Flick v. Northampton & B. R. Co.

• Decision Date: 15 May 1922
• Docket Number: 360
• Citation: 274 Pa. 347,118 A. 250
• Parties: Flick v. Northampton & Bath Railroad, Appellant
• Court: Pennsylvania Supreme Court

118 A. 250

274 Pa. 347

Flick v. Northampton & Bath Railroad, Appellant

No. 360

Supreme Court of Pennsylvania

May 15, 1922

Argued April 24, 1922

Appeal, No. 360, Jan. T., 1922, by defendant, from judgment of C.P. Northampton Co., June T., 1919, No. 11, on verdict for plaintiff, in case of Wilson E. Flick v. Northampton &amp Bath Railroad Co. Reversed.

Trespass for personal injuries. Before McKEEN, J.

The opinion of the Supreme Court states the case.

Verdict and judgment for plaintiff for $7,836. Defendant appealed.

Error assigned was refusal of judgment for defendant n.o.v quoting record.

The judgment is reversed and here entered for defendant.

W. H. Kirkpatrick, of Kirpatrick & Maxwell, for appellant. -- Plaintiff is within the rule of Carroll v. R.R., 12 W.N.C. 348; Myers v. B. & O.R.R., 150 Pa. 386; Hess v. R.R., 181 Pa. 492; Bernstein v. R.R., 252 Pa. 581; Connerton v. Canal Co. 169 Pa. 339; Weikel v. R.R., 237 Pa. 524; Smith v. McAdoo, 266 Pa. 328; Lessig v. Transit Co., 270 Pa. 299.

While plaintiff's attention was not specifically directed to his prior inconsistent statement it was directed to the fact about which the statement was made and he was, on cross-examinaion, fairly and thoroughly taken over every inch of the ground and it is perfectly clear from his testimony that he meant to explain his earlier statement that he stopped by saying that he did not absolutely stop, but that the car was just so that it was going: Lynch v. Erie, 151 Pa. 380; Butler v. R.R., 126 Pa. 160; Parker v. Matheson M.C. Co., 241 Pa. 461.

C. F. Smith, of Smith, Paff & Laub, for appellee. -- When plaintiff's testimony is contradictory, so that on part of it he is entitled to go to the jury, and on the other he is not, the case must go to the jury, whose province it is to reconcile conflicting statements whether of the same or different witnesses, or to draw the line between them and say which shall prevail: Zenzil v. R.R., 257 Pa. 473; Ely v. R.R., 158 Pa. 233; Strader v. Monroe, 202 Pa. 626; Sloan v. Ry., 225 Pa. 52; Milligan v. Ry., 261 Pa. 344; Danko v. Rys., 230 Pa. 295; Black v. Transit Co., 239 Pa. 463; Keile v. Kahn, 30 Pa.Super. 416; Coleman v. Twp., 42 Pa.Super. 146; Smith v. Twp., 26 Pa.Super. 234; Parker v. Matheson M.C. Co., 241 Pa. 461; Collins v. Ry., 63 Pa.Super. 371; Webster v. Express Co., 69 Pa.Super. 547; Miller v. R.R., 58 Pa.Super. 558; Creachen v. Carpet Co., 209 Pa. 6; Clark v. Lancaster, 229 Pa. 161.

Before MOSCHZISKER, C.J., WALLING, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. CHIEF JUSTICE MOSCHZISKER:

Defendant's single track line of railroad, at the point here involved, crosses a public highway at grade; the railroad runs through open fields on both sides of the crossing, and, in the direction from which the train that did the damage in this case approached, the ground is level for a considerable distance, without trees, buildings or other obstructions. A person standing in the highway, 300 feet from the railroad, has an unobstructed view of at least half a mile up the track in the direction in question, and, when 10 or 15 feet from the track, he can see along it a much greater distance. There is a signal post erected at the crossing, with an automatic bell installed in it, and the usual "stop, look and listen" warning displayed. On the evening of December 5, 1918, a few minutes before seven o'clock, plaintiff, Wilson E. Flick, drove an automobile truck along this public highway. It was "dark," but no evidence was introduced to show the weather was other than clear. Flick was familiar with the crossing; when approaching it he slowed his truck, cut off the gas, and put the gear shift into neutral. At this time, defendant's train was also approaching. It consisted of: first, a locomotive, which was reversed, the tender being in front; then eight coal cars, five box cars, and, at the end, a passenger car. There was a light on the tender, at the head of the train, which is described by some of plaintiff's witnesses as having a lens about 10 inches in diameter, by others as "about 4 1/2 or 5 inches," "like the head light of an automobile, perhaps a little larger", but "smoked up" and "very dim", "an awful poor light for throwing light any distance." At the usual place, under the smoke-stack of the engine, there was another "regulation" headlight, which threw its rays upon the first box-car, to this degree illuminating the train as it went along. The automobile was struck and demolished upon its entry on the track, and the driver was bodily injured. Flick admitted he last looked when 15 feet from the track; at this point, he put his car into low gear, and had "no recollection of anything that happened after that." Plaintiff sued in trespass, alleging negligence on part of defendant, in failure to give warning, etc.; judgment was entered on a verdict in favor of the former, and the latter has appealed, contending that Flick's own testimony shows him guilty of contributory negligence.

It is difficult to conceive how, if plaintiff looked and listened, he missed seeing or hearing the approaching train, even though the automatic bell failed to ring and no other special or usual warning was given, as is claimed by him to be the fact; be this as it may, his evidence plainly proves an omission to stop, and, therefore, he is not entitled to recover against defendant, no matter what its degree of negligence. In this connection, defendant's proofs tend to show it free of negligence; but, we rule the present appeal on plaintiff's proofs alone, as, of course, we must, so far as the other testimony in the case fails to support them.

After Flick had testified...