Joseph v. Pittsburgh & W. V. Ry. Co.

• Decision Date: 26 November 1928
• Docket Number: 143
• Citation: Joseph v. Pittsburgh & W. V. Ry. Co., 144 A. 139, 294 Pa. 315 (Pa. 1928)
• Parties: Joseph v. Pitts. & W. V. Ry., Aplnt
• Court: Pennsylvania Supreme Court

144 A. 139

294 Pa. 315

Joseph v. Pitts. & W. V. Ry., Aplnt

No. 143

Supreme Court of Pennsylvania

November 26, 1928

Argued September 27, 1928

Appeal, No. 143, March T., 1928, by defendant, from judgment of C.P. Allegheny Co., Jan. T., 1925, No. 1143, on verdict for plaintiff, in case of Frank Joseph v. Pittsburgh & West Virginia Railway Co. Reversed.

Trespass for personal injuries. Before EVANS, P.J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff for $5,000. Defendant appealed.

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

The assignments of error are sustained, the judgment is reversed and here entered for the defendant.

Albert B. Graver, with him John S. Wendt, of Wendt, Graver &amp Richardson, for appellant. -- A passenger in an auto, when approaching a place of danger such as a railroad crossing which is known or manifest to said passenger, is bound, along with the driver of the automobile, to use due care and to be vigilant and to observe, to avoid impending danger Dunlap v. Traction Co., 248 Pa. 130; Martin v. R.R., 265 Pa. 282; Laudenberger v. Transit Co., 261 Pa. 288; Deane v. R.R., 129 Pa. 514; Hill v. Transit Co., 271 Pa. 232; Beemer v. R.R., 181 Iowa 642; Mensch v. R.R., 274 Pa. 356; Hepps v. R.R., 284 Pa. 479; Seiwell v. Hines, 273 Pa. 259.

Charles G. Notari, with him Rody P. Marshall and Thomas M. Marshall, for appellee. -- Where a person about to go on a business errand is by chance invited by the owner and driver of an automobile, who is also going in that direction, to go along with him, such person is not engaged in a common purpose with the driver so as to impute the negligence of the driver to him.

Where a guest riding in the front seat of an automobile is about to traverse a railroad crossing and notices the driver stop, look and listen and he himself looks and listens and neither saw nor heard a train, and after starting again continues to exercise reasonable vigilance, he is not guilty of any negligence as a matter of law: Jerko v. Ry., 275 Pa. 459; Vocca v. R.R., 259 Pa. 42; Martin v. R.R., 265 Pa. 282; Minnich v. Traction Co., 267 Pa. 200; Mills v. R.R., 284 Pa. 605; Carlin v. P.R.T. Co., 290 Pa. 288.

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

OPINION

MR. JUSTICE SADLER:

The plaintiff, Joseph, was injured at a grade crossing of defendant's railroad on July 29, 1924, and suffered injury for which compensation was asked in the proceeding now before us for review. A verdict was rendered in his favor, which the court below refused to set aside, and from the judgment entered this appeal was taken.

Briefly stated, the salient facts shown by the record are as follows: Sado, the owner of an automobile, intended to drive to the Town of Morgan on a business trip. The plaintiff wished to reach the same point to deliver an electric sweeper to a customer, and Sado offered to take him along. The car was driven on an improved highway to a cross-road leading to their destination. The latter passed over the single-track railroad of the defendant. Reaching the diverging driveway, about nine in the morning, on the day in question, the automobile was turned practically at right-angles to the south, and onto the dirt thoroughfare. Knowing of the track in front, the automobile was stopped, according to plaintiff's testimony, about ten feet from the first rail, and both driver and guest looked and listened, but neither heard nor saw a train approaching. It was then started forward, and though admittedly a view of the track to the west was unobstructed for from 525 to 600 feet, and the day was bright and clear, no engine or cars were observed. The grade to the crossing was steep, but the car, traveling at five miles an hour, as was testified, would not have required more than two or three seconds to reach the first rail. The train, moving at forty miles an hour, could not have arrived at the point of collision, after coming within the line of vision, until practically eight or nine seconds had gone by.

Though beyond question within sight for the distance mentioned, the plaintiff, who was looking, as he stated, did not see the oncoming engine until it had reached a point from forty to sixty feet distant, or, as the driver said, 200 feet away. At that time the front wheels of the auto had just reached the first rail. Joseph then told Sado to "hurry up" for the train was coming, but the crossing was not cleared in time, and the accident happened. If the occupants of the car failed to observe the train, they were not looking, or had determined to run the risk of passing in front of it. The few feet from the place of stopping was on an eighteen per cent upgrade, and, with a car moving at not more than five miles an hour, it could have been brought to a standstill almost instantaneously, if cognizance had been taken of the apparent danger. Instead, the automobile went forward and had reached only the first rail, when both driver and passenger admit they observed the oncoming train.

The proof of negligence by defendant depended solely on the evidence offered to show that no whistle was blown until the plaintiff first saw the engine. Though disputed, the testimony submitted to establish this fact in question was sufficient to carry the case to the jury to decide the controversy raised, and, if it were the only matter involved, the finding of a failure to give a proper signal and the verdict rendered could be sustained, but, under all of the facts presented, the apparent contributory negligence of the plaintiff made binding instructions for the defendant imperative. In our consideration of the case all of the competent testimony offered by the plaintiff must be regarded as disclosing the true version of the occurrence. The claimant is likewise entitled to the benefit of all proper inferences which may be drawn therefrom in his favor (Grimes v. P.R.R. Co., 289 Pa. 320), and, in discussing the relative rights of the parties, the record has been examined with this principle in view.

Appellant first raises the question as to whether Joseph must be considered as a guest of the driver Sado. It will be remembered that the latter had invited the former to accompany him on the journey, and there was no evidence that Sado was the agent of plaintiff to take him to the designated point, as in Hepps v. P. & L.E.R.R. Co., 284 Pa. 479, referred to by appellant, nor was there testimony to prove the parties were engaged upon a common purpose, so as to make the so-called "guest" rule inapplicable. To charge with contributory negligence on the ground that the party injured was engaged in a joint undertaking, something more must be shown than that the parties were riding together. It must further appear that the passenger had some voice in the control of the vehicle, so as to make it subject to common command, as well as possession. In itself, the mere acceptance of an invitation to ride for pleasure (or as an accommodation) does not ordinarily constitute a joint enterprise, because there is no equal right in governing the conduct of the undertaking: Alperdt v. Paige, 292 Pa. 1, 6.

Treated as a guest, the rule is well established that the plaintiff was not bound to the same degree of diligence as the driver of the car, and the negligence of the latter is not to be imputed to him: Nutt v. P.R.R. Co., 281 Pa. 372; Jerko v. B., R. & P. Ry. Co., 275 Pa. 459. He may assume that the operator will perform his duty (Loughrey v. P.R.R. Co., 284 Pa. 267; Davis v. American Ice Co., 285 Pa. 177), and is not bound to keep the same watchful attention of the roadway in front. So, he will not be held chargeable with negligence in approaching a crossing of which he knew nothing (Eline v. W.M. Ry. Co., 262 Pa. 33), or for inaction, or failure to make observations, when there was no reason to expect, from the attending circumstances, the imminence of any danger (Kilpatrick v. P.R.T. Co., 290 Pa. 288; Mills v. P.R.R. Co., 284 Pa. 605), but he is nevertheless not relieved from taking due precautions for his own protection from negligent acts which he observes, or should have seen, had he been duly diligent: Alperdt v. Paige, supra, p. 7. "In the general run of things, a guest's attention is not fixed on the roadway or the driving. He is usually engaged in conversation with those about him, or in observing the country, or passing objects. But even under these...