Waltosh v. Pennsylvania R. Co.

• Decision Date: 07 January 1918
• Docket Number: 149
• Citation: 103 A. 55,259 Pa. 372
• Parties: Waltosh, Appellant, v. Penna. R.R. Co
• Court: Pennsylvania Supreme Court

103 A. 55

259 Pa. 372

Waltosh, Appellant, v. Penna. R.R. Co

No. 149

Supreme Court of Pennsylvania

January 7, 1918

Argued September 25, 1917

Appeal, No. 149, Oct. T., 1917, by plaintiff, from order of C.P. Cambria Co., Sept. T., 1913, No. 248, refusing to take off a nonsuit, in case of William Waltosh v. Pennsylvania Railroad Company, a corporation. Reversed.

Trespass to recover damages for personal injuries. Before STEPHENS P.J.

The tracks referred to by number in the opinion of the Supreme Court are the main tracks. Track No. 4 is the last main track in the direction in which plaintiff was proceeding. Further facts appear by the opinion of the Supreme Court.

The trial judge entered a compulsory nonsuit, which the court in banc subsequently refused to take off. Plaintiff appealed.

Errors assigned were rulings on evidence and the refusal of the court to take off the nonsuit.

The second, fourth, fifth, seventh and eleventh assignments of error are sustained, and the judgment is reversed with a procedendo.

Walter E. Glass, specially admitted pro hac vice, for appellant.

F. J Hartmann, for appellee.

Before BROWN, C.J., MESTREZAT, POTTER, STEWART, MOSCHZISKER, FRAZER and WALLING, JJ.

OPINION

MR. JUSTICE POTTER:

Counsel for appellant complains of the refusal of the court below to take off a judgment of compulsory nonsuit, which was entered upon the ground that plaintiff did not "stop, look and listen" before entering upon a grade crossing of defendant's railroad, and was, therefore, guilty of contributory negligence.

It appears from the evidence that, at the place where the accident occurred, the defendant company maintains six tracks. Approaching the railroad from the south, at that point, as did plaintiff, one would find two side tracks, then an open space some twenty-four feet in width, and then four main tracks.

Plaintiff testified on his own behalf that, on the night of the accident, as he came down the street to the railroad, and approached the side tracks, he stopped on the south side, and looked up and down the track. He waited until a freight train had passed and then crossed the side tracks. Between the side tracks and the main tracks there was sufficient space for a wagon to stand. Plaintiff said that when he passed over the side tracks, he looked up and down the tracks, and heard no train coming down. When asked by his counsel if he listened for a train coming down, the question was excluded, as being leading. Plaintiff testified further that, while he was passing over the crossing, he listened and looked up. The weather was thick, snowing and sleeting and driving in his eyes. While plaintiff was on the crossing, he heard no train coming, nor did he see one. When his horse was on track No. 4, a man, who was crossing before him, called to him that a train was approaching. The sled was still on track No. 3. He struck the horse and it jumped across, but the train caught the sled in the rear and dashed it against the telephone pole, and threw him against the pole hard enough to inflict severe injuries. He did not see the train until he was caught by it. No bell was rung as the train approached the crossing, nor signal given by whistle. No witness, except plaintiff himself, testified as to whether he stopped, looked and listened. He spoke English imperfectly, and the testimony above cited was given through an interpreter.

In the opinion refusing to take off the nonsuit, the court below said: "The plaintiff in the present case had within his own knowledge all the facts and circumstances upon which he relied, among which was that of whether or not he stopped, looked and listened at the proper time and place. We hold that the burden of establishing these facts was upon the plaintiff, and having failed to disclose the fact that he listened for approaching trains immediately before entering upon the grade crossing over the main line track the conclusion is that he did not perform the duty upon him, that is to stop, look and listen, and therefore he could not, under the law, recover from the defendant company for the injuries sustained, regardless of the negligence of said company, and it was the duty of the court to so inform the jury or to sustain a motion for a compulsory nonsuit." This view of the law placed upon the plaintiff the burden of showing as part of his case, that he was not guilty of contributory negligence. The law does not go that far. In Ely v. Pittsburgh, Cincinnati, Chicago & St. Louis Ry., 158 Pa. 233, a grade crossing case, where the defense was that plaintiff had failed to observe the rule requiring him to stop, look and listen, it was said (p. 238): "In cases like the present, the plaintiff is not required to disprove contributory negligence, but only to make out a case clear of it. Unless, therefore, his negligence appears affirmatively, he is entitled to go to the jury on the general presumption against it."

In Coolbroth v. Penna. R.R. Co., 209 Pa. 433, Mr. Justice DEAN said (p. 439): "She [plaintiff] is bound to prove negligence on the part of defendant and that this negligence caused her injury; she is not bound to go further and prove that she did not contribute to the result by her own negligence. That burden is on defendant, unless the evidence adduced by her discloses contributory negligence."

In the present case, it will be noted plaintiff testified that before going upon the tracks, he stopped and looked, but did not expressly say that he listened. The act of stopping and looking up and down the tracks to see whether a train was approaching, would naturally involve listening for the train. As was said by Mr. Justice STERRETT in Penna. R.R. Co. v. Werner, 89 Pa. 59, 65, "To conclude that he did not listen while standing there, would require a strained and unnatural inference. The presumption would rather be that h...