Bush v. Philadelphia & R. Ry. Co.
| Decision Date | 06 July 1911 |
| Docket Number | 351 |
| Parties | Bush v. Philadelphia & Reading Railway Company, Appellant |
| Court | Pennsylvania Supreme Court |
Argued March 7, 1911
Appeal, No. 351, Jan. T., 1910, by defendant, from judgment of C.P. Northampton Co., June T., 1909, No. 63, on verdict for plaintiff in case of S. R. Bush v. Philadelphia & Reading Railway Company. Affirmed.
Trespass to recover damages for injuries to an automobile. Before SCOTT, P.J.
The facts appear in the opinion of the Supreme Court.
Verdict for plaintiff for $4,792.50 and judgment thereon. Defendant appealed.
Errors assigned were in refusing judgment for defendant.
The assignments of error are overruled and the judgment is affirmed.
James W. Fox, with him Edward J. Fox, for appellant.
H. J Steele, with him Robert A. Stotz, for appellee.
Before FELL, C.J., BROWN, MESTREZAT, POTTER and STEWART, JJ.
This action was for the recovery of damages for the wrecking of plaintiff's automobile by a passing train on the defendant's road. The collision occurred at nighttime, on a public crossing on one of the streets in the borough of South Bethlehem. The machine was being driven by an employee of the plaintiff on the business of the latter. The finding of the jury is conclusive on the question of the defendant's negligence. No question is raised as to the sufficiency of the evidence to support such finding; nor are the instructions of the court on this branch of the case complained of. The only question is whether the court should have held as matter of law, that the negligence of the driver contributed to the accident. In his opinion filed refusing judgment non obstante, the learned trial judge speaks of the case as a close one; and so it is, upon its general facts but with respect to the question we are now considering we regard the case as falling clearly within a long line of cases which vindicate the final conclusion of the court. The testimony of the driver, if believed, shows literal compliance on his part with those rules of duty, the nonobservance of which this court has repeatedly said must be adjudged negligence per se. He stopped, looked and listened before entering upon the tracks with his machine. While none of the other witnesses called on behalf of the plaintiff would positively confirm all that the driver testified to none of them testified directly to the contrary of what he said, while all admitted that appearances as they were there presented to bystanders supported the driver's testimony. The place where he stopped his machine was about nine feet from the first track. Admittedly, before reaching this point he had passed...
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