Moses v. Northwestern Pennsylvania Ry. Co.
| Decision Date | 30 June 1917 |
| Docket Number | 67 |
| Parties | Moses, Appellant, v. Northwestern Pennsylvania Railway Company |
| Court | Pennsylvania Supreme Court |
Argued April 24, 1917
Appeal, No. 67, Jan. T., 1917, by plaintiff, from order of C.P. Erie Co., Feb. T., 1915, No. 77, refusing to take off nonsuit, in case of Teofila Moses v. Northwestern Pennsylvania Railway Company. Affirmed.
Trespass to recover damages for the death of plaintiff's husband. Before ROSSITER, J.
The opinion of the Supreme Court states the facts.
The trial judge entered a compulsory nonsuit which the court subsequently refused to take off. Plaintiff appealed.
Error assigned was in refusing to take off the nonsuit.
The order discharging the rule to take off the nonsuit is affirmed.
J. Orin Wait, with him M. Levant Davis, for appellant, cited Gress v. Braddock & Homestead St. Ry. Co., 14 Pa.Super. 87; Sheetz v. United Traction Co., 49 Pa.Super. 177; Ehrisman v. East Harrisburg City Pass. Ry Co., 105 Pa. 180; Raulston v. Philadelphia Traction Co., 13 Pa.Super. 412; Shaughnessy v. Consolidated Traction Co., 17 Pa.Super. 588; Manayunk & Roxborough Boarding & Livery Stable v. Union Traction Co., 7 Pa. Superior Ct. 104; Frame v. Electric Traction Co., 180 Pa. 49; Devlin v. Beacon Light Co., 198 Pa. 583; Schum v. Penna. R.R. Co., 107 Pa. 8; Longenecker v. Penna. R.R. Co., 105 Pa. 328; King v. Pitts., Harmony, Butler & New Castle Ry. Co., 242 Pa. 497.
W. P. Gifford, of Gunnison, Fish, Gifford & Chapin, for appellee. -- The deceased was guilty of contributory negligence: Yingst v. Lebanon & Annville St. Ry. Co., 167 Pa. 438; Hollihan v. Pittsburgh Rys. Co., 54 Pa.Super. 204; Smith v. Holmesburg, Tacony & Frankford Electric Ry. Co., 187 Pa. 451; Dunkle v. City Passenger Ry. Co., 209 Pa. 125; Orr v. Conestoga Traction Co., 246 Pa. 441; Callahan v. Traction Co., 184 Pa. 425.
Before MESTREZAT, POTTER, MOSCHZISKER, FRAZER and WALLING, JJ.
There is a public highway extending in a southerly direction from Erie City, known as the "Edinboro Road." Kearsarge is a hamlet located on this road about four miles south of the city. Defendant's single track suburban electric street railway is located in the west side of the highway, near the property line. John Wurst's farm is situated on that side of the highway, and his farm buildings are about one-fourth of a mile north of Kearsarge. His driveway extends easterly along the south side of the buildings, and to reach the highway passes over the railway by a right angle grade crossing. There is an orchard back of the buildings where picnics are held, called "Orchard grove picnic ground." And this driveway is used for farm purposes and also to reach the picnic ground.
On June 10, 1914, plaintiff's husband, Carl Moses, was driving a delivery wagon for the Perry Brewing Company, and about noon was going north from Kearsarge in a single wagon, and, as he turned to cross the track and enter this driveway, the front end of his wagon was struck by a northbound trolley car, under which he was thrown and fatally injured. He probably intended to drive to the orchard where a picnic was being held. The wagon was open, except a top over the seat. The track was straight, and, as he turned to cross it, he had an unobstructed view to the south for at least a quarter of a mile. The day was fair and there was no other person near the crossing and nothing to distract his attention from the approaching car, the sound of which was heard by persons about the farm buildings. The evidence tended to show that no gong was sounded or other warning given of the approach of the car. A young girl who saw the car said it was going pretty fast, and it ran eighty-seven feet after the collision. No witness was called who saw the accident.
At the conclusion of plaintiff's evidence the trial judge granted a compulsory nonsuit, and this appeal is from an order discharging a rule to strike off the same. The able argument of appellant's counsel has failed to satisfy us that error was thereby committed. In our opinion the deceased as matter of law was chargeable with contributory negligence. The rule is inflexible that one approaching a street railway must look for the movement of the cars immediately before walking or driving upon the track: Carson v. Federal Street and Pleasant Valley Ry. Co., 147 Pa. 219; McCracken v. Consolidated Traction Co. (No. 1), 201 Pa. 378; Flynn v. Pittsburgh Railways Co., 234 Pa. 335; Ervay v. Waverly, Sayre & Athens Tract. Co., 240 Pa. 440; Smathers v. Pittsburgh & Butler St. Ry. Co., 226 Pa. 212; Ehrisman v. East Harrisburg City Pass. Ry. Co., 150 Pa. 180. The law presumes that one about to cross a railroad track performs his duty, but that presumption is rebutted where a man walks or drives upon the track and is immediately struck by a locomotive or car that was in full view when it became his duty to look: Marland v. Pittsburgh & Lake Erie R.R. Co., 123 Pa. 487; Myers v. Balt. & Ohio R.R., 150 Pa. 386; Gangawer v. Philadelphia & Reading R.R. Co., 168 Pa. 265; Holden v. Penna. R.R. Co., 169 Pa. 1. The deceased had a clear and unobstructed view to the south for a quarter of a mile, and, by a glance in that direction as the horse neared the crossing, would have seen the approaching car, which was so near that he was struck by it before he had gone fifteen feet. The result indicates that he thoughtlessly committed himself to the act of crossing the track without any effort to ascertain the movement of cars thereon.
The presumption that a man used due care is rebutted where the undisputed evidence shows that he drove in front of an approaching street car, which was in full view for thirteen hundred feet, at a right angle crossing of a single track, in the open country at noonday, and with apparently nothing to distract his attention, and was struck by the car as he drove upon the track. As the deceased approached the crossing the car was in full view; if he did not see it he was negligent if he did see it and attempted to drive in front of...
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