon him. It was his duty to alight and go to a point where he could make a proper observation.
"Where a driver stops at a point where an obstruction prevents a proper view of the railroad he is about to cross, he must descend from his vehicle, and, if necessary, walk to a point where the prospect is clear": Siever v. Pittsburgh, C., C. & St. L.R.R. Co., 252 Pa. 1; Earl v. Philadelphia & Reading Railway Co., 248 Pa. 193; Mankewicz v. Lehigh Valley R.R. Co., 214 Pa. 386; Kinter v. Penna. R.R. Co., 204 Pa. 497.
We therefore hold that the plaintiff's case develops such evidence of negligence on the part of Benner, the decedent, that, notwithstanding the alleged negligence of the railway company, there can be no recovery.
The fifth, sixth and eighth assignments of error are sustained, and the judgment is reversed.
DISSENTING OPINION
MR JUSTICE SIMPSON, October 7, 1918:
The verdict and judgment below were for the plaintiff. This court now proposes to enter judgment for the defendant non obstante veredicto. In considering whether or not such a judgment ought to be entered, of course every fact and inference of fact, favorable to plaintiff, which a jury...
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