Radziemenski v. Baltimore & O.R. Co.

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: FRAZER, J.
• Citation: 128 A. 735
• Parties: RADZIEMENSKI v. BALTIMORE & O.R. CO.
• Decision Date: 13 April 1925

128 A. 735

RADZIEMENSKI
v.
BALTIMORE & O.R. CO.

Supreme Court of Pennsylvania.

April 13, 1925.

Appeal from Court of Common Pleas, Allegheny County; James McF. Carpenter, Judge.

Action by Celia Radziemenski against the Baltimore & Ohio Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

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

128 A. 736

Ralph P. Tannehill, of Pittsburgh, for appellant.

Allen T. C. Gordon (of Gordon, Smith, Buchanan & Scott) and Clark Miller, both of Pittsburgh, for appellee.

FRAZER, J. Plaintiff's husband died as a result of injuries sustained in a collision with one of defendant's trains at a grade crossing in the city of Pittsburgh. The case was tried twice. The first trial resulted in a verdict for plaintiff, which was set aside by the lower court, and a new trial granted. At the second trial the jury disagreed, and the court below subsequently entered judgment for defendant on the ground that deceased was negligent in driving on the tracks ahead of a train, which he must have seen had he exercised due precaution for his safety.

Deceased was driving at night westward on Second avenue which crosses defendant's tracks diagonally at grade. The railroad, a double track line, at this point makes a slight curve, and Second avenue, after crossing the tracks, turns and parallels the railroad. According to a witness for plaintiff, deceased stopped at a place about 15 feet from the first track and looked for an approaching train. He then started forward and was struck on the second or east-bound track. The witness, after stating deceased had stopped half a minute or long enough to count 10 or 15, said "then the first thing I knew he started over the tracks and the engine came along and plowed right into him."

On the north side of the crossing there is a small watchman's box located near the curb of the street. As deceased approached on the north side of the highway, there was a point back some distance from the crossing where his view along the railroad tracks toward the east would be to some extent obstructed by this box. As he neared the tracks, however, a clear view was obtainable for a distance of at least half a mile. At the place the witness testified deceased stopped, which was about 15 feet from the tracks, there was nothing to obstruct his view of the headlight of the approaching train for at least that distance. While there was...