Smith v. McAdoo

• Decision Date: 02 February 1920
• Docket Number: 100
• Citation: 266 Pa. 328,109 A. 759
• Parties: Smith, Administratrix, Appellant, v. McAdoo, Director General
• Court: Pennsylvania Supreme Court

109 A. 759

266 Pa. 328

Smith, Administratrix, Appellant, v. McAdoo, Director General

No. 100

Supreme Court of Pennsylvania

February 2, 1920

Argued January 9, 1920

Appeal, No. 100, Jan. T., 1920, by plaintiff, from judgment of C.P. No. 4, Philadelphia Co., Dec. T., 1917, No. 4882, on verdict which the court directed for the defendant in the case of Mae J. Smith, Administratrix of Benjamin Smith deceased, v. William G. McAdoo, Director General of Railroads. Affirmed.

Trespass to recover damages for death of plaintiff's decedent. Before FINLETTER, J.

After the close of defendant's testimony the trial judge directed a verdict for defendant.

The court refused a new trial and judgment was entered for defendant. Plaintiff appealed.

Errors assigned were giving binding instructions for defendant entering judgment for defendant and ruling on evidence.

The judgment is affirmed.

I. G. Gordon Forster, of Evans, Forster & Wernick, for appellant. -- There is no rule of law which requires the traveler who has crossed the first track to stop again between the tracks: Penna. R.R. v. Garvey, 108 Pa. 369; Waltosh v. Penna. R.R., 259 Pa. 372; Benner v. Phila. & R. Ry., 262 Pa. 307.

The presumption is that the deceased acted with due care: Hugo v. B. & O.R.R., 238 Pa. 594; Benner v. P. & R. Ry., 262 Pa. 307.

The "safety gates" at the crossing were raised which in itself was an invitation to the deceased to cross: Messinger v. Penna. R.R., 215 Pa. 497; Siever v. Pgh., C., C. & St. L. Ry., 252 Pa. 1.

Francis B. Biddle and Sharswood Brinton, for appellee. -- Where it is evident that had the deceased stopped, he must have seen the oncoming locomotive, in spite of evidence to the effect that he stopped, looked and listened, it is the duty of the trial judge to enter binding instructions for defendant: Carroll v. Penna. R., 12 W.N.C. 348; Myers v. B. & O.R.R., 150 Pa. 386; Beynon v. Penna. R.R., 168 Pa. 642; Sullivan v. N.Y., L.E. & W.R.R., 175 Pa. 361; Hess v. Williamsport, etc., R.R., 181 Pa. 492; Goller v. B. & O.R.R., 229 Pa. 412; Paul v. Phila. & Reading R.R., 231 Pa. 338; Bernstein v. Penna. R.R., 252 Pa. 581.

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

OPINION

MR. JUSTICE MOSCHZISKER:

The court below entered judgment for defendant upon a directed verdict, and plaintiff has appealed.

Early in the morning of February 16, 1918, Benjamin Smith, plaintiff's decedent, was driving a taxicab south on 17th street, Philadelphia; when he came to the railroad tracks at Washington avenue, a collision occurred between his car and one of defendant's locomotives, causing injuries to Smith from which he soon died.

The details of the accident are given by two of plaintiff's witnesses, who were with him at the time. These men testified that, when some 100 feet from the tracks, Smith slackened the speed of his car; when the automobile reached the railroad, the gates were standing upright; he stopped "about 3 feet from the first track," leaned over the wheel and looked east and west; apparently observing no danger, he started across at a very low rate of speed, one witness saying a mile an hour and the other, not more than four miles; when the automobile was about to enter the third track, observing a locomotive and tender approaching thereon from the west, he quickly threw his car to the east, but not in time to avoid being struck; the automobile was pushed "about 25 or 30 feet," within which distance the locomotive, running backwards with the tender in front, came to a standstill.

Plaintiff's witnesses testified neither the locomotive nor tender carried a light, and that no bell was sounded to give warning of approach; but they admitted the presence of an electric are light at the corner of 17th street and Washington avenue, which shed its rays so that a view could be had to the west "from 100 to 150 feet."

One of plaintiff's witnesses did state "it was dewey, like foggy, like early in the morning . . . dark," adding that "looking into the light kind of blurred my eyes"; but, nevertheless, this man distinctly said he "could see as far as the light...