Howard v. Baltimore & Ohio Railroad Co.
| Decision Date | 06 January 1908 |
| Docket Number | 92 |
| Parties | Howard v. Baltimore & Ohio Railroad Company, Appellant |
| Court | Pennsylvania Supreme Court |
Argued October 24, 1907
Appeal, No. 92, Oct. T., 1907, by defendant, from judgment of C.P. Washington Co., Aug. T., 1906, No. 111, on verdict for plaintiff in case of J.E. Howard v. The Baltimore & Ohio Railroad Company. Affirmed.
Trespass to recover damages for personal injuries. Before TAYLOR, J.
The facts are stated in the opinion of the Supreme Court.
Verdict and judgment for plaintiff for $2,708.33. Defendant appealed.
Error assigned among others was in refusing binding instructions for defendant.
The judgment is affirmed.
Norman E. Clark, with him Winfield McIlvaine, for appellant. -- One who is struck by a moving train which was plainly visible from the point he occupied when it became his duty to stop look and listen, must be conclusively presumed to have disregarded that rule of law and of common prudence and to have gone negligently into an obvious danger: Myers v. B & O.R.R. Co., 150 Pa. 386; Gangawer v. Phila. & Reading R.R. Co., 168 Pa. 265; Harvey v. Erie R.R. Co., 210 Pa. 95; Blotz v. R.R. Co., 212 Pa. 154; Sellers v. Ry. Co., 214 Pa. 298; Ellis v. Penna. R.R. Co., 216 Pa. 415; Sheehan v. R.R. Co., 166 Pa. 354; Holden v. R.R. Co., 169 Pa. 1.
T. F. Birch, for appellee. -- The question of contributory negligence cannot be treated as one of law, unless the facts and inferences to be drawn from them are free from doubt. If there is doubt as to either the case is for the jury: Kuntz v. Railroad Co., 206 Pa. 162; Kelly v. Traction Co., 204 Pa. 623; Meyers v. Central R.R. Co. of N.J., 218 Pa. 305; Bickel v. Penna. R.R. Co., 217 Pa. 456.
Before MITCHELL, C.J., FELL, BROWN, MESTREZAT, POTTER and STEWART, JJ.
This was an action to recover damages for injuries sustained by plaintiff, to himself and his property, while crossing the tracks of the defendant company at grade, near Finleyville Pa. The appellant does not question the sufficiency of the evidence as to the negligence of the employees of the railroad company, but it contends that the plaintiff was guilty of contributory negligence. The trial judge declined to give binding instructions for the defendant, and submitted the questions of negligence and contributory negligence to the jury. The only question presented by this appeal, is whether under the testimony, the court below should have held as matter of law that the plaintiff by his negligence contributed to the happening of the accident. We have said many times that the rule set forth in Carroll v. Railroad Co., 12 W.N.C. 348, is in its nature only applicable to clear cases. It applies only where a person enters upon a railroad track, and is struck by a moving train so instantaneously as to raise a legal presumption that he did not stop, look and listen, and to rebut any presumption that he had done so. Where there is doubt as to negligence upon the part of the plaintiff, the case is for the jury. In the present case, it appears from the evidence that the horses of the plaintiff, instead of being struck immediately upon going upon the track, were not struck at all, but his wagon was struck at the rear end, just as it was leaving the track. The witnesses for plaintiff testified that he stopped, looked and listened at...
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