Kehoe v. Philadelphia & Reading Railway Company
| Decision Date | 18 March 1912 |
| Docket Number | 104 |
| Citation | 84 A. 406,235 Pa. 429 |
| Parties | Kehoe v. Philadelphia & Reading Railway Company, Appellant |
| Court | Pennsylvania Supreme Court |
Argued February 5, 1912
Appeal, No. 104, Jan. T., 1911, by defendant from judgment of C.P. Bucks Co., Feb. T., 1910, No. 9, on verdict for plaintiff in case of Mary Kehoe, the Surviving Parent of Julia F. Kehoe and Julia F. Kehoe, a Minor, in her own right v. Philadelphia & Reading Railway Company. Affirmed.
Trespass to recover damages for personal injuries. Before STOUT, P.J.
The facts concerning the accident are stated in the opinion of the Supreme Court.
Verdict and judgment for Mary Kehoe for $3,253, and for Julia F Kehoe for $6,488.33. Defendant appealed.
Errors assigned, were various instructions and refusal of binding instructions for the defendant.
There was evidence in the cause which required the court to submit it to the jury and, finding no error in the charge, the judgment is affirmed.
Harman Yerkes, for appellant. -- There was no negligence on the part of the defendant: Bard v. Ry. Co., 199 Pa. 94; Urias v. R.R. Co., 152 Pa. 326; Anspach v. Ry Co., 225 Pa. 528; Walsh v. R.R. Co., 222 Pa. 162; Lonzer v. R.R. Co., 196 Pa. 610; Hauser v. R.R. Co., 147 Pa. 440; Paul v. Ry. Co., 231 Pa. 338; Wood v. Penna. R.R. Co., 177 Pa. 306; Bornscheuer v. Trac. Co., 198 Pa. 332.
The plaintiff was guilty of contributory negligence: Dickey v. Tel. Co., 46 Me. 483; Del., Lack & W.R.R. Co. v. Cadowm, 120 Pa. 559; Catawissa R.R. Co. v. Armstrong, 49 Pa. 186; Loughrey v. R.R. Co., 201 Pa. 297; Hauser v. Cent. R.R. of N.J., 147 Pa. 440; Blotz v. R.R. Co., 212 Pa. 154; Ellis v. R.R. Co., 216 Pa. 415; Carroll v. R.R. Co., 12 W.N.C. 348; Myers v. R.R. Co., 150 Pa. 386; Hamilton v. R.R. Co., 227 Pa. 137.
Grim & Grim, for appellees. -- The case was for the jury: Quigley v. Del. & H. Canal Co., 142 Pa. 388; Longenecker v. R.R. Co., 105 Pa. 328; Cromley v. R.R. Co., 211 Pa. 429; Rottmund v. R.R. Co., 225 Pa. 410; Bond v. R.R. Co., 218 Pa. 34; Bickel v. R.R. Co., 217 Pa. 456; Jones v. R.R. Co., 202 Pa. 81; Baughman v. R.R. Co., 92 Pa. 335; Brown v. Penna. R.R. Co., 15 Phila. 321; Thirteenth & Fifteenth Sts. Pass Ry. Co. v. Boudrou, 92 Pa. 475; Creed v. Pa. R.R. Co., 86 Pa. 139; Goodman v. Canal Co., 167 Pa. 332; Behling v. Pipe Lines, 160 Pa. 359; Bard v. Ry. Co., 199 Pa. 94; McIlhenney v. Phila., 214 Pa. 44; Rick v. Wilkes-Barre, 9 Pa.Super. Ct. 399; Erie v. Magill, 101 Pa. 616; Sheridan v. Palmyra Twp., 180 Pa. 439; Kingston Twp. v. Gibbons, 18 W.N.C. 334; Keller v. Ry. Co., 214 Pa. 82; Miller v. Lewistown Elec. Light, Heat & Power Co., 212 Pa. 593; Carroll v. Penna. R.R. Co., 12 W.N.C. 348; McNeal v. Ry. Co., 131 Pa. 184; Kasarda v. R.R. Co., 222 Pa. 146; Evans v. Brookville Boro., 5 Pa.Super. Ct. 298; Forker v. Sandy Lake Boro., 130 Pa. 123.
Before FELL, C.J., BROWN, MESTREZAT, ELKIN and MOSCHZISKER, JJ.
This is an action of trespass brought to recover damages for injuries sustained by Julia F. Kehoe, the minor plaintiff, on the evening of August 14, 1909, while she was attempting to cross the defendant's tracks on Market street in the borough of Perkasie, Bucks county. At this point there are two tracks making substantially a right-angled crossing with Market street. The tracks run north and south, and the passenger station is about one hundred and fifty or two hundred feet south of the street. The entire width of the street is forty feet, and the crossing is made by long planks running parallel with the rails and extending the full width of the street. The space between the planks is filled with gravel. There was no walk between the outer rails of the two tracks on either side of the street devoted solely to the use of pedestrians. In other words, there was no part of the street set apart for use by pedestrians in crossing the tracks. The part of the street occupied by the railroad crossing is slightly elevated, and is approached on an incline on either side of the tracks.
On the evening of the accident, Julia Kehoe passed the crossing from west to east to do some shopping. As she approached the crossing from the east on her return and was a few feet from the rails, a heavy freight train was passing on the south-bound track. The stationary signal bell was ringing. After the rear of the train had passed the crossing about one hundred or one hundred and fifty feet, she testifies that she approached the crossing, stopped, looked and listened and neither seeing nor hearing an approaching train proceeded on her way. The heel of her shoe caught in the space between a plank and the west rail of the north-bound track. At that moment she looked around and saw a freight engine approaching from the south, and before she could extricate her foot the engine passed and her foot was severely injured. She says she was about in the middle of the highway, while some of the defendant's testimony shows her to have been north of that point at the time she was injured.
This action was brought to recover damages for the injury the girl sustained by the accident. The negligence alleged was the manner in which the train approached the crossing. It is averred that the locomotive had no headlight or any other light to indicate its presence; that no signals, whistles or any other noise or light or method was used by the defendant to warn the girl of the approach of the engine and train, and that the stationary signal bell was not ringing.
It was the duty of the defendant to give notice of the approach of its train to this crossing, and if it failed as averred in the statement, it was guilty of negligence. We have examined the evidence with care and are satisfied that it was sufficient to send the case to the jury on the question of the defendant's negligence. The testimony of the girl fully sustained the averments in her statement as to the manner in which the locomotive approached the crossing. She introduced other witnesses who corroborated her story. She and they also testified that the night was not only very dark but was misty and foggy; that there were no lights burning at the passenger station which is about one hundred and fifty or two hundred feet south of the crossing. Both the south-bound and north-bound trains were freight trains and of course had no occasion to stop at the passenger station. If the testimony of the girl is believed, she stopped and listened immediately before she attempted to make the crossing. She testifies positively that no signal whatever was given of an approaching train and she is corroborated by some witnesses whose testimony is equally positive as to the failure of the...
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