Argued
April 13, 1894
Appeal
of Philadelphia & Reading Railroad Reported at 30 A. 822.
Appeals
Nos. 132 and 133, Jan. T., 1894, by defendant, from judgment
of C.P. Berks Co., Feb. T., 1892, No. 54, on verdict for
plaintiff. Affirmed.
Trespass
for personal injuries, etc. Before ENDLICH, J.
At the
trial it appeared that, on Dec. 9, 1891, Ammon Link was
killed while driving over a public crossing of
defendant's railroad, near Blandon. At the time of the
accident the deceased was driving a horse and wagon owned by
Simon Link. The first suit was brought on behalf of the
surviving child of Amnion Link to recover damages for his
father's death; and the second suit by Simon Link, to
recover the value of his horse and wagon.
The
evidence for plaintiff tended to show that the deceased
stopped and looked at a proper point before going upon the
track.
The
facts were stated as follows in an opinion discharging a rule
for a new trial, by ENDLICH, J.:
"The
accident which cost Ammon T. Link his life occurred at a
place near the station of Blandon, where the defendant's
tracks, running east and west, and a public highway, running
north and south, cross each other at grade, at about right
angles. The tracks crossing the highway are five in number.
On the extreme north of defendant's right of way, there
is a siding track, which I shall designate with the letter
(a); next comes the west-bound track (b); next the east-bound
main track (c), switching into the former (b) 550 feet east
of the crossing; next, another siding track (d), switching
into the east-bound main track (c) about 400 feet east of the
crossing; and, finally, a third short siding or switch track
(e). At a point 250 feet east of the crossing, the railroad
begins to curve and continues to do so for a distance of 300
feet, the curve made being a one degree curve. At the time of
the accident there was a caution-board at the road south of
the tracks, nearer to the latter than the caution-board now
there. Along the public road north of the railroad, a short
distance from the track, there was an electric gong fixed to
a post, at a height of about 15 feet, every wheel of a train
passing over the main track at the point of attachment, about
1450 feet to the east, being supposed to cause the bell to
ring. The whistling board is 2106 feet east of the crossing.
The testimony is conflicting as to how far eastward from the
crossing a train moving upon the track is visible to a person
traveling towards the railroad on the public highway from the
south, the immediate approach to the railroad being up-hill
whilst a little further south the highway is higher than the
railroad. The locomotive that struck the deceased came from
the east. The deceased, riding in an open wagon, approached
the crossing on the highway from the south. It is in evidence
on the part of the plaintiff, but denied by at least one of
defendant's witnesses, that, when about 11 to 25 feet or
paces from the railroad, he stopped, stood up in the wagon
looked up and down the track, sat down and drove slowly on.
Whether the place he stopped was the most favorable one for
the purpose of obtaining a view of trains coming from the
east, is a matter of dispute under the evidence. On the first
siding south of the east-bound track (c) -- siding (d) -- a
train was standing. It extended from the west side of the
crossing, where its engine was, to some distance east of the
public road, being cut at the crossing to permit travelers on
the highway to pass over the tracks, the open space between
the two sections of the train being variously stated to have
been from 24 to 57 feet. The four or five cars of the gravel
train on that portion of the siding east of the crossing were
loaded gondola cars, five or six feet high above the track
and a caboose or house-car. There was much conflicting
testimony as to the effect of the presence of these cars upon
the deceased's ability to see the approach of the train,
as well as upon the questions whether the electric gong
(which was testified to have rung so lightly at times that it
could not be heard 15 feet away; which the engineer of the
passenger train locomotive swore he could not hear because
the noise of the engine 'killed' it, and which was
shown to have been shortly afterwards subjected to repairs at
the hands of the defendant's employees; see R.R. v.
Henderson, 51 Pa. 315; R.R. v. McElwee, 67 Id. 311;
McKee v. Bidwell, 74 Id. 218) sounded at all,
whether the accustomed whistles were given by the engineer of
the passenger train, and whether he rang his bell. It seems,
however, to be a fact that the engine of the gravel train and
the engine of a freight train standing on the east-bound
track (c) both near the crossing, were, at the time, blowing
off steam, making considerable noise. The speed of the train,
at the precise moment when the deceased was struck, is given
as from 10 to 15 miles per hour, though, at the distance of
half a mile to the east, before slowing up, it would appear
to have been 35 to 40 miles. The collision occurred almost
immediately after the deceased emerged from between the two
sections of the gravel train, there being only the east-bound
track (c) between the siding (d) on which the gravel train
stood and the west-bound track (b), upon which the engine
struck the deceased's team just back of the horses, where
the pole joins the wagon."
When
Franklin Cooney, a witness for plaintiff, was on the stand he
was asked: "Q. How about that bell? Was it in working
order that day? A. I do not know whether it was in working
order that very day, but the day following, or two days
following, they had repairsmen there. Mr. Snyder: I object;
if he didn't see them that day, it is not evidence, it is
irrelevant. The Court: Admitted; exception for defendant. [5]
"By
Mr. Jacobs: Q. How was that? A. I noticed they were repairing
it a few days afterwards. Q. Was it the next day, or when
afterwards? A. The following day, I think. Q. They repaired
that bell? A. The man was there quite a time; previous to
that, I knew that at different times it rang so lightly when
a train was passing and I was 15 feet away, I could not hear
it; I tried it."
Defendant's
points were as follows:
"1.
There is no evidence in the case that the defendant was
guilty of any negligence which caused or contributed to the
accident which resulted in the death of Ammon T. Link, and
the verdict must be for the defendant." Declined. [1]
"2.
Under all the evidence of the plaintiff the verdict must be
for the defendant." Declined. [2]
"3.
Under all the evidence in the case the verdict must be for
the defendant." Declined. [3]
"4.
If the jury believe that the engineer of the train that
injured Ammon T. Link blew his whistle at the signal-board
which, according to the testimony, is about two thousand feet
away from the place of the accident, and that the signal so
given could be distinctly heard at and beyond the crossing,
there can be no recovery in this case, and the verdict must
be for the defendant. Answer: If, when the whistle was blown,
the deceased was in a situation to hear it, he must be
presumed to have heard it, and if he then went upon the
crossing he...
