Reigner v. Pennsylvania R. Co.
| Decision Date | 22 May 1917 |
| Docket Number | 335 |
| Citation | 101 A. 995,258 Pa. 257 |
| Parties | Reigner, Appellant, v. Pennsylvania Railroad Company |
| Court | Pennsylvania Supreme Court |
Argued February 6, 1917
Appeal, No. 335, Jan. T., 1917, by plaintiff, from order of C.P. Chester Co., April T., 1916, No. 25, refusing to take off nonsuit, in case of Emma K. Reigner v. The Pennsylvania Railroad Company. Affirmed.
Trespass to recover damages for the death of plaintiff's husband. Before HAUSE, J.
The opinion of the Supreme Court states the facts.
The court entered a compulsory nonsuit which it subsequently refused to take off. Plaintiff appealed.
Error assigned was in refusing to take off the nonsuit.
Truman D. Wade, for appellant. -- The defendant was clearly negligent: Hugo v. Balto. & Ohio R.R. Co., 238 Pa 594; Schmidt v. Philadelphia & Reading Ry. Co., 244 Pa. 205; Buckman v. Philadelphia & Reading Ry. Co., 232 Pa. 351; Bush v. Philadelphia & Reading Ry. Co., 232 Pa. 327; Beach v. R.R. Co., 212 Pa. 567; Bard v. Philadelphia & Reading Ry. Co., 199 Pa. 94; Cromley v. Penna. R.R. Co., 208 Pa. 445; Muckinhaupt v. Erie R.R. Co., 196 Pa. 213; Cohen v. Philadelphia & Reading R.R. Co., 211 Pa. 227; Schwarz v. Del., Lack. & Western R.R. Co., 211 Pa 625; Fritz v. N.Y., Chicago & St. Louis R.R. Co., 236 Pa. 447; Barthelmas v. Lake Shore & Mich. Southern Ry. Co., 225 Pa. 597; Roberts v. Del. & Hudson Canal Co., 177 Pa. 183; Johnson v. Philadelphia & Reading Ry. Co., 232 Pa. 378; Siever v. Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co., 252 Pa. 1; Seifred v. Penna. R.R. Co., 206 Pa. 399; Kinter v. Penna. R.R. Co., 204 Pa. 497; Ely v. Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co., 158 Pa. 233; Newhard v. Penna. R.R. Co., 153 Pa. 417; Mellinger v. Philadelphia & Reading R.R. Co., 18 Lanc. Law Rev. 369.
The presumption is that decedent stopped, looked and listened before crossing: Kreamer v. Perkiomen R.R. Co., 214 Pa. 219.
Whether decedent stopped at a proper place was a question of fact, which should have been submitted to the jury: Ellis v. Lake Shore & Mich. Southern Ry. Co., 138 Pa. 506; McNeal v. Pittsburgh & Western Ry. Co., 131 Pa. 184; Gangawer v. Philadelphia & Reading R.R. Co., 168 Pa. 265; Cromley v. Pa. R.R. Co., 208 Pa. 445.
A. M. Holding, for appellee. -- The decedent was guilty of contributory negligence; he did not stop at a proper place to look and listen before attempting to cross: Muckinhaupt v. Erie R.R. Co., 196 Pa. 213; Corcoran v. Penna. R.R. Co., 203 Pa. 380; Walsh v. Penna. R.R. Co., 222 Pa. 162; Gangawer v. Philadelphia & Reading R.R. Co., 168 Pa. 265; Gleim v. Harris et al., Receivers, 181 Pa. 387; Harvey v. Erie R.R. Co., 210 Pa. 97; Nagle v. Penna. R.R. Co., 43 Pa.Super. 400; Dehoff v. Nor. Cent. Ry. Co., 229 Pa. 192; McKahan v. Balto. & Ohio R.R. Co., 223 Pa. 1; Darbrinsky v. Penna. Co., 247 Pa. 177; Carroll v. Penna. R.R. Co., 12 W.N.C. 348; Bernstein v. Penna. R.R. Co., 252 Pa. 585.
Before BROWN, C.J., MESTREZAT, STEWART, MOSCHZISKER and WALLING, JJ.
We have here again to repeat what we have so often had occasion to say, that when one goes in front of a moving train of cars which he has had ample opportunity to see and avoid, he is guilty of contributory negligence as a matter of law. True it is that when one upon a railroad track is run down and killed by a passing train, the law will presume that before entering upon the track he did all that prudence for his safety would suggest, and what the law requires in all such cases -- that he stopped, looked and listened. But this presumption, like every other, gives way before admitted facts with which it is irreconcilable. The facts in the present case, as we derive them from the evidence adduced on the part of the plaintiff, are these: Plaintiff's husband was driving in an open buggy on the afternoon of December 29, 1915. As he approached a grade crossing of the defendant's company's tracks, four in number, and which he had been accustomed to cross and recross daily for at least six weeks prior to the accident, he stopped at a point ninety feet distant from the nearest rail on the track he would encounter first in any attempt to cross over. At this point, had he looked, he could have seen up the track on which the train that struck him was running, that is, the third track, 550 feet. At a point seventy-five feet beyond and twenty-five feet from the nearest track, he had a clear view of the track along which the train was approaching for 1,550 feet. Just before entering upon the first track, had he looked in the direction of the approaching train, he could have seen for a distance of three-quarters of a mile. Despite these opportunities thus afforded him to avoid the danger incident to the crossing, when upon the third track, in an attempt to cross over, he was struck by the engine of a passing train and instantly killed. Witnesses were called on behalf of the plaintiff who testified that as the train approached the crossing no signal of its approach was given, either by whistle, bell or otherwise, and for failure in this regard the effort was to charge the defendant with responsibility for the accident. Into the merits of this contention we need not enter. The appeal is from a judgment of nonsuit entered on the ground, as stated by the...
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