Wachsmith v. Baltimore & O. R. Co.
| Decision Date | 02 January 1912 |
| Docket Number | 92 |
| Citation | 82 A. 755,233 Pa. 465 |
| Parties | Wachsmith, Appellant, v. Baltimore & Ohio Railroad Company |
| Court | Pennsylvania Supreme Court |
Argued October 11, 1911
Appeal, No. 92, Oct. T., 1911, by plaintiff, from judgment of C.P. Butler Co., March Term, 1910, No. 11, refusing to take off nonsuit in case of Edward Wachsmith v. Baltimore & Ohio Railroad Company. Reversed.
Trespass to recover damages for personal injuries. Before GALBREATH P.J.
On October 28, 1910, the plaintiff and A. E. Yaehnig were seated in the back seat of an automobile with Edward Yaehnig, a lunatic under their charge, seated between them, when the automobile was struck by an engine of the defendant company.
The court entered a judgment of nonsuit which it subsequently refused to take off. Plaintiff appealed.
Error assigned was refusal to take off nonsuit.
The judgment is reversed with a procedendo.
John R Henninger, for appellant.
R. P. Scott, for appellee
Before FELL, C.J., BROWN, MESTREZAT, POTTER, STEWART and MOSCHZISKER, JJ.
The owner and operator of an automobile was engaged to take a lunatic to an asylum. The plaintiff and another attendant, who were in charge of the lunatic, were seated with him on the back seat. They entered the borough of Butler on a street that crossed the defendant's road at grade. The buildings on either side of the street shut off any view of the railroad until a point eighteen or twenty feet from the tracks was reached, from which there was an unobstructed view for several hundred feet. The driver, when twenty-five or thirty feet from the track, slackened the speed of the automobile almost to a full stop and then suddenly started it forward and ran onto the crossing. The automobile was struck by a shifting engine of the approach of which no notice was given. The lunatic became excited as the speed of the automobile was slackened, and the plaintiff's attention was partly directed to him, but he looked and listened for trains. He testified that he saw the driver of the automobile slacken its speed until it was almost at a standstill and he thought he was going to bring it to a full stop. Both the plaintiff and the driver were familiar with the crossing.
The negligence of the driver was manifest, but his negligence cannot be imputed to the plaintiff. The plaintiff was not however, relieved from the duty of care. If he voluntarily went into a danger that he could have avoided, or joined the driver in testing a danger, his...
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