Martin v. Pennsylvania Railroad Co.

• Decision Date: 21 June 1919
• Docket Number: 277
• Citation: 265 Pa. 282,108 A. 631
• Parties: Martin, Appellant, v. Pennsylvania Railroad Company
• Court: Pennsylvania Supreme Court

108 A. 631

265 Pa. 282

Martin, Appellant, v. Pennsylvania Railroad Company

No. 277

Supreme Court of Pennsylvania

June 21, 1919

Argued May 12, 1919

Appeal, No. 277, Jan. T., 1919, by plaintiff, from judgment of C.P. Fayette Co., Sept. T., 1915, No. 532, refusing to take off compulsory nonsuit in case of Pearl Belle Martin v Pennsylvania Railroad Company. Affirmed.

Trespass to recover damages for death of plaintiff's husband. Before VAN SWEARINGEN, P.J.

The court granted a compulsory nonsuit on account of decedent's contributory negligence, which it subsequently refused to take off. Plaintiff appealed.

Error assigned was in refusing to take off nonsuit.

The assignments of error are overruled and the judgment is affirmed.

E. C Higbee, of Sterling, Higbee & Matthews, with him George Patterson, for appellant, cited: Azinger v. Pa. R.R., 262 Pa. 242.

R. W. Playford, of Playford & Phillips, for appellee, cited: Eline v. West Maryland Ry., 262 Pa. 33; Hardie v. Barrett, 257 Pa. 42; Laudenberger v. Easton Transit Co., 261 Pa. 288.

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

OPINION

MR. JUSTICE WALLING:

This case grows out of a grade crossing accident. Defendant's railway extending southerly from Connellsville crosses the public highway in question at grade, with a main track and a siding, the latter being about fifteen feet west of the former. To the west of the siding the view to the north is obstructed by a building and that to the south by a high board fence along the south side of the highway, which extends east to within twenty-five feet of the main track. The eastbound traveler has a good view of the tracks to the south while passing over the twenty-five feet. The highway is paved with brick and practically level west of the crossing.

On the afternoon of August 22, 1914, James Coldren took his Ford car and with three other men, including Clarence Martin, plaintiff's husband, drove from Collier to Scottdale to witness a ball game. On the return home they came east by this highway, Coldren driving the car and Martin sitting at his right on the front seat. It was broad daylight, and, as they approached the crossing, so far as appears, the railroad tracks in front of them for three hundred feet were in plain sight. They were going about ten or twelve miles an hour and at that speed, without stopping or even hesitating to ascertain the movement of trains upon the tracks, drove past the end of the fence, over the side track and the space between the tracks and as the front end of the car approached the main track it collided with a rapidly moving northbound engine thereon, by which Mr. Martin was fatally injured. The driver of the automobile totally ignored the rule requiring the traveler to stop, look and listen before going upon a railroad track, and he was not requested to do so or cautioned by Martin or by either of the other passengers. Just an instant before the collision, and when too late to avoid it, Martin called the driver's attention to the oncoming train. The four men were engaged in a common purpose; however, it does not appear that the deceased was familiar with the crossing. There was evidence of defendant's negligence, but on the ground of Martin's contributory negligence the court below granted a compulsory nonsuit; and from its order refusing to take off the same this appeal was taken.

The holding is in harmony with our decisions, for while a passenger is not chargeable with the driver's negligence he is responsible for his own lack of reasonable care. The men were engaged in a common purpose and it was the duty of each to use ordinary care to safeguard the party and warn of approaching danger: Laudenberger v. Easton Transit Co., 261 Pa. 288; Dunlap v. Phila. R.T. Co., 248 Pa. 130. The opinion of the court by Mr. Justice MOSCHZISKER in Hardie et ux. v. Barrett, 257 Pa. 42, 46, says, "The rule is well established that, when possible dangers, arising out of the negligent operation of a hired vehicle or a conveyance in which one is riding as an invited guest, are manifest to a passenger, who has any adequate opportunity to control the situation, if he sits by without protest and permits himself to be driven on to his injury, this is negligence which will bar recovery." A passenger is chargeable with the driver's negligence in so far as he concurs therein, and failure to protest against reckless driving amounts to a concurrence. "A passenger who, having opportunity, fails to warn the driver of a known danger, and to protest against incurring it is guilty of negligence. . . . If he [the passenger] knew they were approaching this grade crossing, or by the exercise of reasonable care should have known it, in time to warn Mr. Rogers [the driver] thereof and failed to do so he was negligent. In other words, a passenger who, knowingly and without protest, suffers the chauffeur to drive an automobile upon a railroad track without stopping to look and listen is negligent": Eline v. Western Maryland Ry. Co., 262 Pa. 33, 36. In Henderson v. Pennsylvania R. Co., 179 F. 577, it is stated (pp. 582-583) that, "It follows, therefore that Henderson [the passenger] was under obligations to take due care of his own safety. He was not a passenger for hire. He was engaged in the common purpose of a pleasure ride with the driver of the machine. He knew they were approaching a railroad crossing. Being free from the engrossing work of operating the machine, and occupying a seat beside the driver, he was in an even better situation than Brommer [the driver] to look out for the safety of the machine. . . . And because Henderson joined with Brommer in a deliberate violation of this salutary rule [to stop, look and listen], we must hold him guilty of contributory negligence."

The failure to stop, look and listen before crossing a railroad track is the violation of a fixed legal duty and a passenger who knowingly and without protest suffers the driver to do so is negligent. In the present case Martin sat on the front seat where his means of observation were equal to the driver's; whether or not he was familiar with the locality was not important as the tracks crossed the brick roadway in front of him, and he permitted the car to be driven over the siding and on toward the main track without protest and only called attention to the train when the collision was inevitable. That Martin, passing along the highway that bright afternoon, saw or by the exercise of reasonable care should have seen the crossing in time to warn of the danger, is manifest; the evidence warrants no other conclusion. True, in case of death the presumption is that the deceased exercised due care, but here that is overcome by plaintiff's evidence.

In Vocca v. Penna. R.R. Co., 259 Pa. 42, plaintiff testified that before reaching the crossing he called upon the driver to stop, and we held the question of contributory negligence was for the jury; and the same was held as to the passenger in Azinger v. Pa. R.R. Co., 262 Pa. 242, where an automobile approached the track on a downgrade and the evidence was conflicting as to local conditions and as to the distance the track at the crossing was visible. And we there hold that a passenger is not bound to the same high degree of care as the driver and the fact that the former's attention is momentarily drawn to the side of the road does not necessarily convict her of contributory negligence. In other words, the passenger is not required to exercise the same high degree of care and constant watchfulness as the chauffeur; nevertheless, he must exercise a reasonable degree of watch-fulness and when occasion requires warn the driver of threatened danger, and he may, as matter of law, be chargeable with contributory negligence even where he has done nothing. For example, it would be negligence for a passenger not to warn the chauffeur whom he saw about to drive the car down a precipitous bank or in front of an approaching train; and the same is true where the passenger sees the chauffeur violating a fixed rule of law. We are not...