Schofield v. Director General of Railroads

• Decision Date: 26 February 1923
• Docket Number: 6
• Citation: 120 A. 449,276 Pa. 508
• Parties: Schofield, Appellant, v. Director General of Railroads
• Court: Pennsylvania Supreme Court

120 A. 449

Schofield, Appellant, v. Director General of Railroads

276 Pa. 508

No. 6

Supreme Court of Pennsylvania

February 26, 1923

Argued February 5, 1923

Appeal, No. 6, Jan. T., 1923, by plaintiff, from order of C.P. Delaware Co., June T., 1919, No. 932, refusing to take off nonsuit in case of Hannah Schofield v. Director Gen. of Railroads. Affirmed.

Trespass for death of plaintiff's husband. Before BROOMALL, J.

The opinion of the Supreme Court states the facts.

Nonsuit refusal to take off. Plaintiff appealed.

Error assigned, inter alia, was order, quoting record.

The order is affirmed.

Isaac A. Pennypacker, with him Albert Dutton MacDade, for appellant. -- Negligence of the driver in failing to stop is not imputed to defendant: Dean v. R.R., 129 Pa. 514; Azinger v. R.R., 262 Pa. 242; Hardie v Barrett, 257 Pa. 42; Lancaster v. Reese, 260 Pa. 390; Minnich v. Transit Co., 267 Pa. 200; Proctor v. Transit Co., 235 Pa. 373.

Howard E. Hannum, for appellee. -- Under the circumstances as proven in this case by plaintiff's witnesses, the driver of the truck was the servant, and the decedent was his master on the trip on which Schofield was killed: McCollagan v. R.R., 214 Pa. 229; Kelley v. R.R., 270 Pa. 426; Carson v. R.R., 147 Pa. 219; Proctor v. Transit Co., 235 Pa. 373; McLaughlin v. Ry., 252 Pa. 32; Vocca v. R.R., 259 Pa. 42; Kirschbaum v. Transit Co., 73 Pa.Super. 536; Renner v. Tone, 273 Pa. 10.

Before FRAZER, WALLING, SIMPSON, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE WALLING:

Market Street extends through the Borough of Marcus Hook, Delaware County, in a northerly and southerly direction, and is crossed at grade by defendant's system of five tracks; the one most northerly being a siding and the next a westbound passenger track. The view to the east, of a traveler approaching the crossing from the north in a motor car, is cut off by buildings, a hedge and, at the time in question, by a box car standing on the siding, so that a westbound engine on the passenger track could not be seen by the traveler so approaching until he was practically in front of it. The deceased, Richard G. Schofield, had some coal in a yard on the south side of the railroad which he desired transferred to his residence on the north side, and at his request a friend named Vernon, who could drive a motor truck, borrowed one and, with the help of the deceased and his son, began transferring the coal on September 13, 1918. On the next morning Vernon drove to Schofield's residence, where the latter boarded the truck, and, while crossing the tracks for another load of coal, was killed by a westbound express train on the passenger track above mentioned. This suit, brought to recover for the death of Schofield, ended in a compulsory nonsuit, which the trial court refused to take off; hence, this appeal by plaintiff.

Vernon, the driver, was guilty of contributory negligence, for admittedly he drove the truck upon the railroad tracks, without stopping to look or listen; he and his wife, who was with him, so testify. That the motion of the truck was slackened, but not brought to a stop, while shifting the gear, was not intended as a compliance with the stop, look and listen rule, and cannot be given that effect: see Flick v. Northampton & Bath R.R., 274 Pa. 347.

Furthermore, the failure to stop, look and listen was not excused by the fact that the crossing gates were up: Greenwood v. Railroad Co., 124 Pa. 572; Kipp v. Central R.R. Co. of New Jersey, 265 Pa. 20, 24; Serfas v. Lehigh & New Eng. R.R. Co., 270 Pa. 306, 309.

Vernon was in Schofield's employ in transferring the coal therefore the former's negligence is chargeable to the latter and defeats plaintiff's action: Carson v. Federal St., etc., Ry. Co., 147 Pa. 219; Schultz v. Old Colony Street R. Co., 8 L.R.A. ...